STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


SANDRA WALK, Complainant

ANSUL FIRE PROTECTION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199555512, EEOC Case No. 26G960401


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 modifications:

Delete paragraph number 4 of the Findings of Fact and substitute the following therefor:

4. By July or August of 1994, Walk began engaging in unsatisfactory behavior which had an effect on the workplace. Walk was engaging in conduct towards coworkers which was bothersome, disruptive and sometimes bordered on threatening. Walk was constantly and repeatedly asking numerous coworkers if she could live with them and asking them to telephone her husband for her to try to persuade him to reconcile with her. Sometimes these requests were made in person at work, and sometimes Walk telephoned co-workers at home or went to their homes. It reached the point at which Walk was not getting her job done because she was spending most of the day making personal requests of co-workers. In one incident, Walk went to the home of a co- worker, asked if she could live with him, and made statements about weapons and about "ending things".

Delete paragraph numbers 9 through 11 of the Findings of Fact and substitute the following therefor:

9. Following her return to work on May 31, 1995, Walk initially performed all duties required of her in a satisfactory manner. However, by around late August to September, 1995, Walk again began engaging in unsatisfactory behaviors at work, showing an abrasive and uncooperative attitude towards taking instructions from others. Supervisors reported having difficulty putting Walk on jobs because she did not want to take instruction from hourly employes and would not pay attention to their attempts to demonstrate setups to her. Some hourly employes, and one outside contractor, informed Ansul that they did not want to work with her for this reason. Ansul had concerns about safety issues arising from Walk's refusal to pay attention to instructions regarding the operation of machinery. Walk was unjustifiably suspicious of Ansul's routine efforts to investigate the circumstances of a minor workplace injury Walk suffered operating a machine. In addition, many employes complained about difficulty getting along with Walk.

10.As these complaints and concerns about Walk's unsatisfactory behavior became more severe, Ansul contacted one of Walk's therapists, Dr. Eack, and on October 11, 1995, Ansul learned from him that Walk was not cooperating with treatment and had apparently discontinued her medications. This was in violation of Walk's return to work agreement, in which she had been expressly warned that any such violations of the return to work agreement could lead to her termination.

11.On October 11, 1995, Ansul informed Complainant that she was suspended until she provided a schedule of future therapy which she would then keep, and provided verification of her compliance with prescriptions that she take certain medications.

Delete paragraph number 15 of the Findings of Fact and substitute the following therefor:

15. From the time Walk began engaging in unsatisfactory behavior at work in 1994, Ansul believed that Walk's unsatisfactory work behaviors had some degree of connection to the mental disorders diagnosed in Walk by her treating professionals. Ansul believed that with appropriate treatment Walk would once again be a valuable employe.

Delete paragraph number 2 of the Conclusions of Law and substitute the following therefor, renumbering accordingly:

2. Walk is a handicapped individual within the meaning of Wis. Stat. 111.31 (8)(c), (Stats. 1995-96).

3. Walk's handicap was reasonably related to her ability to adequately undertake the job-related responsibilities of her employment at Ansul in 1994 and 1995, within the meaning of Wis. Stat. 111.34 (2)(a), (Stats. 1995-96).

4.Ansul reasonably accommodated Walk's handicap, within the meaning of Wis. Stat. 111.34 (1)(b), (Stats. 1995-96), by encouraging her to seek treatment instead of discharging when she engaged in unsatisfactory workplace behavior in 1994, by allowing her to return to work (with encouragement to continue treatment) when she was released by her therapists in 1995, and by merely suspending her (with encouragement to resume treatment) instead of discharging her when she thereafter broke her promise to continue in treatment and again engaged in unsatisfactory workplace behavior.

5. As of November 30, 1995, any further clemency and forbearance towards Walk's unsatisfactory workplace behavior and her failure to obtain the treatment considered by her therapists to be necessary to control that unsatisfactory workplace behavior, would have posed a hardship on Ansul's business, within the meaning of Wis. Stat. 111.34 (1)(b), (Stats. 1995-96).

