The Wisconsin Equal Rights (ER) Decision Digest -- Sections 640-659
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640
Probable Cause641 Definition of probable cause
A complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred. The conclusion of the circuit court in the case of Gentilli v. LIRC (Dane Co. Cir. Ct., 03/30/90) that at the probable cause stage the most a Complainant should be required to do is set forth that which would be required to make a prima facie case, does not establish binding precedent or authority. Braunschweig v. SSG Corp. (LIRC 08/31/06).
The concept of probable cause focuses on probabilities rather than possibilities, and it lies somewhere between preponderance of the evidence and suspicion. The concept of the prima facie case, however, focuses on inference and presumption, which are more closely akin to possibility and suspicion than to probability. As a result, the Complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged. In this case, although the Complainant established a prima facie case of discrimination, he did not show that the legitimate, non-discriminatory reason offered by the Respondent for his discharge was probably a pretext for age discrimination. Stichmann v. Valley Health Care Center (LIRC, 06/14/05).
It was appropriate to assess the credibility of the Respondent's director of human resources at a probable cause hearing where the issue was whether his awareness of the Complainant's medical condition was a determining factor in his decision to terminate the Complainant. Roncaglione v. Peterson Builders (LIRC, 08/11/93).
In Boldt v. LIRC, 173 Wis. 2d 469, 469 N.W.2d 676 (Ct. App. 1992), the Court of Appeals explained that establishing probable cause is not a preponderance of the evidence test; however, the Court suggested that the Complainant's burden was to prove that discrimination "probably" occurred. Roncaglione v. Peterson Builders (LIRC, 08/11/93).
The concept set out in sec. Ind 88.01(8), Wis. Adm. Code, focuses on probabilities, not possibilities. The rule adopts the viewpoint of a prudent, not a speculative, imaginative or partisan person. As such, it contemplates ordinary, everyday concepts of cause and effect upon which reasonable persons act. It is LIRC's duty to consider the facts of each case and determine whether they meet this fluid concept. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).
Probable cause cases are to be analyzed under the McDonnell-Douglas framework, but require a quantum of proof that is less than that of a case on the merits. Frierson v. Ashea Indus. Systems (LIRC, 04/06/90).
The probable cause standard is primarily a screening mechanism. Gentilli v. LIRC (Badger Coaches) (Dane Co. Cir. Ct., 03/30/90).
Probable cause is somewhere between preponderance and suspicion. Hintz v. Flambeau Medical Center (LIRC, 08/09/89).
At a probable cause hearing, Complainants are permitted to present their case before a quasi-judicial officer and receive a more exacting scrutiny of the evidence than would otherwise be available in the normal investigative process. Lienhardt v. Pacon (DILHR, 01/21/76).
Concepts such as "burden of proof" and "probable cause" are often elusive and incapable of being precisely defined. Street v. DeLaval Separator Co. (DILHR, 06/27/75).
The purpose of a no probable cause hearing is to afford the complaining party an opportunity to present evidence sufficient to demonstrate probable cause to believe that discrimination has occurred, and it is not an opportunity to review the initial determination or the investigative technique of the field representative. Street v. DeLaval Separator Co. (DILHR, 06/27/75).
Probable cause does not mean proof of discrimination to a reasonable certainty, but proof within a reasonable probability that a full hearing will establish discrimination to a reasonable certainty. Marshall v. Indus. Comm. (Dane Co. Cir. Ct., 02/23/67).
642 Complainant's burden of proof
The Complainant wondered why one decision in her case found probable cause, while a second decision found no discrimination on the merits. The burden of proof at the probable cause hearing was lower than at the hearing on the merits, the evidence introduced at the two hearings was not identical, and two different administrative law judges were involved in making the decisions. Robbins v. Extendicare Health Services Inc. (LIRC, 2/13/14).
Generally a Complainant must prove more than a prima facie case in order to establish probable cause. However, if the Respondent chooses not to present any evidence of a legitimate, nondiscriminatory reason for its actions to rebut the Complainant's prima facie case, a finding of probable cause will result. Vaserman v. Lakeshore Medical Clinic Limited (LIRC, 2/28/14).
A Complainant is required to establish more than a prima facie case in order to sustain the burden of showing probable cause to believe that discrimination has occurred. Sec. 218.02(8), Wis. Admin. Code, provides that probable cause means that there is "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the Act probably has been or is being committed." The Complainant has the burden to show this reasonable ground for belief that discrimination occurred. Even if some evidence of discrimination exists in a case, it might still be concluded that (based upon all of the evidence produced at the hearing) it was not probable that discrimination occurred. Barnes v. Miller Brewing Co. (LIRC, 05/14/12).
