CARRIE WUCHERPFENNIG, Complainant

PERSONAL DEVELOPMENT CENTER, 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.

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

Dated and mailed June 29, 2006
wucheca . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Procedural background

In her charge of discrimination, the complainant alleges that she was discriminated against on the basis of disability (migraine headaches), race/ancestry (Native American), and age when the respondent failed to reasonably accommodate her disability, when she was issued a written warning in February of 2002, when she was terminated in March of 2002, and, at least implicitly, when she was harassed.

An ERD investigator issued a no probable cause initial determination. The complainant appealed and ALJ Lawent held the probable cause hearing. ALJ Lawent found no probable cause in regard to the accommodation, terms and conditions (written warning), and harassment allegations, but found probable cause in regard to the termination allegation. ALJ Olstad held the hearing on the merits of the termination allegation, and decided that the complainant had failed to prove discrimination.

Reasonable accommodation/terms and conditions

Complainant has indicated in her petition (see correspondence dated October 11, 2005) that she is appealing ALJ Lawent's decision as it relates to the reasonable accommodation issue, and to the age/disability aspects of the terms and conditions issue.

In her argument to the commission, however, the complainant did not specifically address these issues.

The only accommodation mentioned by the complainant in this matter is the ability to go home from work, or to take time off from work, when she was experiencing a severe migraine headache that was not responding to over-the-counter or prescription medications. The record, however, shows that the respondent consistently permitted the complainant to do this. Although the respondent reasonably expected the FRC program managed by the complainant to be open its scheduled hours, the record shows that the respondent permitted the complainant to stay home from work or to leave work when she was ill; allowed her to utilize substitute coverage during her absences; located substitute coverage for her; closed the FRC when no coverage was available; and approved her use of leave time (paid days off) to cover her absences. The commission agrees with ALJ Lawent that probable cause was not shown in this regard.

It is apparent from the history and the record in this matter that the terms and conditions issue relates to the written warning the complainant was issued on February 5, 2002. The record shows that this warning was reasonably merited. The complainant, even though she was not a trained domestic abuse intake worker and someone else was available at the time to assist the client, left the FRC unattended during scheduled hours to attend to a walk-in domestic abuse client; engaged this client in discussion of his confidential domestic abuse concerns in a public area of the PDC offices; and provided this client with personal information regarding the PDC's primary domestic abuse staffer (Molly Stout) to the effect that the client worked with Stout's husband at a local hospital. Even if the client had reason to be aware of this information about Stout prior to this contact with the complainant, the record does not show that the complainant would have had any reason to know that. Given the sensitive and potentially volatile nature of the domestic abuse matters routinely handled by Stout, it should have been apparent to the complainant that she should not be giving out personal information about Stout to individuals such as this client.

The complainant failed to show not only that the discipline was not warranted, but also that similarly situated employees had been treated differently. As a result, the complainant did not sustain her burden to show that probable cause exists to believe that she was discriminated against when she was issued a written warning in February of 2002.

Termination

The complainant alleges that she was discriminated against based on disability, race, and age when she was terminated on March 8, 2002. This is the sole focus of her argument to the commission.

It is first interesting to note that, at least twice, once in a discussion with Phalen and once in correspondence to the ERD investigator, the complainant attributed her discharge and the breakdown in her work relationship with Phalen to the incident of July 5, 2001, which led to her verbal warning, i.e., to "the Ann Boson thing," rather than to her age, disability, or race/ancestry.

The complainant has advanced a theory of disparate treatment. Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172-173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see, also, Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).  
 

Age Discrimination

It is axiomatic that, in order to establish a prima facie case of discrimination, of which intent is a necessary element, a complainant must prove that the alleged discriminator was aware, or had reason to be aware, that the complainant was a member of the protected group. The complainant here failed to make that showing. The record establishes that the complainant was 42 years of age at the time of her termination, was youthful looking, and was one of the younger employees of the PDC. Phalen testified, without rebuttal, that she was not aware, had no reason to be aware, and did not perceive, that the complainant was 40 years of age or older during the relevant time period.

If the complainant had succeeded in establishing a prima facie case of age discrimination, the burden would then shift to the respondent to articulate a legitimate, non-discriminatory reason for the discharge decision. The respondent satisfied this burden by explaining that, after receiving a written warning, the complainant failed to work cooperatively with her supervisor.