DECISION

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

Dated and mailed: July 20, 1998
walksan.rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Introduction, Issues -- This case involves an allegation of discrimination because of a handicap (1) of mental illness. The facts are for the most part undisputed.

In early 1994, Complainant Sandra Walk, who had started working for Ansul Fire Protection in July, 1981 as an inventory auditor, began to experience problems for which she received mental health treatment. In the summer of 1994, she began engaging in unsatisfactory behaviors in the workplace which were disturbing to her coworkers and disruptive of Ansul's business. Ansul believed (or at least considered it possible) that the unsatisfactory behaviors were to some extent related to Walk's diagnosed mental disorders. Ansul did not respond in a disciplinary fashion to Walk's unsatisfactory behaviors, but rather required Walk to seek mental health treatment. Walk received inpatient treatment for a number of months. (2) When Walk's therapists released her to return to work at the end of May, 1995, Ansul re- employed her, but in view of what had occurred it continued its approach of requiring Walk to participate in mental health treatment -- an approach which was in accord with what Walk's therapists were recommending.

In late August or September, 1995, Walk again began engaging in unsatisfactory behaviors in the workplace which were disturbing to her coworkers and disruptive of Ansul's business. Ansul also learned at that time, that Walk had stopped going to treatment and had stopped taking the medications her therapists were prescribing for her. Again, Ansul responded consistently with the belief that the unsatisfactory behaviors were to some extent related to Walk's diagnosed mental disorders. Thus, while it imposed discipline, it was a restrained response of a three- day suspension, and that suspension was expressly coupled (and intended to induce Walk's cooperation with) a requirement that Walk resume the therapy and medication recommended by her therapists.

However, Walk did not cooperate with the requirement that she resume therapy, and she in fact broke it off. When this became clear to Ansul, it terminated her.

The Administrative Law Judge found, on the basis of essentially these facts (3), that Walk was not "handicapped" within the meaning of the Wisconsin Fair Employment Act. Presumably on that basis, he decided that there was no discrimination because of handicap.

The commission agrees with the result arrived at by the Administrative Law Judge, but its agreement with that result is based on a different rationale.

The elements of proof of handicap discrimination require that the complainant prove that she is handicapped within the meaning of the Act, and that the adverse employment action was taken because of that handicap. In a case such as this one, these can be unusually difficult issues to evaluate. (4) However, the commission does not find it necessary to address those issues in this case. Even if Walk's mental disorders caused her to engage in unsatisfactory behaviors which prompted Ansul to take the steps it did, the commission would still arrive at the decision that there was no unlawful discrimination, because Walk's handicap was reasonably related to her ability to adequately undertake the job-related responsibilities of her employment, and because Ansul fully discharged its duty to attempt to accommodate Walk's handicap. Therefore, the commission resolves this case by assuming, without deciding, that Walk had a handicap and that Ansul took the actions it did because of that handicap. The discussion which follows proceeds on the basis of this assumption.

Discussion -- Walk argues that she was handicapped within the meaning of the Fair Employment Act, in that (she asserts) she had a mental impairment which limited her capacity to work and placed a substantial limitation on her normal functions, Ansul perceived her as having a mental impairment which limited her capacity to work, and she had a record of having a mental impairment which limited her capacity to work and placed a substantial limitation on her normal functions. Complainant's Brief, p. 11. Walk also asserts, that Ansul took certain adverse employment actions against her because of her handicap.

The commission has found that the actions by Ansul of which Walk complains were caused by certain actions and behaviors of Walk herself. As noted above, the commission also assumes for the sake of analysis that those actions and behaviors were, indeed, "caused by" the mental disorders which had been diagnosed in Walk.

Thus, both the requirement that Walk enter into the return- to-work agreement in 1995, and Ansul's discharge of Walk later that year, which were motivated by certain actions and behaviors of Walk which the commission will assume were "caused" by her mental disorders, were "because of" Walk's handicap.