Although the standard of proof at a probable cause hearing is low, the burden of showing probable cause rests on the Complainant. Even if some evidence of discrimination exists in a case, the trier of fact might still conclude that, based upon all the evidence produced at the hearing, it was not probable that discrimination occurred. The probable cause concept focuses on 'probabilities' and not 'possibilities.' Oler v. TTM Technologies (LIRC, 06/23/11).
A Complainant is generally required to do more than establish a prima facie case in order to sustain his or her burden of establishing probable cause to believe that unlawful discrimination has occurred. However, absent the Respondent's presentation of evidence of a legitimate, non-discriminatory reason for the Complainant's discharge, or the presentation of any evidence to rebut the Complainant's testimony, this is not the case. A finding of probable cause results where the Respondent has offered no evidence at the hearing to rebut the Complainant's prima facie case. Nevels-Ealy v. County of Milwaukee (LIRC, 03/14/08).
The Complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged. It is incorrect that in a probable cause proceeding disputes as to facts should be resolved in favor of the Complainant. On the contrary, factual disputes are to be resolved by assessing and weighing the evidence offered by the parties at hearing. Ford v. Lynn’s Hallmark (LIRC, 06/27/05).
The Complainant's burden is to prove that probable cause exists to believe that discrimination occurred as alleged in the complaint. The Complainant's argument that he should prevail if any credible evidence exists to support his claim is rejected. Josellis v. Pace Inds. (LIRC, 08/31/04).
Though the standard of proof at a probable cause hearing is low, the burden of showing probable cause rests with the Complainant. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).
The probable cause standard should be less stringent than, or, at the very most equivalent to, that required to set forth a prima facie case of employment discrimination. At the probable cause stage, the very most that a Complainant should be required to do is to set forth that which would be required to make out a prima facie case. Gentilli v. LIRC (Dane Co. Cir. Ct. 03/30/90).
Although the Complainant claimed she was replaced by a younger employe, there was no basis for her testimony. Complainant showed no foundation to establish that she was in a position to know who replaced her. Therefore, a finding of no probable cause was appropriate. Hintz v. Flambeau Medical Center (LIRC, 08/09/89).
The mere articulation of a bare prima facie case is generally not adequate to establish probable cause except in cases in which the employer has offered no evidence to rebut that prima facie case. Saltarikos v. Charter Wire Corp. (LIRC, 07/31/89).
In determining whether there is probable cause, a less rigorous standard of proof is involved. However, the McDonnell-Douglas framework is still a useful analytical tool. Larson v. DILHR (Wis. Personnel Comm., 01/22/89).
Sec. 227.08, Stats., implies that the Commission may consider only evidence having reasonable probative value when determining whether there is probable cause to believe a violation of the Fair Employment Act has occurred. In this case, the Complainant could not remember whether she had complained about the alleged sexual harassment. Complainant submitted her notes at the hearing, but the notes did not support a finding that she had informed the Respondent about the alleged sexual harassment. Accordingly, the Commission concluded that a reasonable person could not believe that Complainant had informed the Respondent about the alleged sexual harassment. Schoenhofen v. Alcoholism & Drug Council of Waupaca County (LIRC, 09/21/87).
The Complainant has the burden to show probable cause to believe discrimination occurred as alleged. This is a lesser burden of proof than the burden applicable to Complainants in a hearing on the merits. Under the Wisconsin Fair Employment Act, the initial burden of proof is on the Complainant to show a prima facie case of discrimination. If Complainant meets this burden, the Respondent then has the burden of articulating a non- discriminatory reason for the actions taken which the Complainant may, in turn, attempt to show was a pretext for discrimination. McDonnell- Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 5 FEP Cases 965 (1973) and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 25 FEP Cases 113 (1981). A similar analysis is appropriate at a probable cause hearing; however, the standard by which the evidence is measured is not as demanding as that used at a hearing on the merits. Fluekiger v. Mathy Constr. Co. (LIRC, 05/14/87).
The Complainant's burden of proof is less in a probable cause proceeding than it would be at a hearing on the merits. In a probable cause proceeding the Complainant's burden is to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC, 02/18/87).
