ROSE WODACK, Complainant

THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

The FINDINGS OF PROBABLE FACT and MEMORANDUM OPINION are deleted and the following substituted for purposes of clarification and to more accurately reflect the commission's decision rationale:

2. The respondent owns and operates, among other facilities, Scandia Village in Sister Bay, Wisconsin, a long-term care residential facility.

3. Scandia Village includes independent living apartments (Meadows), assisted living (Woodview), and skilled nursing care in its 60-bed Care Center, which includes a 15-bed Alzheimer's unit. The residential area of the Care Center consisted of the 100 wing and the 200 wing. At all times relevant here, cats or dogs resided in Meadows, Woodview, and the Alzheimer's unit.

4. The complainant originally worked for the respondent in the Care Center as a certified nursing assistant (CNA) from 1993 through some time in September of 1999.

5. The complainant returned to work for the respondent as a CNA in the Care Center on a part-time basis in October of 2000, and on a full-time basis in January or February of 2001. Kathy Wagner, the Director of Nursing Services, made these hiring decisions. Upon returning to work for the respondent, the complainant was assigned to the evening (2 p.m. to 10:30 p.m.) shift at her request.

6. CNA's in the Care Center did not have permanent assignments to a particular section of a wing, but instead rotated through sections on a monthly basis. This policy enabled CNA's to become familiar with the needs of each resident without the residents having to undergo frequent change of caregivers. Because of her allergies, the complainant was never assigned to the Alzheimer's unit in the Care Center where a cat was generally present. This was the only exception the respondent made to its assignment rotation policy.

7. From October of 2000 through July of 2002, there were 45 CNA's working in the Care Center. Twelve of these CNA's staffed the Alzheimer's unit. More than one-third of the CNA's would be assigned to the evening shift.

8. During the 1990's, Scandia Village made a commitment, consistent with an emerging philosophy in the industry, to make the Care Center environment more like a home by, among other changes, bringing children, plants, and animals, particularly cats and dogs which residents could pet and hold, into the facility. David Boock, the Administrator of Scandia Village during the time period relevant to this matter, continued this commitment. There are research results which suggest that this approach, sometimes referred to as "Edenization," may have positive therapeutic effects on residents such as reduced anxiety and lower blood pressure and heart rates. The animal component was first introduced by bringing a dog and an animal therapist into the Care Center on Thursdays, and by permitting families, friends, and staff to bring animals into the Care Center. Boock planned, if these visits were successful, to obtain a dog to reside in the Care Center.

9. On November 20, 2000, the complainant submitted a note to Wagner which stated as follows:

With all the dogs and cats coming into the facility I will either have to go on the night shift or else quit working here. I can't put myself through this suffering.

10. On December 5, 2000, the complainant had an allergic reaction after several dogs were brought into the Care Center. The licensed practical nurse (LPN) to whom the complainant reported was away from the area on break at the time, so the complainant brought her concerns to the LPN's supervisor, a registered nurse (RN). The RN asked to examine the complainant to determine the nature and severity of the reaction so that she could determine whether it was necessary for the complainant to receive treatment and, if so, whether treatment should be administered on site. The complainant refused and asked to leave work instead. The RN told the complainant that she did not have permission to leave and would be disciplined if she left the work site. The complainant then located the LPN who granted her request to leave work. The complainant then drove 35 miles to a hospital emergency room to receive treatment. The complainant received a disciplinary warning for violating the RN's directive that she not leave the work site.

11. The complainant, some time after December 7, 2000, submitted to Wagner a document prepared by her treating physician, James R. Mattson, which states as follows, as relevant here:

She complains of watery and itchy eyes and nose along with shortness of breath. She feels that coming into contact with pets clearly sets off her symptoms. She has almost immediate reactions with exposure to either dogs or cats...She has been taking no medicine. She ended up in the ER about 2 days ago. She was given an Albuterol spray, but has not used it yet. Mainly she wanted to get here with no medicine on board....

A pulmonary function test demonstrates clearly that she has asthma. She is also allergic to dogs and cats...She will be treated with avoidance of pets, Albuterol 2 sprays 3 times per day, and Flovent 220.