The burden would then shift to the complainant to demonstrate pretext.

The complainant first argues that the respondent's failure to complete the steps of the progressive discipline process outlined in its employee handbook demonstrates pretext. However, a careful reading of the relevant handbook language reveals that these steps are not intended to be mandatory, e.g., the directory "may" or "could" are used rather than the mandatory "shall," and broad discretion is accorded the PDC director to determine the appropriate level of discipline based upon the nature of the employee actions under consideration. It should also be noted in this regard that the record does not establish that, in meting out discipline, Phalen or the respondent had consistently followed these steps.

The complainant also appears to be arguing that, since the respondent's discharge of the complainant was not reasonably justified by the complainant's actions, pretext has been established. However, the record shows that, after receiving the written warning, the complainant, knowing that Phalen, her supervisor, was under pressure to complete the grant applications for the PDC's and FRC's annual funding, became less cooperative and less independent in carrying out her responsibilities, and offered challenges to Phalen's authority. The record shows that it was Phalen's increasing, and reasonably justified, frustration with this situation that resulted in the complainant's discharge. For example, the complainant refused Phalen's request to meet with her, and suggested that Phalen schedule time with her outside of work hours. When Phalen requested that the complainant shut the office door so they could have a confidential discussion, the complainant refused. When Phalen imposed a written warning which the complainant admits was warranted, the complainant threatened to bring a libel/slander action against the respondent. When Phalen justifiably requested further information regarding one of the complainant's flex time requests, the complainant, rather than providing this information, challenged Phalen's motives in requesting it. It should also be noted that it was not just Phalen's judgment that the complainant should be discharged. Phalen consulted extensively with members of the PDC executive and personnel committees, accurately sharing with them the details of complainant's actions, and these committee members agreed that discharge was appropriate. The complainant has not alleged that any of these board members were motivated by a discriminatory animus, and, in fact, the record does not show that these board members had reason to be aware that the complainant was 40 years of age or older at the time.

The complainant also points to statements made by board members complimenting her management of the FRC as evidence that her discharge was motivated by something other than her work performance. However, the complainant's work responsibilities included not only managing the program aspects of the FRC but also being a cooperative member of the PDC team and working effectively with her supervisor, which the record shows she failed to do.

The complainant also contends that the fact that Phalen requested more information from her in regard to her flex time hours than other employees demonstrates pretext. First of all, the record shows that these requests were justified because the complainant's schedule, due to evening and Saturday programming, was more complex than that of other employees. In addition, most of these other employees were older than the complainant and at least two suffered from serious health conditions. Obviously, any difference in treatment would be attributable to something other than age or health.

The commission also notes that, of its nine employees, respondent successfully employed, and Phalen apparently successfully supervised, five who were older than the complainant. The record shows that Phalen had positive things to say about the work performance of these five employees. Barb Inda, who was older than complainant, testified that Phalen treated her fairly well and she did not feel that Phalen discriminated against her because of her age.

It should also be noted that Judy Woltmann, one of the complainant's witnesses and a friend of hers, testified that Phalen played favorites with her subordinate staff. Woltmann named as these favorites Molly Stout and Marilyn Seidl-Kramer, both of whom are older than the complainant.

The evidence of record does not support a conclusion that Phalen was motivated by the complainant's age when she made the decision to discharge her.

Disability discrimination

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).

It is not enough to state a diagnosis or to list symptoms. The complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for her or limited her capacity to work. Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000). As a result, the fact that the complainant's treating physician rendered a diagnosis that she suffered from migraine headaches would be insufficient alone to establish the existence of a disability. See, Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005) (diagnosis of diabetes alone insufficient to establish existence of disability).

The complainant offers as the basis for her contention that she qualifies as an individual with a disability the fact that she experiences migraine headaches each day and, when they don't respond to either over-the-counter or prescription medications, she is unable to function.

However, the complainant's medical evidence shows that, at or near the time period relevant here, she was experiencing severe migraine headaches two to three times each week, the prescription medications she took to control them were effective 90-95% of the time, and she suffered most of these headaches on the weekends. This evidence establishes that, at most, the complainant would be unable to function due to the ineffectiveness of her prescription medications ten days out of the year. The evidence of record further shows that, when this occurred, the complainant would routinely visit the clinic to get a shot of Imetrix which would usually resolve her headache within ten minutes.