The Personnel Commission rejects Complainant's argument that the evidentiary threshold necessary to establish probable cause is quite minimal, and that any and all facts giving rise to competing inferences should be resolved in the Complainant's favor. The Commission notes that this is similar to the "substantial evidence" standard used by courts in judicial review, and if applied as the standard for determining probable cause would not meet the clear purpose of the legislature in establishing a probable cause standard, which was to provide a screening device to sort out cases lacking a certain threshold degree of substance. However, the Commission also rejects the Respondent's approach that a preponderance of the evidence standard should be applied. The Commission concludes that probable cause requires a degree of proof that is less demanding than the preponderance standard applicable on the merits, but more demanding than the standard urged by the Complainant. The Commission agrees with the characterization of probable cause "as being somewhere between preponderance and suspicion." Winters v. DOT (Wis. Personnel Comm., 09/04/86).
In a probable cause proceeding the evidentiary standard applied is not as rigorous as that which is required at a hearing on the merits. Nevertheless, it is useful to use the McDonnell-Douglas format in analyzing the record. Mitchell v. UW-Milwaukee (Wis. Personnel Comm., 04/04/86).
The Commission is not limited at the probable cause hearing to merely examining whether the petitioner has presented evidence, which, if believed, would be sufficient to support his claim. Rather, the test is whether the Commission believes, upon its examination of the evidence and its review of the credibility of the witnesses, that discrimination has probably occurred. McLester v. Personnel Comm., (Ct. App., Dist. III, unpublished decision, 03/12/85).
The question in a probable cause proceeding is whether there is any credible evidence in the record sufficient to support a claim that the Complainant was discriminated against. If there is such evidence, even if it is disputed or outweighed by contrary evidence, a finding of probable cause would have to be made. Christner v. LIRC (Dane Co. Cir. Ct. 06/30/78).
At a hearing on the issue of probable cause, a Complainant is not held to the same standard which applies to a full hearing on the merits. Lienhardt v. Pacon Corp. (LIRC, 01/21/76).
A hearsay statement alone is insufficient competent evidence to support a probable cause finding that discrimination has been committed. Hunt v. City of Madison (DILHR, 02/11/75).
643 Credibility considerations
It is appropriate for an Administrative Law Judge to make credibility assessments at a hearing on the issue of probable cause. Oler v. TTM Technologies (LIRC, 06/23/11).
The Labor and Industry Review Commission believes that it is required to make credibility determinations at probable cause hearings when issues of credibility exist. Sommerfeldt v. AT & T (LIRC, 10/27/93).
The Department is entitled to make credibility determinations at probable cause hearings. In this case, LIRC found the Complainant's testimony about seeking psychiatric help not to be credible and concluded that there was no probable cause to believe that he suffered from a handicapping mental illness. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).
The Personnel Commission is entitled to review the credibility of witnesses and the weight of the evidence in determining probable cause. The Personnel Commission is not limited to merely examining whether the Complainant has presented evidence which, if believed, would be sufficient to support his claim. Cozzens-Ellis v. UW-Madison (Wis. Personnel Comm., 02/26/91).
The Complainant's testimony was contradicted by one of her own exhibits. Further, her testimony was not supported by one of her own witnesses. Complainant's testimony was also inconsistent on some points. Considering all of the evidence, the Commission concluded that there was no probable cause to believe the Complainant had been discriminated against. Albertson v. Methodist-Meriter Hospital (LIRC, 09/20/90).
In proceedings limited to the issue of probable cause, the decisionmaker is not to weigh the testimony by balancing the credibility of witnesses, but rather merely determine whether Complainant's evidence is believable. (Marshall v. Industrial Commission, Dane Co. Cir. Ct., 1 EPD par. 9772 p. 709). The fact that the Administrative Law Judge appears to have engaged in weighing the testimony by balancing the credibility of witnesses leads the Commission to conclude that the Administrative Law Judge decided this case on the merits by application of the "preponderance of the evidence" standard rather than deciding it by application of the lesser "probable cause" standard. Joseph v. Central Parking (LIRC, 08/20/90).
The Complainant was not a credible witness because he testified dishonestly with respect to a document which was received into the record. The document was a collection of daily production sheets on which the employe required data concerning the jobs he had run. The Complainant offered this packet of production sheets as evidence supporting his claim of harassment because of national origin, testifying repeatedly that notations he made on those sheets were contemporaneously made on the same day or at most within a few days of the incident. This testimony was rendered unbelievable by the substance of the notation on the production sheet for December 20, 1985, which concerned a meeting which indisputably took place in March of 1986. This established that the notations were clearly made long after the fact in order to bolster the Complainant's case. The Complainant's insistence that this notation was contemporaneously made, even in the face of this impossibility, left the Commission disinclined to credit him as a believable witness. Since his testimony, even standing by itself, could not be believed, it failed to establish to the burden required in a probable cause hearing, that the facts concerning his discharge were as alleged. Saltarikos v. Charter Wire Corp. (LIRC, 07/31/89).