I think there is a fair chance that she will have trouble if she returns to work with all the exposure to dogs and cats. She has almost unavoidable dog and cat exposure in the nursing home where she works. She will use a peak flow meter to monitor her progress. She may well have to switch jobs.

12. In response to this communication from Dr. Mattson, the respondent, through Wagner and Boock, posted framed notices on December 9, 2000, at each entrance to the Care Center stating that, although pet visitation was an important part of facility activities, due to a serious allergy of one of its staff members, pet visits were to be concluded by 1:30 p.m. Although certain of these notices were removed after December 9, the respondent played no role in their removal. The complainant replaced a notice when she observed one had been removed.

13. In February of 2001, as part of the first phase of a Care Center remodeling project, carpeting was installed to replace the tile flooring in the 200 wing and the front half of the 100 wing. The next phase of this remodeling project included plans to carpet the remaining half of the 100 wing. The complainant believed that dander from visiting dogs was becoming imbedded in the carpet and was exacerbating the symptoms of her allergies.

14. On February 12, 2001, the complainant requested of Wagner and Boock that, as an accommodation of her allergy disability, she be assigned to work only in the uncarpeted half of the 100 wing.

15. Wagner consulted with certain CNA's assigned to the evening shift who generally told her that they would prefer continuing to have rotating rather than permanent assignments.

16. The complainant talked to four or five CNA's assigned to the evening shift who told her they would not object if she had a permanent assignment to the uncarpeted half of the 100 wing.

17. On February 14, 2001, the complainant and Wagner met. Wagner authored a contemporaneous memo which accurately summarizes as follows what she communicated to the complainant at this meeting:

I told Rose that I feel we have been accommodating her requests by asking families to keep pets away from the care center after 1:30 PM (Rose works 2-10:30 PM). I have talked to staff and they prefer rotating resident assignments on a monthly basis. If the remainder of the 100-wing hallway will be carpeted this spring, the assignment will not matter. Carpets are cleaned daily and the occurrence of pets is virtually non-existent on the evening shift.

18. Boock, in a letter to the complainant dated February 16, 2001, stated as follows, as relevant here:

In response to your request for "reasonable accommodation" under the Americans with Disabilities Act in accordance with our employee handbook, I am of the opinion that we have made reasonable accommodation for you. As you are aware, the pet visitation statement has been posted since December 9 at all entrances, and we have significantly decreased any pets visiting other than at the times posted. I am aware of your request to work the same area of the care center on a permanent basis, and also the policy for monthly rotation of assignments. We wish to be fair and equal in our treatment of staff and, unless the PM C.N.A.'s all can agree on your permanent assignment, I believe we cannot accommodate your request. I know you have also been advised of the plan to complete carpeting the care center hallways in the near future. If the carpeting is an issue for you it will not matter which hallway you are working.

19. Boock originally planned to obtain a dog to reside in the Care Center in April of 2001 but delayed this plan when a suitable dog could not be located.

20. On October 4, 2001, the complainant experienced breathing difficulties after exposure to an animal at work. In a note to respondent dated October 17, 2001, Paul Sanders, M.D., stated that the complainant had been unable to work on October 4 and 5 due to her asthma and allergies.

21. Between October 4, 2001, and June of 2002, the complainant had one allergic reaction.

21. Some time in 2001, the Thursday pet therapy visit each week was changed from mornings to 3:00 p.m. In a note to respondent dated October 11, 2001, Dr. Mattson stated as follows, as relevant here:

Rose complains that the dogs are still being brought into the facility at 3:00 p.m. on Thursday afternoon as a pet visit...Rose wants a note stating that she must vacate the area in the event of dog exposure. In fact there may be times when she will have to leave the building. Otherwise she would have marked difficulty breathing which makes her very nervous...Last Thursday she was seen in walk-in clinic in Sturgeon Bay because of her symptoms. The doctor there told her that her situation could be very serious if she didn't avoid the pets and leave the environment.

