MARY JO KUBIAK, Complainant

CHILD AND FAMILY CONSULTANTS OF GREEN BAY, 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:

In FINDING OF FACT number 7, the last sentence is deleted and the following sentence substituted therefor:

"Mr. Horn discussed getting Kubiak a stool for the short term and within a month or so purchased additional shelving and lowered the existing shelves."

In FINDING OF FACT number 17, in the first line the word "has" is deleted and the word "as" is substituted therefor.

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

Dated and mailed January 19, 2007
kubiama . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Mary Kubiak appeals from the ALJ's dismissal of her complaint allegations that the respondent violated the Wisconsin Fair Employment Act by discriminating against her on the basis of disability with respect to her terms and conditions of employment and termination of employment, by refusing to accommodate such disability, and by terminating her employment in retaliation for opposing a discriminatory practice under the Act.

In late 2003 and early 2004, Kubiak was receiving services, including job training and placement, from the Wisconsin Department of Vocational Rehabilitation (DVR) and N.E.W. Curative Rehabilitation, Inc. (NCR). In January 2004, the respondent placed a job order with the DVR for a part-time basic clerical position. The job order listed the duties as including photocopying, opening mail and putting correspondence and other documents in correct order into charts. The job order listed the hours of the position as "10 hour[s]/wk four days/wk (about 2-3 hrs/day)." DVR counselor Donald Lodzinski forwarded the job order to Michael Clegg, a "disability employment specialist" with NCR. Clegg discussed the position with Kubiak and she applied for the position. In late January the respondent hired Kubiak. Kubiak began work with the respondent on February 3, 2004. On July 2, 2004, the respondent terminated Kubiak's employment.

The ALJ's decision holds that Kubiak offered no competent evidence to show that she has a disability or that the respondent perceived her as having a disability, that if she had a disability the respondent was not aware of it, that if she needed accommodation the respondent was not aware of it, that the respondent terminated Kubiak's employment for writing a letter dated June 30, 2004, expressing her unhappiness with her job and that Kubiak had not opposed a discriminatory practice within the meaning of the Act.

Kubiak takes issue with several findings which underlie the ALJ's decision. For instance, Kubiak asserts that contrary to the ALJ's paragraph five finding she discussed her fibromyalgia and not being able to reach overhead during her interview with Kennan Horn (the respondent's president and a shareholder) and Jennifer Harvey (the respondent's business/office manager who worked two days a week at the time relevant herein). She further asserts as evidence that her having fibromyalgia had been discussed, that Cheryl Rotherham (a shareholder) asked her who her doctor was and "what I was taking for the fibromyalgia that got it under control to the point that I could work..." Kubiak also asks why the respondent had her sign a Work Opportunity Tax Credit document if the respondent knew nothing about her disabilities. While the ALJ finds that Kubiak requested an adjustable chair, Kubiak disputes the paragraph eight finding that she told Horn the chair was fine after he provided her with two cushions for the chair. Kubiak asserts that the paragraph 11 finding that except for the lowered shelves she was able to complete all her duties without accommodation or assistance is false as she had to ask Lisa Vaughn, a co-worker, for assistance at times. Kubiak further asserts that, contrary to the ALJ's paragraph 12 finding, she never increased her hours on her own, that Horn would ask if she could come in because they had extra work for her to do and that her hours increased as her work increased. Referencing the paragraph 13 finding that when Harvey became aware of the number of hours Kubiak was working she told Kubiak to reduce her hours, Kubiak asserts that it was she "who informed her (Harvey) that I could not work more than 15 hours a week and sometimes I could work 20 but not very often." Referencing the paragraph 15 finding that the shareholders decided that since Kubiak was so unhappy with her job she should be terminated, Kubiak asserts that she "never said I was unhappy with my job and if I was why did they offer me my job back at 5 hours a day on Thursday and Friday." With respect to the paragraph 16 finding that neither DVR nor NCR provided information about her medical history to the respondent, Kubiak asks why Horn mentioned that he was told of her limitations and disabilities.

Kubiak's assertions merely indicate a disagreement with the ALJ's assessment of witness credibility. Testimony by the respondent's witnesses contradicts the assertions made by Kubiak. For instance, Horn and Harvey dispute Kubiak's assertions about what was said at Kubiak's interview. Horn denied claiming he knew about Kubiak's disability. Horn testified that Kubiak never discussed any medical condition. Harvey testified that the job duties were discussed and that Kubiak did not indicate any restrictions regarding the job duties. Kubiak's reference to signing a Work Opportunity Tax Credit document (marked at the hearing as Exhibit C-18 but not received into evidence) fails to show that the respondent knew of her disabilities since this form lists no disability, work restriction or accommodation relating to Kubiak.