The Commission found it unnecessary to address the question of how credibility issues should be resolved in hearings restricted to the issue of probable cause. Whether the Commission were to follow the test of Marshall v. Industrial Commission (Dane Co. Cir. Ct., 02/23/67), followed in Lienhardt v. Pacon (DILHR, 01/21/76), that the decisionmaker is not to weigh the testimony by balancing the credibility of witnesses but rather is to merely determine whether the Complainant's evidence is believable, or the view expressed in McLester v. Personnel Commission (Wisconsin Ct. App. Dist III, unpublished decision, 03/12/85) that it is appropriate to weigh the credibility of competing witnesses in a probable cause hearing, it would arrive at the same result in this case. Ward v. Programmed Cleaning, Inc. (LIRC, 07/26/89).
The Commission did not have to disregard the testimony of the Complainant's witness because the witness lives with the Complainant. In this case, any incentive which the witness might have to misrepresent her testimony in favor of the Complainant based upon their living arrangement was offset by her incentive not to misrepresent the facts based upon her continued employment with the Respondent and her resulting dependence on the Respondent for her livelihood. Herling v. Dealer's Office Equip. (LIRC, 02/18/87).
The Personnel Commission is entitled to review the credibility of witnesses and the weight of the evidence in determining probable cause. The Commission is not limited at the probable cause hearing to merely examining whether the petitioner has presented evidence which, if believed, would be sufficient to support his claim. Rather, the test is whether the Commission believes, upon its examination of the evidence and its view of the credibility of the witnesses, that discrimination has probably occurred. McLester v. Personnel Comm. (Ct. App., District III, unpublished decision, 03/12/85).
In determining whether there is probable cause, DILHR is not to weigh the credibility of the complaining party, but to determine if the complaining party's evidence is believable. Lienhardt v. Pacon (DILHR, 01/21/76).
The Commission is not to weigh the testimony by balancing the credibility of the witnesses, but rather merely determine whether the Complainant's evidence is believable. Marshall v. Industrial Comm. of Wisconsin (Dane Co. Cir. Ct., 02/23/67).
644 Cases
Considering the totality of the evidence presented, the Complainant did not show probable cause to believe that sex or race was a motivating factor in assignment of work. The Complainant failed to show that employees who were given the assignment that she wanted were similarly situated to her. Evidence also showed that someone within the Complainant's protected category was treated favorably with respect to her assignment. While not conclusive, an employer's favorable treatment of other members of a protected class can show lack of discriminatory intent on the part of the employer. Liddell v. Kleen Test Products, Inc. (LIRC, 04/11/14).
The standard of proof at a probable cause hearing has been described as "low." Where an employer has become aware that the Complainant's deafness is causing problems, and subsequently terminates the Complainant based on a claim that there is not enough work, while seeking other employes, there is reasonable ground for belief that discrimination has occurred. Buska v. Central Bldg. Maintenance (LIRC, 09/28/95).
The Complainant's failure to provide medical certification from a health care provider explaining the extent to which he was unable to perform his employment duties, when requested by the employer, establishes that there is no probable cause to believe that the employer violated the Wisconsin Family and Medical Leave Act by terminating the employe following his absence from work without medical documentation that he was unable to perform his duties. Randolph v. DILHR (Ct. App., Dist. II, unpublished decision, 05/13/92).
Probable cause exists to believe discrimination occurred where an employer failed to establish that the requested accommodation for a physical handicap was unreasonable or posed a hardship when the employer's testimony was based on mere speculation that creating a part-time job for a former full-time employe would increase payroll costs and would cause inefficiencies as the result of job sharing. Gartner v. Hilldale, Inc. (LIRC, 05/12/92).
The mere fact that the duties that the Complainant performed remained after his discharge and that the remaining employes were younger than the Complainant does not suffice to establish probable cause to believe that the Respondent discharged the Complainant because of age. Gentilli v. Badger Coaches (LIRC, 03/21/89), aff'd., Dane Co. Cir. Ct., 03/30/90.
There was no probable cause to believe that the Respondent discriminated against the Complainant by terminating his employment because of sex where the Complainant had acted in a fashion that led female employes to believe that he was exposing himself to them and where female employes had reported that he made obscene phone calls to them. Hammer v. G.E. Medical Systems (LIRC, 08/29/89).