23. On June 3, 2002, the complainant received a phone call at work from her mother informing her that her second cousin had died. The complainant left the facility because this news upset her. As a result, the Care Center was left with only four staff members to care for 57 residents. This level of staffing did not meet applicable requirements. The complainant was issued a written disciplinary warning as a result. The respondent denied the complainant's request for paid leave to attend her second cousin's funeral since, pursuant to its leave policy, paid leave is reserved for the funerals of immediate family members only. The complainant's second cousin was not a member of her immediate family.

24. In a letter to the complainant dated June 12, 2002, Boock provided notice that, within the next 30 days, the rest of the 100 wing would be carpeted and residential pets would be added to the Care Center. Boock suggested in this letter that the complainant contact her physician "about immunizations in order to continue working in an environment where pets will be present;" and that, "[i]f these changes represent an exposure you cannot work with, you may need to explore opportunities in a facility which better provides you with the environment you desire."

25. The complainant filed an internal grievance on June 15, 2002, alleging that, although "[t]hings were fine until now," Boock's June 12 letter constituted harassment. This grievance also mentioned the written disciplinary warning issued in regard to the June 3, 2002, incident.

26. During the month of June of 2002, Wagner inquired of complainant twice a week what her plans were to address the introduction of residential pets in the Care Center. During this period of time, Wagner told the complainant several times that, once pets took up residence in the Care Center, she would need to present a medical release to the respondent in order to work. Wagner did not consider it unlikely that the complainant would obtain such a release since Wagner has asthma and allergies similar to complainant's, and had been able to control them medically. Complainant complained to Boock that this constituted harassment. Wagner ceased making these inquiries.

27. The respondent, through Wagner, offered the complainant the opportunity to transfer to the dietary unit, but the complainant refused this transfer offer when she learned that her hourly rate of pay would decrease as a result.

28. In a handwritten note to Boock dated July 9, 2002, the complainant indicated that she did not feel that respondent was accommodating her allergy condition, and that, due to her concern that at least one resident was allergic to dogs, she would be contacting the state department of health.

29. During the time period relevant here, none of the residents of the Care Center had a diagnosed allergy to animals, or suffered any adverse physical reaction to animals brought into the Care Center.

30. In a document prepared by allergist Joseph Zondlo, M.D., on July 11, 2002, and copied to Boock, Dr. Zondlo stated that, in his professional opinion, the complainant suffered from allergic rhinitis and asthma, and the recommended course of therapy included avoidance of cats and dogs, use of the medications Singulair and Albuterol, and allergy immunotherapy. Dr. Zondlo stated in this document that, "Avoidance of animals is paramount in the treatment of Rose and hopefully over several years of allergy immunotherapy, Rose may become more tolerant of animal exposure."

31. In a certified letter to the complainant dated and mailed July 12, 2002, Everett Mattke, Scandia Village's Human Resources Manager, stated as follows, as relevant here:

As you know, as part of our pet therapy program for the residents of Scandia Village, a dog will be boarding on premises in the building where you presently work beginning on Monday, July 15.

In light of our past discussions regarding your asthma/allergies to cats and dogs, we want to make sure this does not pose a threat to your health or safety. The latest information we have from your physicians indicates that, even with medication, exposure to cats and dogs may precipitate allergic symptoms. In light of this, we are requesting a physicians' slip releasing you to work in this environment. In the meantime, if you are interested in any other position that might better accommodated your condition, or if you would like to take an unpaid medical leave of absence to explore other treatment options, please let me know.

In closing, we would like to arrive at some workable solution that accommodates your condition while allowing our pet therapy program to move forward as planned. If you have any other ideas you would like us to consider, please don't hesitate to bring them to my attention.

32. The complainant prepared a letter which she presented to Wagner upon reporting to work on July 15, 2002. In this letter, the complainant states that, because of the presence of a dog in the Care Center, she had no alternative, given her medical condition, but to leave work, and that the respondent's offer of a dietary position was improper and unacceptable because she is unable to be in a building where a dog is present and she would have to take a cut in pay. The complainant, Wagner, and Mattke met on July 15. The complainant was asked during this meeting whether she had obtained a release from her physician to work in the Care Center now that a dog was going to be present on a regular basis and she indicated she had not. Wagner and Mattke told the complainant she could not return to work until she obtained such a release. The complainant then left the work site. The complainant has not worked for Scandia Village since July 15, 2002. The complainant has not provided respondent a work release since July 15, 2002.