As indicated by the ALJ, however, even if the respondent knew about Kubiak's "disabilitities", Kubiak offered no competent evidence to show that she has a disability within the meaning of the Wisconsin Fair Employment Act. Kubiak asserted that she has various limitations in her ability to work but she did not have a physician testify about her alleged limitations, nor did she present any medical documentation, relevant to the time of her employment with the respondent, to substantiate her alleged limitations. Absent competent medical evidence of the nature, extent, or permanency of her condition, Kubiak cannot prove that she has a disability. Erickson v. LIRC & Quad Graphics, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398 (2005); Wollenberg v. Webex, Inc. (LIRC, 11/08/91).

The evidence also fails to show that the respondent perceived Kubiak as having a disability. Horn indicated that it was his understanding that individuals who worked with the DVR did not necessarily have to have a disability, but may have an illness. Kubiak herself never provided the respondent with any medical information or work restrictions. Lodzinski and Clegg both testified that at no time had they talked to anyone at the respondent regarding Kubiak's medical condition, nor had they provided the respondent with any documents regarding her medical condition. Furthermore, it is hard to fathom how the respondent could have perceived Kubiak as having a disability in view of Kubiak's claim that the respondent kept increasing her hours of work and adding duties to her job.

Kubiak further asserts, however, that because of her condition she could not complete all of her duties on her own or work all of the increased hours. First of all, Harvey testified that at no time did she ask Kubiak to work all the hours she was working and that at no point did Kubiak ever indicate she could not perform any of her job duties. Moreover, the testimony was undisputed that Kubiak never provided the respondent with any documentation regarding any medical condition, work restrictions or need for accommodations for work. Indeed, the hire report Clegg prepared on February 4, 2004, and sent to DVR after the respondent hired Kubiak failed to list any needed accommodations. Clegg testified that if there were accommodations needed or provided it would have appeared in the section of this report titled "ACCOMMODATION/REHABILITATION ENGINEERING NEEDS PROVIDED:". Clegg testified that the absence of anything written here indicates he was not consulted by either party (employer or client) in terms of accommodation. And, as noted by the ALJ, as late as May 3, 2004, Kubiak had reported to Lodzinski that she was working four and one-half hours per day and the job was going very well.

The respondent terminated Kubiak's employment two days after she wrote a letter dated June 30, 2004, criticizing the work environment at the respondent. In her letter Kubiak characterized the respondent as "the biggest dysfunctional so-called family that I have seen." As found by the ALJ, Kubiak's letter for most part criticized the respondent for what she felt was the shabby treatment it accorded co-worker Lisa Vaughn, but did also complain about the stress she was feeling and her inability to complete her duties in the hours allotted. The evidence, however, fails to show that the respondent terminated Kubiak's employment because of a disability. The evidence shows that the respondent was not only surprised by the complaints in Kubiak's letter but felt "wounded" and angry about its contents. The evidence shows that respondent decided to terminate Kubiak's employment because it believed Kubiak was very unhappy working for the respondent and that it was best that they part ways.

Kubiak asserts that she "never said" she was unhappy with her job. However, the June 30 letter she wrote to the respondent clearly conveys her unhappiness with her job. Kubiak also asks why she was offered her job back at 5 hours a day on Thursdays and Fridays. At the hearing Kubiak questioned Harvey as to why she was presented with this offer "after the NLRB letter", and on appeal she asserts that the NLRB "found CFC interfered with, restrained or coerced employees in the exercise of their rights guaranteed in Section 7 of the Act by discharging Mary Kubiak due to her protected concerted activities." Kubiak attached a copy of a check the respondent made payable to her as backpay that was enclosed with a letter from the NLRB. (The letter from the NLRB states that the check represented a settlement of the matter.) As noted by the respondent, if Kubiak is arguing that the respondent must be guilty of discrimination because it paid her back wages her argument fails for two reasons: 1) There was no judgment on the merits of her NLRB claim, as the claim was settled and the case ended; and 2) the NLRB claim dealt with Section 7 rights and protected concerted activity under the National Labor Relations Act, not issues of disability discrimination or accommodation under the Wisconsin Fair Employment Act. Also, Harvey testified that the reason Kubiak was offered a job back after the NLRB letter was because at that point she (Harvey) was hoping they could put their differences aside and the respondent could just run a business. Harvey testified, "I felt hopefully you could perform a job function. That's why your office hours were scheduled on the days I was there."

Finally, due to the absence any mention of alleged discriminatory behavior by the respondent in Kubiak's June 30 letter, there is no basis for her claim that her termination was in retaliation to a discriminatory practice under the Act.

cc: Attorney Patricia Lauten

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