There was probable cause to believe that the Respondent violated the Wisconsin Fair Employment Act by terminating the employment of the Complainant because of handicap where the Complainant established that she was handicapped, the Complainant was not inherently incredible when she testified, and where it could be inferred that the Respondent's claim was pretextual. Johnson v. Simpson Electric (LIRC, 04/12/89).
There was no probable cause to believe that the termination of the Complainant's employment was because of age where the Respondent, due to poor financial conditions, laid off several employes based on seniority and employment status. Schneider v. Northwestern Nat'l. Ins. of Milwaukee (LIRC, 01/26/89).
In a hearing on the issue of probable cause, Respondent failed to establish that Complainant's handicap was reasonably related to the Complainant's ability to undertake the duties of a new position where there was little evidence supporting a doctor's establishment of lifting, bending, stooping and twisting restrictions; where the doctor's conclusion was based on Complainant's notations of his medical history and an examination limited to five minutes which did not include questions regarding the meaning of those notations; and where the doctor was not shown to be aware of how the duties of the Complainant's current position compared to the duties of the position the Complainant desires. Lauri v. DHSS (Wis. Personnel Comm., 11/03/88).
Where the Respondent was informed by a physician's assistant that the Complainant was suffering from an inflammatory arthritic condition, and the Respondent thus was aware of the Complainant's handicap, and where the Respondent thereafter terminated the Complainant for failing to comply with a call in requirement without first providing him a written warning, as it was its practice to do, the evidence was adequate to raise an inference of discrimination sufficient to justify a finding of probable cause. Herling v. Dealers Office Equip. (LIRC, 02/18/87).
The facts that a terminated Complainant was in the protected age group and that her replacement was not are not sufficient, standing alone, to support a finding of probable cause that age discrimination occurred. Sanrope v. Hillsboro Public Schools (LIRC, 08/22/86).
Complainant's testimony in an age discrimination case that her immediate supervisor told her that she should take early retirement was incredible because the Complainant had failed to make this allegation any time prior to the probable cause hearing. Further, even if the remark was made, Complainant's own testimony indicates that the context in which the remark was allegedly made indicated that the remark was not an indication of discrimination. Thus, Complainant presented no credible evidence sufficient to support a finding of probable cause to believe that her age was a determining factor in Respondent's decision to discharge her. Sanrope v. Hillsboro Pubic Schools (LIRC, 08/22/86).
Where the Complainant offered testimony sufficient to establish a prima facie case of age discrimination, and the Respondent offered no evidence at the hearing to rebut the prima facie case, a finding of probable cause resulted. Gunderson v. Bonded Spirits Corp. (LIRC, 07/17/86).
649 Miscellaneous
Generally a Complainant must prove more than a prima facie case in order to establish probable cause. However, if the Respondent chooses not to present any evidence of a legitimate, nondiscriminatory reason for its actions to rebut the Complainant's prima facie case, a finding of probable cause will result. Vaserman v. Lakeshore Medical Clinic Limited (LIRC, 2/28/14).
650 Proof, Standards and Burdens; Specific Issues
651 Proof of medical facts [ See also, sec. 123.6]
If an employee is discharged because of bad behavior which was caused by a disability, the discharge is, in legal effect, because of that disability. �Whether an individual's bad behavior is caused by a mental disorder from which the individual suffers, though, is a question of medical/scientific fact on which expert testimony is required. It cannot simply be presumed that every act of bad behavior engaged in by a person who has a mental disorder, is caused by that mental disorder. It may or may not have been; the question is to be resolved by weighing the expert evidence in the record on that question. Maeder v. UW-Madison, UW Police (LIRC, 06/28/13).
Although the Court of Appeals in Rutherford v. LIRC, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897, held that medical records could not be excluded from Chapter 227 administrative hearings simply because they were not certified, the Court did not deal directly with the issue of the probative value of documents created by a medical provider and received into the hearing record if they were not authenticated either through certification or through the testimony of the provider. Any medical opinion stated in such a document would constitute hearsay evidence. Savaglio v. LeBlanc Inc.. (LIRC, 01/30/09).
It was error for an Administrative Law Judge to exclude medical records solely on the basis that they lacked certification. However, in this case, even if the Administrative Law Judge had not excluded medical records because they lacked certification, the disputed records would not have been sufficient to warrant a conclusion that the Complainant had a disability within the meaning of the Wisconsin Fair Employment Act. The medical documents consisted of an X-ray report, a memo from the Complainant?s family practice doctor, an unsigned and difficult-to-read medical report, and general instructions about post-surgical care. These documents suggested that the Complainant was suffering from neck, shoulder and back pain. However, they did not indicate that the Complainant had been diagnosed with any permanent medical condition that would constitute a disability. Thoreen v. Fabco Equipment (LIRC, 11/25/09).
