KATHLEEN M SEIL, Complainant

DAIRY FARMERS OF AMERICA, 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 fourth sentence of numbered paragraph 3. of the FINDINGS OF FACT is revised to read as follows:

Under DFA's policy, employees receive occurrences for tardiness, absences, leaving work early, and no call/no show.

The words "leaving work early, on" are deleted from the fifth sentence of numbered paragraph 3. of the FINDINGS OF FACT.

The word "severe" is substituted for the word "sever" in the first sentence of numbered paragraph 7. of the FINDINGS OF FACT.

The words "no call/no show" are substituted for the words "no/no show" in the fourth sentence of numbered paragraph 7. of the FINDINGS OF FACT.

The word "absenteeism" is inserted after the word "excessive" in the language following the reference to "June 12, 1989" in numbered paragraph 9. of the FINDINGS OF FACT.

"1997" is substituted for "197" after "April 21" in the penultimate sentence in numbered paragraph 9. of the FINDINGS OF FACT.

"1,112.25" is substituted for "1,112, 25" in the first sentence of numbered paragraph 12. of the FINDINGS OF FACT.

The sixth sentence of numbered paragraph 27. of the FINDINGS OF FACT is modified to read as follows:

Seil's doctor's response made no attempt to link any of her specific absences to a particular medical condition.

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

Dated and mailed August 26, 2005
seilkat . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Age discrimination

The complainant failed to show that younger employees with comparable attendance records were treated more favorably by the respondent than she was in regard to her termination or otherwise.

The complainant argues that the respondent did not terminate her employment despite her prior unsatisfactory attendance record in her 20's and 30's but waited to do so until she was in her 50's. However, the complainant failed to prove that her prior attendance record was comparable to the record upon which her termination was based, or would have justified her termination pursuant to the respondent's prior relevant attendance policies. 
 

Disability discrimination-failure to accommodate

The complainant's theory in this regard relates to the respondent's implementation of an hours restriction policy which, in effect, no longer accommodated medical restrictions on employees' hours other than through the granting of medical leave.

However, the implementation of this policy had only two actual adverse consequences for complainant, i.e., her involuntary September 2001 request that her treating physician lift her restriction of 8.5 work hours per day/40 work hours per week, and her assignment to work overtime on December 9, 2001.

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 17, 2002. Neither of the two discrete actions under consideration here fell within the actionable 300-day period. As a result, the complainant's allegations of discrimination relating to the respondent's 2001 hours restriction policy were untimely filed. 
 

Disability discrimination-termination

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 (1998). The complainant failed to sustain this burden here.

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).

Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. Connecticut General Life Ins. Co. v. DILHR, 86 Wis.2d 393, 273 N.W.2d 206 (1979). See, also, Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005); Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003); Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC Sept. 16, 2004). There is no indication in the record that the existence of a cognizable impairment is undisputed here.

The medical evidence of record generally consists of return to work slips and FMLA forms completed by complainant's treating physicians, and a 1999 letter summarizing the results of an independent medical examination. 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); Wodack v. The Evangelical Lutheran Good Samaritan Society, ERD Case No. CR2002304449 (LIRC Aug. 5, 2005). The commission concludes as a result that the complainant failed to show by competent medical evidence the existence, nature, extent, or permanence of any impairment. The complainant's testimony that she suffered a heart attack in 1998 from which she has not fully recovered, and that she was diagnosed with diabetes in 2000 or 2001 which requires frequent monitoring and medication and has resulted in occasional absences from work, is not sufficient, without more, to satisfy this burden. See, Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005) (diagnosis of diabetes insufficient to establish existence of disability); Toborg v. ShopKo, ERD Case No. CR200102517 (LIRC March 30, 2005) (use of prescription medication and occasional dizziness insufficient to establish heart condition as disability). Moreover, even if competent medical evidence establishing the existence of a cognizable impairment were a part of the record here, the evidence does not show that the complainant's diabetes or heart condition placed a substantial limitation on a major life activity or on her capacity to work. The requirement that she medicate/monitor and restrict herself to full-time work, and her occasional absences due to symptoms of her diabetes would not satisfy this standard.

Finally, the fact that these documents did not state any work restrictions, other than the restriction to full-time work, i.e., 8 hours a day, forty hours a week, and that the complainant attributed none of the nine absences during the last ten months of her employment to her diabetes or heart condition, militate against a conclusion that the respondent would reasonably have perceived the complainant to be disabled by such conditions at the time of her termination. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004); Toborg, supra.

Even if the complainant had succeeded in establishing that she was an individual with a disability within the meaning of the WFEA, she failed to show that she was discriminated against on this basis.

The complainant failed to show that absences resulting from her diabetes or heart condition were significant factors in her termination. In fact, the complainant attributed only three of the eleven unexcused absences, upon which the respondent based her termination, to her diabetes and none to her heart condition, and attributed none of her final six unexcused absences to her claimed disabilities. In addition, the complainant does not contend that the disputed June 16, 2002, no call/no show, or the undisputed August 15 and 16, 2002, no call/no shows, resulted in any way from her claimed disabilities.

The complainant also failed to show that she was treated less favorably than non-disabled employees with attendance records comparable to hers.

The complainant argues that the respondent's failure to provide her with an ongoing, detailed accounting of those absences which were excused based on FMLA eligibility or otherwise and those which were unexcused, tended to demonstrate the existence of a discriminatory animus. However, the complainant failed to show that this was a routine part of the respondent's attendance accounting practices or that such an accounting was provided to other employees. Moreover, the complainant failed to show that she ever requested such an accounting.

If the complainant had succeeded in establishing that she was discriminated against based on her claimed disabilities when she was terminated by the respondent, the analysis would then turn to the question of reasonable accommodation.

The record does not show that the complainant proposed or requested any accommodation which would have enabled her to satisfy respondent's reasonable attendance requirements. Taking into account her attendance record over the course of her employment, it appears that the only accommodation which would have enabled her to do that was an exemption from such requirements. However, an employer is generally not required to indefinitely suspend the application of a reasonable attendance policy to accommodate a disability. See, Gordon v. Good Samaritan Medical Center, (LIRC April 26, 1988); Gee v. ASAA Technology, Inc., ERD Case No. 8901783 (LIRC Jan. 15, 1993).

Complainant further argues that respondent's failure to comply with federal FMLA requirements during her last year of employment constitutes a per se failure to accommodate. However, these requirements are not applicable here since the record shows that the complainant was not eligible for federal FMLA protection at any time during her last year of employment.

cc:
Attorney Andrea F. Hoeschen
Attorney John E. Murray

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uploaded 2005/08/29