33. Boock was unable to obtain a suitable dog to reside at the Care Center by July 15, 2002. As a result, staff members and residents' family members began bringing their dogs to the Care Center as of that date while Boock continued to search for a suitable dog. Not long after July 15, 2002, Boock located a suitable dog which began residing at the Care Center.

34. The installation of the remaining carpeting in the 100 wing was scheduled for late June/early July of 2002. However, some of the carpeting was lost during shipment, and, as a result, installation did not occur until August 19, 2002.

35. The only accommodation acceptable to the complainant on and after July 15, 2002, was the exclusion of dogs and cats from areas of the Care Center other than the Alzheimer's unit.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed August 5, 2005
wodacro . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The complainant alleges, inter alia, that she was discriminated against when she was issued a disciplinary warning on December 11, 2000, and when, on February 14, 2001, respondent denied her request for permanent assignment to the uncarpeted section of the 100 wing.

The Wisconsin Fair Employment Act (WFEA) requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1).

The complainant's charge was filed on October 14, 2002. The actionable 300-day period would, as result, commence on December 18, 2001. It is obvious that neither of the actions referenced above occurred within this period. Complainant argues, however, that the complaint should be regarded as timely filed in regard to these actions through application of the continuing violation doctrine. The commission disagrees.

The U. S. Supreme Court's decision in AMTRAK v. Morgan, 536 U.S.101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), clarified the state of the law regarding the continuing violation doctrine's application in equal rights cases. In this decision, the Supreme Court identifies two classes of employment actions, i.e., discrete acts, and harassing acts underlying hostile work environment claims, and holds that discrete acts are generally not subject to application of the continuing violation doctrine but harassing acts generally are. In its decision, the Court identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, award of compensation. The Court addressed the EEOC's and certain circuits' prior application of the continuing violation doctrine to serial or systemic violations and concluded that, "There is simply no indication [in the relevant language of Title VII] that the term 'practice' converts related discrete acts into a single unlawful practice for the purpose of timely filing. . . . We have repeatedly interpreted the term 'practice' to apply to a discrete act or single 'occurrence' even when it has a connection to other acts."

The December 2000 disciplinary warning, and the February 2001 denial of complainant's request for a permanent assignment, were discrete personnel actions not susceptible to application of the continuing violation doctrine. They were not, as complainant is apparently arguing here, acts of harassment or policies of general application, but instead concrete and separable decisions rendered by management in regard to the complainant's employment. See, Lau v. LATEC Credit Union, ERD Case No. CR200103183 (LIRC Feb. 7, 2003); Koenigsaecker v. City of Madison, ERD Case No. CR200103889 (LIRC March 11, 2005). 
  

Disability discrimination

The complainant alleges that she was discriminated against on the basis of her disability, i.e., asthma/allergies to animals, when she was issued a disciplinary warning on June 3, 2002; when she was harassed by Boock and Wagner in June of 2002; when the signs limiting pet visitation to hours she was not at work were removed in 2001 and 2002; and when she was effectively terminated on July 15, 2002.

The complainant's initial burden in a disability discrimination case is to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998).

The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
(b) Has a record of such an impairment; or
(c) Is perceived as having such an impairment.

An "impairment" for purposes of the WFEA is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). The inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis.2d 706, 350 N.W.2d 120 (1984); Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).

The hearing record includes documents ostensibly signed by physicians stating that the complainant had been diagnosed with asthma and allergic rhinitis, and that this condition required that she avoid cats and dogs. This diagnosis would support a conclusion that the complainant was limited in her capacity to work as a CNA at Scandia Village on and after July 15, 2002, when dogs were first present on a frequent and, ultimately, permanent basis.