Where the existence of a disability is in dispute, the Complainant must present competent medical evidence establishing the nature, extent, and permanency of an impairment. The only medical evidence the Complainant presented in this case was uncertified memos and reports prepared with respect to his worker's compensation injuries. He provided no non-hearsay medical evidence showing what tests were performed and what diagnosis was reached. The Complainant contended that the expense of bringing a doctor to a discrimination hearing is burdensome to Complainants, who are often with limited means. The Complainant suggested that there should be a standard medical form which could be used for discrimination hearings. However, a Complainant can meet his burden of establishing a disability through presentation of certified medical documents or documents with 'other circumstantial guarantees of trustworthiness.' Tschida v. UW-River Falls (LIRC, 12/30/08).
An Administrative Law Judge improperly refused to admit or consider uncertified copies of medical records which the Complainant wished to introduce at hearing. Chapter 227, Stats., requires very relaxed rules of evidence in administrative proceedings. Further, there is no administrative rule which requires the submission of certified copies of medical records. In excluding the uncertified copies, the Administrative Law Judge made no analysis of the factors governing admissibility of evidence in these hearings, which are provided by statute. The Complainant should have been permitted to introduce her treating doctor’s opinion that she had a permanent disability, where that opinion was stated in his treatment records, even though the Complainant had not been able to get certified copies of the records. Rutherford v. LIRC & Wackenhut, 2008 WI App 66, 309 Wis. 2d 498, 752 N.W.2d 897.
In order to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act, the Complainant must present competent medical evidence to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. 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. As a result, the fact that the Complainant’s treating physician rendered a diagnosis that she suffered from migraine headaches, or suffered the symptoms of tendonitis, would be insufficient alone to establish the existence of a disability. There was no competent medical evidence in the record to establish that the Complainant’s tendonitis was permanent. The medical evidence with respect to migraine headaches indicated that the condition was permanent, but that it did not create any restrictions which would impede the Complainant’s ability to perform her assigned duties. Thus, the Complainant failed to sustain her burden to prove that she qualified as an individual with a disability. Fields v. UW Hospitals & Clinics Authority (LIRC, 02/12/07).
The medical evidence of record generally consisted of return-to-work slips, FMLA forms completed by the Complainant’s treating physicians, and a 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 were uncorroborated hearsay evidence. The documents were not certified, and had no other circumstantial guarantees of trustworthiness sufficient to qualify for application of the hearsay exception set forth in sec. 908.03(24), Stats. As a result, 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 from which she had not fully recovered and that she was diagnosed with diabetes was not sufficient, without more, to satisfy this burden. Moreover, even if competent medical evidence establishing the existence of a cognizable impairment were a part of the record, the evidence did 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. Seil v. Dairy Farmers of America (LIRC, 08/26/05)
The Complainant failed to show by competent medical evidence that she suffered from an actual impairment within the meaning of the Wisconsin Fair Employment Act. The records that the Complainant submitted at hearing were ostensibly prepared by physicians who did not testify at hearing. As a result, these documents were uncorroborated hearsay evidence. The documents were not certified, and they had no other circumstantial guarantees of trustworthiness sufficient to qualify for application of the hearsay exception set forth in sec. 908.03(24), Stats. There was, however, evidence that the Respondent perceived the Complainant as an individual with a disability. Wodack v. Evangelical Lutheran Good Samaritan Soc. (LIRC, 08/05/05)
To demonstrate that a disability exists under the Wisconsin Fair Employment Act, the Complainant must present competent evidence of a medical diagnosis regarding the alleged impairment. Erickson v. LIRC (Ct. App., Dist. II, unpublished decision, 08/03/05)
Although the Respondent did not dispute that the Complainant had been treated for a neck and back injury and for carpal tunnel syndrome, the Complainant was required to offer competent medical evidence as to the nature, extent, and permanence of these conditions in order to sustain his burden to prove that these conditions constituted impairments within the meaning of the Wisconsin Fair Employment Act. Cramer v. Woodman’s Food Mkt. (LIRC, 01/14/05).
