ANDRA JANE T DRAEGER, Complainant

KLISS QUICK SERVICE, 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 conclusion in that decision as its own, except that it makes the following modification:

In paragraph 20 of the administrative law judge's FINDINGS OF FACT the date "June 14, 2001" is deleted and the date "June 14, 2002" is substituted therefor.

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

Dated and mailed September 30, 2005
draegan . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In the petition for commission review the complainant argues that, prior to her diagnosis of multiple sclerosis (hereinafter "MS"), in June of 2002, she suffered from a variety of health conditions which required her to work different hours, and that as a result the respondent's owner, Mr. Kliss, perceived her as having a disability. The commission has considered this argument, but finds it unpersuasive. The complainant lost vision in her left eye in 1998, at which time she explained to Mr. Kliss that her eye problem might be a precursor to MS. Although the complainant did not tell Mr. Kliss that she had been diagnosed with MS at that time, it was commonly understood in the workplace that this was the case. After the complainant lost vision in her left eye, she continued to capably perform her job duties for the respondent, and Mr. Kliss testified that her physical condition did not affect her job in any way. While the record does indicate that the complainant was permitted to report for work late on occasion, at which times she would then stay later in the day, it was not established that she required a later work schedule because of any health condition, nor is it clear that Mr. Kliss, who testified that the complainant came in late because she was "not a morning person," believed this to be the case. Finally, it is not apparent that the need to report late for work on occasion, assuming this was due to a medical condition, constituted a limitation on the complainant's capacity to work, as contemplated by the statute.

The complainant next argues that, based upon Mr. Kliss' knowledge of MS, it is clear that he would have perceived a definitive diagnosis of MS as a severe and permanent disability. She therefore contends that, as of the date of her discharge, the respondent considered her to have a disability. However, while the respondent was aware that the complainant had been diagnosed with MS, not every health condition constitutes a disability within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act"). Here, the record contains nothing to indicate to what extent, if at all, the complainant's MS would affect her major life activities or limit her capacity to work, and the record contains no evidence as to Mr. Kliss' personal beliefs or perceptions on this subject. Absent such evidence, the commission is unable to speculate that the respondent perceived the complainant's MS as a disability, within the meaning of the Act, nor does it find that Mr. Kliss perceived the complainant as having a disability prior to receiving that diagnosis.

Even if the commission were to find that the complainant could be considered an individual with a disability under the Act, it would nonetheless see no reason to conclude that the disability was a factor in her discharge. In her brief the complainant suggests that the respondent's explanation for the discharge was pretextual, and asserts that the respondent recognized the potential level of accommodation she would now need and decided that, rather than accommodate her, it would terminate her employment. However, as stated above, there is no evidence that the complainant would have required accommodation for her MS, nor did the complainant demonstrate that the respondent believed this would be the case. Moreover, it should be noted that the complainant had had other medical issues over the years, apart from those which are claimed to constitute a disability, for which the respondent had provided accommodations readily and without complaint. Consequently, the commission sees no reason to believe that the respondent would have been unwilling to provide reasonable accommodations for the complainant's MS, if they were needed.

The respondent offered a legitimate nondiscriminatory explanation for its actions, which is well supported by the record and which, notwithstanding the complainant's argument to the contrary, the commission finds to be credible. Two months prior to her discharge the complainant attempted to fraudulently clear the books of a $2,552.60 personal debt to the respondent. When the complainant's actions were discovered, she falsely stated that she had paid the respondent and could produce her cancelled check to prove it. The complainant then attempted to cover up her actions by writing a check for the amount in question and depositing it in the respondent's account. While the respondent was willing to allow the complainant to continue her employment, in spite of her malfeasance, it soon became apparent that the complainant's conduct had resulted in a breakdown in trust and morale in the work place, and that it was adversely affecting the complainant's ability to perform her job duties. Subsequently, when converting from salaried to hourly status at her own request, the complainant calculated her hourly salary in a manner that was more favorable to herself than was warranted and, when confronted about the issue by the respondent, took a nonchalant attitude and suggested that it was unimportant. It was these matters, and not the diagnosis of MS, which caused the respondent to terminate the complainant's employment. The dismissal of the complaint is affirmed.

cc:
Attorney ReAnna C. Grabow
Attorney Michael J. Cieslewicz

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