This evidence does not establish the type of substantial limitation on life's normal functions or on a major life activity contemplated by the WFEA.

In addition, only a few instances of absence/tardiness were attributed in the record to the complainant's claimed disability. Even Woltmann, complainant's friend and witness, testified that complainant did not miss a lot of work due to migraines. These occasional absences and incidents of tardiness would not be sufficient alone to support a conclusion that the complainant's migraine headaches imposed a substantial limitation on her capacity to work. See, Gramza v. Kwik Trip, Inc., ERD Case No. CR200004205 (LIRC Feb. 20, 2003).

The evidence of record is insufficient to establish that the complainant's claimed disability made achievement unusually difficult or limited her capacity to work within the meaning of Wis. Stat. § 111.32(8).

The complainant argues in her petition that ALJ Olstad's finding that the complainant suffers from chronic migraine headaches which, on occasion, are so severe that she is unable to work, is necessarily incompatible with his conclusion that the complainant does not qualify as an individual with a disability within the meaning of the WFEA. However, not every impairment is a disability, and it is the complainant's burden, which she has not sustained here, to prove that her impairment satisfies the stated requirements of Wis. Stat. § 111.32(8).

Finally in this regard, the complainant argues that the record supports a conclusion that the respondent perceived her to be disabled. However, the relative infrequency of the absences/tardiness attributed to the complainant's migraine headaches would tend to militate against such a conclusion. Moreover, the fact that respondent was aware that the complainant was seeking medical treatment and taking prescription medications does not establish that respondent necessarily or reasonably would have perceived complainant to be disabled. Medical treatment is sought, and medications prescribed, for conditions which are disabling as well as for conditions which are not. See, e.g., Erickson, supra.; Moller, supra.; Lester v. Compass Group USA, ERD Case No. CR200203879 (LIRC March 22, 2005). In addition, the fact that the complainant never presented any medical restrictions to the respondent would also support a conclusion that she would not have been perceived to be disabled. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).

The complainant has failed to sustain her burden to prove that she qualifies as an individual with a disability within the meaning of Wis. Stat. § 111.32(8).

However, even if she had sustained this burden, the complainant failed to show that she was discriminated against on this basis.

The pretext analysis would generally parallel that for the age discrimination issue set forth above except as to those elements which are age-specific.

In addition, it should be noted that respondent successfully employed two other employees who suffered from serious health conditions. One of these (Inda) testified that Phalen treated her fairly well, and the other (Stout) was one of the individuals Woltmann testified was a favorite of Phalen's.

The complainant also argues in this regard that the fact that she was discharged, at least in part, because of her attendance record, and the impact it had on FRC coverage, shows that she was discriminated against based on disability. However, first of all, the record does not show that the complainant's absences/tardiness attributable to her migraine headaches were the only or even the primary reason for the lack of FRC coverage discussed by the PDC board. In fact, the two documented FRC closures immediately preceding the complainant's discharge resulted from her attendance at training in another community and from the fact that she left work to provide transportation for her daughter. Although the complainant called in sick on February 26, 2002, the record does not show that this was the result of a migraine headache or that the FRC was closed that day as a result of the complainant's absence. In addition, the record does not show that the complainant's attendance record played any significant part in the decision to discharge her. Although one of the board members testified that this was her understanding, the testimony of other board members and Phalen credibly establish that this was not the case. It should also be noted that, although the record contains testimony that the FRC was closed more frequently under the complainant's successor than when complainant was the FRC manager, the record does not show that this occurred during Phalen's tenure as PDC director, or that the PDC board or the PDC director at the time considered it acceptable.

Finally in this regard, the complainant has not alleged that any of the board members participating in the discharge decision were motivated by a discriminatory animus, and, in fact, the record shows that board member Lippert, who supported the discharge decision, was not even aware that the complainant suffered from migraine headaches.