The Complainant submitted sufficient competent evidence to warrant a conclusion that she suffers from carpal tunnel syndrome. She submitted a signed "Physician’s Statement of Disability," in which her attending physician certified that she was hospitalized with bilateral carpal tunnel syndrome. In addition, she submitted two different independent medical evaluations, both showing a diagnosis of carpal tunnel syndrome. These reports, while not certified, had sufficient circumstantial guarantees of trustworthiness so as to fall under the hearsay exception contained in Sec. 908.03(24), Wis. Stats. Jones v. United Stationers (LIRC, 01/25/01)
Even though the Complainant suffered from the disease of obsessive compulsive disorder (OCD), he was not an "expert" on OCD, since there is no indication in the record that he possessed scientific, technical or other specialized knowledge that would qualify him to give an expert opinion on whether certain behavior was caused by his OCD. Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633.
Expert testimony should be adduced concerning matters involving special knowledge, skill or experience on subjects which are not within the realm of the ordinary experience of mankind. Expert medical testimony was required to establish that the Complainant’s vociferous reaction to the announcement that another employee was being promoted to a position for which he had sought promotion was caused by his obsessive compulsive disorder (OCD). Without expert medical testimony, the Department would be speculating as to whether a causal link existed between the Complainant’s disability and the conduct which triggered his ultimate discharge. Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633.
No expert medical testimony was required to establish that the Complainant had a serious health condition within the meaning of the Wisconsin Family and Medical Leave Act where there were outward or overt manifestations of the fact that her condition interfered with her ability to perform her work duties. However, expert medical testimony was necessary to establish that her leave was medically necessary where her serious health condition did not manifest symptoms that lay people would recognize as necessitating a leave. Sieger v. Wisconsin Personnel Comm., 181 Wis. 2d 845, 512 N.W.2d 220 (Ct. App. 1994).
The Complainant failed to establish that she had a handicap where she never produced any expert medical evidence to establish that she had such a condition, or that the condition would satisfy the standard for an actual impairment. Two medical excuses were insufficient to establish an actual impairment since they merely referred to the Complainant's condition as an illness. The record was devoid of sufficient evidence to establish what condition the Complainant had, the nature of the condition, or the extent of the condition (i.e., whether it was temporary or permanent in nature). Plaski v. Blue Cross/Blue Shield United of Wis. (LIRC, 05/21/93).
Several letters to the employer from the Complainant's psychologist were not adequate to satisfy the employer's request that the employe provide certification from a health care provider explaining the extent to which the employe was unable to perform his or her employment duties under the Wisconsin Family and Medical Leave Act. The letters did not address specifically the employe's ability to perform employment duties and the general finding of a 50 percent disability from the Department of Veteran Affairs failed to specifically address the Complainant's ability to perform his employment duties. Therefore, the letters did not comply with the employer's request for medical certification. Randolph v. DILHR (Ct. App., Dist. II, unpublished decision, 05/13/92).
The mere fact that the employer has made its employment decision in reliance upon the opinion of a doctor does not protect the employer from a finding of discrimination. Where there is conflicting medical evidence, the trier of fact conclusively determines which view of the evidence it will accept. Leach v. Town of Pleasant Prairie Fire Dept. (LIRC, 04/23/91).
Although the Complainant testified that he had gone to a rehabilitation hospital for treatment and had been diagnosed as an alcoholic, the hearing examiner was entitled to give no weight to this testimony, since no expert testimony was received on the subject. Alcoholism is a disease, the diagnosis of which is matter of expert medical opinion proved by a physician and not a layman. Schaafs v. Schultz Sav O Stores (LIRC, 11/06/86).
Since alcoholism is a disease, its diagnosis is a matter of expert medical opinion by a physician and not by a layperson. Connecticut Gen. Life v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).
DILHR (LIRC) commissioners become virtual medical experts as a result of the volume of testimony that they hear and evaluate and they may use this expertise to accept or reject any or all such testimony. Bucyrus Erie v. DILHR (Parks) (Dane Co. Cir. Ct., 05/14/77), aff'd., 90 Wis. 2d 408, 280 N.W.2d 142 (1979).
Merely because a physician states an opinion to a reasonable degree of probability or certainty does not require an administrative agency to accept such an opinion. DILHR may reject such statements made by two doctors testifying for an employer where five doctors thought it would be safe for an epileptic employe to return to work and where the employe possessed an unrestricted driver's license. Chicago & N.W. R.R. v. DILHR (Pritzl) (Dane Co. Cir. Ct., 06/15/78).
It is a long-standing rule in Wisconsin that it is for DILHR, and not the courts, to evaluate conflicting medical testimony and assess its weight and credibility. Soo Line R.R. v. DILHR (Hintz) (Dane Co. Cir. Ct., 02/25/77).