The manner in which this medical evidence became a part of the record here, however, is of concern. The physicians who ostensibly authored these documents did not testify at hearing and, as a result, these documents must be considered uncorroborated hearsay evidence. Moreover, these documents were not certified, and had no other circumstantial guarantees of trustworthiness sufficient to qualify for application of the hearsay exception set forth in Wis. Stat. 908.03(24). See, Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001). The commission concludes as a result that the complainant failed to show by competent medical evidence that she suffered from an actual impairment within the meaning of the WFEA. However, the fact that Wagner and Boock were aware of the work restrictions imposed by the complainant's physicians and requested that she obtain a medical release in order to perform her CNA job duties on and after July 15, 2002, supports the conclusion, under the circumstances present here, that the respondent had reason to perceive the complainant as an individual with a disability within the meaning of Wis. Stat. § 111.32(8)(c). See, Kasuboski v. Fonda Group, Inc., ERD Case No. CR200100645 (LIRC April 30, 2004); Hurckman v. AMPI, ERD Case No. CR200300272 (LIRC March 22, 2005).

Once the complainant in a disability discrimination case establishes that she qualifies as an individual with a disability, she must show that the employer took the allegedly discriminatory actions because of this disability.

The first allegedly discriminatory action alleged by the complainant here is the disciplinary warning issued by the respondent in regard to her absence on June 3, 2002, after she learned at work that her second cousin had died. The record establishes, however, that the respondent was reasonably justified in issuing this warning. The complainant, who had direct patient care responsibilities, left the work site in response to a non-emergency personal situation, and left the respondent, which, as a skilled nursing facility, is subject to strict staffing requirements, without the requisite number of caregivers for a period of time. The complainant failed to show that this disciplinary warning was issued because of her disability.

The complainant also alleges that she was discriminated against based on disability when she was harassed by Boock and Wagner in June of 2002. According to the complainant, this harassment took the form of the June 12 letter from Boock (see, Finding of Fact 24, above), and Wagner's inquiries regarding the complainant's plans once dogs were introduced as frequent visitors to, or residents of, the Care Center. Again, the record establishes that these actions were reasonably justified. The complainant had made it clear, through her representations and those of her physicians, that working in an environment where dogs and cats were frequently present could trigger the symptoms of her asthma/allergies, and respondent was justified as a result in its efforts to determine whether the complainant's physicians were of the opinion that she could safely work in such an environment and, if so, under what conditions; whether complainant intended to accept its offers of reassignment or unpaid medical leave; and whether there was some accommodation other than the exclusion of dogs and cats from the Care Center which would meet her medical needs. The respondent's inquiries, even accepting the complainant's assertion that they were presented in a critical and belittling manner, were not sufficiently severe or pervasive to constitute harassment, and were reasonably justified under the circumstances.

The complainant next alleges that she was discriminated against on the basis of disability when the respondent refused her requests for reasonable accommodation. As discussed above, the respondent's denial of her request for permanent assignment to the uncarpeted section of the 100 wing is not actionable here because it was not timely charged. The only remaining action included by the complainant within this allegation is the removal of certain of the five signs posted to remind staff and visitors, prior to July 15, 2002, of the requirement that animal visitation be concluded by 1:30 p.m. First, the record does not establish that Wagner or Boock or any other member of management had any role in removing these signs or were even aware that any signs had been removed. Furthermore, the record does not establish that, during and due to the absence of any of these signs, the subject pet visitation rule was not enforced, or any cats or dogs, other than the therapy dog brought in on Thursdays, were present in the Care Center after 2:00 p.m. The complainant failed to prove that the respondent did not fulfill its duty of reasonable accommodation in this regard.

Finally, the complainant alleges that she was discriminated against when she was effectively discharged by the respondent on July 15, 2002. There is no question that the complainant was effectively discharged by the respondent because of her disability. Essentially, the respondent did not permit the complainant to continue to work in her CNA position because of information it had received from her physicians that she could not work around dogs and cats and would probably not be able to do so, even with appropriate use of medications and immunotherapy, for a period of several years.

The analysis of the discharge allegation would then turn to the question of reasonable accommodation.

There are two separate steps to the "reasonable accommodation" analysis: (1) to determine whether the accommodation is a reasonable one, i.e., whether it effectively enables the disabled individual to perform the job-related responsibilities of her employment; and (2) to determine whether it imposes a hardship on the employer. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988); Target Stores, supra.