However, that does not end the inquiry. Instead, it simply shifts to the employer the burden of proving the applicability of the affirmative defense provided for in 111.34(2)(a), i.e., that the complainant's handicap is reasonably related to the complainant's ability to adequately undertake the job-related responsibilities of the employment. The commission concludes that the evidence establishes the applicability of that affirmative defense. Walk's behavior at work in 1994 prior to her hospitalization was reasonably viewed as unsatisfactory by Ansul. She cannot be considered to have been "adequately undertak[ing] the job-related responsibilities of [her] employment" when she was spending most of the day engaging in bothersome, disruptive and sometimes threatening interactions with coworkers. The same thing can be said of Walk's behavior at work in the fall of 1995.

Even if the affirmative defense provided for in 111.34(2)(a) is shown to be applicable, in order to avoid liability an employer must also show that it reasonably accommodated the employe's handicap, or that accommodation of the employe's handicap would be impossible or would pose a hardship on the employer's business. Copus v. Village of Viola (LIRC, 12/10/87). Walk argues that the requirement that she enter into the return-to-work agreement was an accommodation by Ansul, that Ansul breached the accommodation agreement by failing to hold certain weekly meetings with Walk which were provided for in the return to work agreement, and also that Ansul gave her the impression that the requirement that she continue in therapy was no longer in effect. On that basis, Walk analyzes Ansul's eventual decision to discharge her based on her alleged failure to comply with the return to work agreement, as a failure by Ansul to discharge its duty of accommodation.

The commission does not agree with this argument. The "return-to-work" agreement specifically stated that the obligations described by the agreement were imposed on Walk:

Beginning May 13, 1995, it is agreed that Sandy Walk, who is an employe returning to work following a rehabilitation program which the company required her to attend as a condition of employment, must adhere to the following conditions
: . . .
2. Meet weekly with Ansul's Occupational Health Nurse, Production Manager Standard Products, and direct supervisor to review performance on the job and appropriateness of conduct while at work
. . .
Per this discussion between company representatives and Sandy Walk on May 31, 1995, it is further agreed that failure to adhere to the above stated items may result in discharge.

The consequences of failure to adhere to the terms of the agreement were also expressly described as consequences that would fall on Walk, not Ansul. Given the language of the agreement, Walk would not reasonably have believed that if Ansul ceased holding these meetings, she could abandon her commitments under the agreement.

The commission also believes that Walk in fact did not believe this. Walk never asserted at the time, that she somehow believed that the fact that these meetings were no longer being held meant that she could stop taking her medications and stop going to therapy.

Finally, the fact that there was a period during which these meetings were not held, did not in any event cause Walk's discharge. Even if Walk somehow decided that she had become entitled to abandon her treatment, Ansul had made it clear to her by the imposition of the suspension in early October, that she was wrong, and that she was still expected to continue in therapy. Her choice after that point to reject further therapy, was her own, and it cannot be justified as a response to the absence of the meetings spoken of in the return to work agreement.

Conclusion -- Ansul satisfied both the letter and the spirit of the law requiring accommodation of handicaps. It repeatedly tolerated unsatisfactory behavior because of a concern that it might be a remediable product of a mental illness. Appropriately, it involved itself closely with Walk's therapists, never disputing their recommendations and approaches on such questions as when Walk could or could not work or on other matters, and sharing information and working with the therapists to get Walk back to the point where she could perform her job without engaging in unsatisfactory behaviors. Walk's participation in treatment was essential if the employer's accommodations were to be successful. Once Walk decided that she would not cooperate in treatment recommendations, it was clear that there was no further accommodation Ansul could make that would eliminate the problem which interfered with Walk's ability to do her job -- that problem being, her inappropriate behaviors which impacted negatively on her co-workers and on her work. For these reasons, the commission affirms the decision that Ansul did not discriminate against Sandra Walk in violation of the Wisconsin Fair Employment Act.

cc : Attorney Clay F. Teasdale
Attorney Donald J. Cairns


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Footnotes:

(1)( Back ) 1997 Act 112 changed all references to "handicap" in the statutes (including the Fair Employment Act) to "disability", effective April 30, 1998. Because the case arose and was decided by the Administrative Law Judge prior to this change, the commission will use the term "handicap" in this decision.