659 Miscellaneous
The Complainant need not show that the Respondent�s actions resulted in tangible harm in order to establish unlawful retaliation.� The Respondent�s actions in telling the Complainant his chances for a promotion depended on withdrawal of his pending discrimination complaint amounted to unlawful retaliation.� Valyo v. St. Mary�s Dean Ventures Inc. (LIRC, 1/29/13).
In a claim of retaliation under the Wisconsin Fair Employment Act, a complainant must show that a reasonable individual would have found the challenged action to be adverse. That is, the action might well have dissuaded a reasonable individual from opposing any discriminatory act under the Act or from making a complaint, testifying or assisting in any proceeding under the Act. There is no bright-line rule. Whether alleged discriminatory conduct is sufficiently adverse can only be determined upon careful examination of the facts and circumstances presented in each case. Kruschek v. Trane Co. (LIRC, 12/23/10).
The Labor and Industry Review Commission has not adopted the view that a complainant is required to prove that an employment action is 'material' in order to be actionable under the Wisconsin Fair Employment Act. The statutory language of neither the WFEA nor Title VII imposes this requirement. The imposition of a requirement that alleged discriminatory employment conduct be 'material' is a judicially-created requirement in cases brought under Title VII. While federal law may be looked to for guidance in considering discrimination claims under the WFEA, federal law is not binding. Wisconsin courts must construe Wisconsin statutes as it is believed the Wisconsin Legislature intended, regardless of how the U.S. Congress may have intended that comparable statutes be construed. By its terms, the Wisconsin Fair Employment Act is to be liberally construed for the purpose of deterring and remedying discriminatory conduct of employers which infringes employees' civil rights. It would be inconsistent to impose a requirement that discriminatory conduct be 'material' simply in an effort to separate what some might consider to be 'significant' claims from 'trivial' claims. Kruschek v. Trane Co. (LIRC, 12/23/10).
What is 'material' in an employment relationship may be quite subtle. In a close case, the imposition of a requirement that the alleged adverse employment action be 'material' would likely cause the trier of fact to apply his or her own subjective belief as to what is or is not a material adverse action. Kruschek v. Trane Co. (LIRC, 12/23/10).
The fact that the Complainant was hired by the same individual who fired the Complainant only a short time later creates an inference that there was no improper discrimination. Anderson v. AWC Group (LIRC, 07/21/10).
Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions would form the basis of a discrimination suit. In this case, the Complainant failed to establish that a memo that was sent to the security director by her lieutenant constituted an adverse employment action. The Complainant alleged that the memo falsely accused her of being the subject of a large number of inmate complaints and of being unprofessional and demonstrating a lack of tact when working with inmates. The evidence failed to show that the memo cause the security director to form an unfavorable impression of the Complainant. The memo was an internal memo that was not made a part of the Complainant?s personnel file. The memo had absolutely no effect on the Complainant?s terms or conditions of employment. Gephart v. Department of Corrections (LIRC, 11/18/09).
In disciplinary cases in which a Complainant claims to have been disciplined more harshly, determining whether employees are similarly situated normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer's treatment of them. When different decision-makers are involved, the situations are rarely similarly situated in all respects. Different decision-makers may exercise their discretion differently. Castro v. Micro-Precision (LIRC, 06/25/04).
While the fact that two of the decision-makers in this case were similar in age to the Complainant might suggest that they would not prejudge his capabilities based upon his age, it is certainly not a truism that employers do not discriminate against individuals who are in the same protected class. Stern v. RF Technologies (LIRC, 02/06/04).
A business owner who discharges an employee because of that person’s protected status violates the law. It does not matter if it was done in an attempt to make the business more attractive to an outside party who was interested in investing in it. Trainor v. Hanson (LIRC, 04/28/00).
Generally, the failure to promote an employe will not be construed as a failure to hire, except in rare cases where the position sought by an employe and the position offered by the employer are so different that the employer's action can be considered a failure to hire rather than to promote. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).
Where allegations of discriminatory conduct are resolved by a settlement agreement, those allegations will not thereafter be considered if offered as evidence in a proceeding between the parties on a subsequent claim of discrimination. Where an individual claimed that the employer offered him money to give up his employment in an effort to settle an earlier discrimination claim, and such offer had been made prior to the parties having signed a settlement agreement releasing the employer from any and all claims arising out of conduct by the employer prior to the date the agreement was signed, the settlement agreement precluded the Complainant from using the offer as evidence of discriminatory motive in a subsequent discrimination claim allegating, among other things, retaliation in regard to discharge. Moncrief v. Gardner Baking (LIRC, 07/01/92).