The only accommodation which the complainant argues was a reasonable one was the exclusion of cats and dogs from areas of the Care Center other than the Alzheimer's unit. However, the presence of pets was an integral part of the Edenization project to which Scandia Village had maintained a long-standing commitment. This project, which was designed to be implemented gradually over a period of years, was intended to provide a more cheerful and homelike environment for residents and, through such methods as the introduction of plants, children, and pets, to actually improve the residents' physical condition. In fact, similar programs in other facilities had been shown to reduce anxiety and lower blood pressure and heart rates. In view of Scandia's long-standing commitment to this project, the therapeutic goals of this project, and the positive results it had achieved in other settings, it would have been a hardship for the respondent, and for the population it served, to be unable to implement one of the project's key components. An accommodation's impact on the ability of an employer to achieve legitimate program goals is an appropriate consideration in determining whether the accommodation would impose a hardship. See, Krause v. Marquette University, ERD Case No. 8850801 (LIRC June 30, 1992); Kinion v. Portage Community Schools, ERD Case No. CR 200003066 (LIRC Sept. 19, 2003).

The commission also notes that the respondent had provided reasonable accommodations to the complainant in the past, e.g., exclusion of pets from the Care Center during her shift and agreement not to assign her to the Alzheimer's unit where a cat resided, and, during the period prior to her effective discharge, continued to explore possible alternative accommodations with her, e.g., transfer to a kitchen position and unpaid medical leave, which the complainant refused.

The commission concludes that the complainant failed to sustain her burden to prove that the respondent violated the WFEA when it effectively discharged her from her CNA position on July 15, 2002.  
 

Age Discrimination

The complainant also alleges that she was discriminated against on the basis of age in regard to the terms and conditions of her employment and her effective discharge.

In regard to the terms and conditions of the complainant's employment, the analysis set forth above in regard to the complainant's contention that she was discriminated against on the basis of disability when she was issued disciplinary warnings in December of 2000 and June of 2002, would apply as well in regard to her allegations of age discrimination in regard to these actions.

In regard to the discharge allegation, the complainant failed to demonstrate a prima facie case of age discrimination since she did not show that she was replaced by a younger worker. Moreover, the complainant failed to establish any connection between her age and her failure to perform work for the respondent on or after July 15, 2002, due to medical considerations.

The complainant failed to sustain her burden to prove age discrimination. 
 

Retaliation

It is not entirely clear what the complainant is alleging as the acts of alleged retaliation here. In her amended charge, she states that her work schedule was modified, she was criticized, she was "belated," by which the commission concludes that she meant "belittled," and she was put into areas where there were pets.

In order to state a claim of retaliation, a complainant must show that she engaged in a protected activity. The only activity of record which satisfies this requirement is the internal grievance filed by the complainant on June 15, 2002.

The only alleged criticism and belittling which the complainant describes in the record as occurring after June 15, 2002, were Wagner's inquiries as to her plans once dogs became frequent visitors or residents of the Care Center. As concluded above, Wagner's actions were neither unjustified nor harassing.

The commission infers that the complainant, by reference to the modification of her work schedule, is alluding to the respondent's failure to schedule her for work after July 15, 2002. However, as concluded above, this action was reasonably justified given the information provided by the complainant's physicians to the effect that she would be unable to work for a period of several years in a setting in which cats or dogs were present, even with appropriate medication and immunotherapy, and the respondent's legitimate interests in implementing the pet component of its Edenization project.

Finally, the commission infers that the complainant, when she refers to being placed in areas where pets were present, is alluding to those instances prior to June 15, 2002, in which pets were present in the Care Center before or during her shift. Clearly, those instances could not have occurred in retaliation for her filing of the internal grievance since they occurred prior to the date on which that grievance was filed.

The complainant failed to sustain her burden to prove that she was retaliated against for engaging in a protected activity in violation of the WFEA.

cc:
Attorney Thomas S. Burke
Attorney Timothy D. Loudon

Appealed to Circuit Court.  Affirmed March 7, 2006.

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