(2)( Back ) Walk was initially diagnosed in October 1994 as suffering from a "personality disorder, not otherwise specified", and a "psychotic disorder, not otherwise specified". Walk's diagnoses changed somewhat over time. Other diagnoses during the periods involved here, were major depression with psychotic features, obsessive-compulsive difficulties, and a mixed personality disorder with narcissistic traits.

(3)( Back ) The commission was in substantial agreement with the material findings of fact of the Administrative Law Judge. It has modified his Findings of Fact as set forth above, only to set forth the factual basis for the decision more fully.

(4)( Back ) It is not without reason that it has been observed, that the application of handicap discrimination laws to persons suffering from mental illness "presents difficult issues". Palmer v. Circuit Court of Cook County, 117 F.3d 351 (7th Cir. 1997). A particularly difficult issue is presented where an employer has taken an action because an employe engaged in certain behavior, it is asserted that the employe engaged in the behavior because of a mental disorder, and it is then argued that the employer therefore acted because of the mental disorder. See, e.g., Despears v. Milwaukee County, 63 F.3d 635, 635-36, (7th Cir. 1995). The difficult question in such cases, is the degree of causal connection that must be shown to establish that a mental disorder "caused" certain behavior. Ibid., 63 F.3d at 636. That question is so difficult because of the sharp contrast between the legal and medical paradigms for explaining what "causes" a person's behavior. "[B]elief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil" is a core concept that is "universal and persistent in mature systems of law." Morissette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 243, 96 L. Ed. 288 (1952). The question of how to square this legal paradigm with a deterministic medical view that frequently sees maladaptive behavior as being "caused" by mental illness, has long troubled criminal law, see e.g., Kwosek v. State, 8 Wis. 2d 640, 100 N.W.2d 339 (1960), Hallows, J. concurring, at 651-655, as well as civil law, see, e.g., Gould v. American Family, 198 Wis. 2d 450; 543 N.W.2d 282 (1996); Burch v. American Family, 198 Wis. 2d 465; 543 N.W.2d 277 (1996). Enactment of prohibitions on discrimination because of handicap, coupled with the "increasing rate at which new [mental] illnesses are discovered to explain behavior", and the "infinite types and degrees" of mental impairments and disorders, Gould, supra, 198 Wis.2d at 460, have brought this problem to the fore in employment discrimination law as well. No clear solution to this problem has emerged. Some decisions have treated work-related misconduct as a surrogate for a mental disorder handicap if it is "precipitated by" (Palmer, supra), or "engendered by" (Adams v. Alderson, 723 F. Supp. 1531 (D.D.C. 1989)), or "stemm[ed] from" or was "symptomatic of" (Landefeld v. Marion General Hospital, 994 F.2d 1178 (CA 6, 1993)), or was "a result of" (Houck vs. Prairie Village, 978 F. Supp. 1397; 1997 U.S. Dist. LEXIS 16877 (DC KS, 1997)), that mental disorder, without undertaking to explore or explain the meaning of this connection or the terms chosen to describe it. Other decisions have looked to the question of whether, even though the disability may have contributed to the misconduct, it compelled the misconduct, or if on the other hand it was within the power of the person involved to have not engaged in the misconduct. Despears, supra, 63 F.3d at 637; compare, Connecticut General Life v. DILHR, 86 Wis. 2d 393, 408, 273 N.W.2d 206 (1979). Because the commission assumes adequate causation here, it does not decide this issue.