Race/Ancestry discrimination

As discussed above, in order to establish a prima facie case of discrimination, it must be shown that the alleged discriminator had reason to be aware that the complainant was a member of the protected group. Here, even though the complainant testified that her great-grandmother was a member of the Cherokee tribe, i.e., that the complainant is one-eighth Native American, Phalen credibly testified that she was not aware of this at the time she made the discharge decision. Simply because the complainant and Phalen had discussions about Native American culture and customs would not show that Phalen had reason to be aware of complainant's Native American ancestry.

If the complainant had succeeded in establishing a prima facie case of race/ancestry discrimination, the burden would then shift to the respondent to articulate a legitimate, non-discriminatory reason for the discharge decision. The respondent satisfied this burden by explaining that, after receiving a written warning, the complainant failed to work cooperatively with her supervisor.

The burden would then shift to the complainant to demonstrate pretext.

The pretext analysis would generally parallel that for the age discrimination issue set forth above except as to those elements which are age-specific.

In addition, it should be noted that the record shows not that Phalen held any discriminatory animus toward Native Americans but instead that she had devoted much of her career to working with them, and, in fact, had a deep appreciation and respect for their culture.

The complainant failed to sustain her burden to prove race/ancestry discrimination. 
 

Direct evidence

In addition to the indirect evidence of discrimination analyzed above, the complainant also offered what she has characterized as direct evidence of discrimination.

The commission agrees with the ALJ, however, that this evidence is generally not credible. For example, the complainant testified that Phalen stated, "At least the other Native Americans I worked with had college degrees," or words to that effect. However, Phalen would not have made this statement because most of the Native Americans she had worked with in the past did not have college degrees. In addition, it would have been unlikely that Phalen would have made the comments attributed to her linking enthusiasm with youth since the employee she felt exhibited the most enthusiasm was in her 50's at the time. Moreover, although the complainant claims that Phalen, on two occasions, called her "an older woman without a formal education," the record shows that Phalen did not know the complainant's age and actually perceived her to be youthful, and that the complainant was one of the younger employees at the PDC. Finally, the ALJ, who had the opportunity to observe the witnesses, based his credibility determinations in this regard at least in part on demeanor impressions he describes in his decision. These stated impressions provide further support for affirming his credibility findings.  
 

ALJ rulings

The complainant argues that ALJ Olstad erroneously excluded certain testimony offered for rebuttal purposes. However, the complainant has failed to show that this proffered testimony, e.g., the testimony of the complainant as to the assignment of other duties, the testimony of Woltmann as to the reason employees may not have felt comfortable bringing concerns to the attention of board members, constituted proper rebuttal evidence. The complainant fails to persuasively explain, and it is not apparent, what evidence of record this proffered testimony was intended to rebut, why she could not have anticipated prior to hearing that respondent would offer this evidence, and what importance the proffered testimony would have for her case. See, Vaisman v. Aldridge, Inc., ERD Case No. 8751142 (LIRC Oct. 21, 1991)(rebuttal is not appropriate unless the complainant discovers during the respondent's presentation of its case in chief a piece of evidence which it could not have anticipated prior to hearing and which would have an important bearing on its case). In her argument in this regard, the complainant references not only her request to provide rebuttal testimony from the complainant and Woltmann but also from Dawn Pooler. However, the record does not show that the complainant ever requested that Pooler be allowed to offer rebuttal testimony.

The complainant also contends that ALJ Olstad, as set forth on page 347 of the hearing transcript, erred in his ruling on an objection to certain testimony.

Beginning on page 347, Phalen first testifies on cross-examination that she followed the employee handbook with respect to the termination of the complainant. She was then asked:

And yet Ms. Wucherpfennig did not receive, for example, three written warnings prior to termination, isn't that a true statement?

Counsel for respondent objected based on relevance. ALJ Olstad properly indicated that respondent's compliance with the provisions of its employee handbook would be relevant to the question of pretext, but noted that the handbook speaks for itself, implying, as a result, that it would not be necessary for the witness to read its provisions into the record. Phalen then answers the above question in the affirmative on page 348. Not only was ALJ Olstad's ruling correct, but the complainant's question was answered. It is not clear what error the complainant feels was committed or how she believes ALJ Olstad's ruling was unfavorable to her.

cc:
Attorney Brian G. Formella
Attorney Cari L. Westerhof

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