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


JAMES R SCHNEIDER, Complainant

WAL-MART STORES INC, Respondent 

FAIR EMPLOYMENT DECISION
ERD Case No. 199602331, EEOC Case No. 26G961399


An administrative law judge 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:

1. Paragraph fifteen of the administrative law judge's FINDINGS OF FACT is deleted, and the following is substituted therefor:

"The complainant's disability was not reasonably related to his ability to adequately perform the job-related responsibilities of his employment."

2. The following paragraph is inserted after paragraph four of the administrative law judge's ORDER:

"The respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $817.79."

3. Paragraph five of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708."


DECISION

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

Dated and mailed: January 12, 1999
schneja.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case involves the question of whether the complainant was discriminated against based upon disability (1) when he was discharged from his position as lower bay technician by the respondent. The complainant's burden in a disability discrimination case under the Wisconsin Fair Employment Act (hereinafter "Act") is to show that he is disabled within the meaning of the Act and that there was an adverse employment action based upon that disability. If the complainant meets his burden in this regard, the respondent then has the burden of demonstrating both that the disability was reasonably related to the complainant's ability to adequately perform the job-related responsibilities of his employment and that accommodation of the disability would pose a hardship on the employer's business. Copus v. Village of Viola (LIRC, December 10, 1987); Wis. Stat. 111.34(1)(b) and 111.34(2)(a).

Does the complainant have a disability, within the meaning of the Act?

Wis. Stat. 111.32(8) defines the term "individual with a disability" as an individual 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 Act 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 concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, 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).

In this case, the complainant established that he suffers from obsessive compulsive disorder (hereinafter "OCD"). OCD is a chemical imbalance which affects the normal function of the brain, and quite clearly constitutes an impairment, within the meaning of the Act. Informational materials on OCD which the complainant submitted at the hearing indicate that OCD is an anxiety disorder which renders people unable to stop their unwanted thoughts and "robs them of their ability to work, love and play." Regarding the complainant's specific case, which his therapist described as "severe," the complainant testified that, among other things, he goes though periods where he is afraid to open his drapes for weeks at a time or is afraid to leave his house unless he absolutely has to. Given these facts, the commission believes that the complainant has satisfactorily demonstrated he has a disability that makes achievement unusually difficult for him.

In the petition for commission review, the respondent argues, for the first time, that the complainant did not prove he is disabled. The respondent now maintains that the complainant's OCD was under control through the use of medication and, therefore, cannot be considered a disability under the Act. The commission initially notes that, contrary to the respondent's assertions, the question of whether a condition that can be corrected or controlled with medication is a disability within the meaning of the Act is not one that has been previously decided by the commission and, moreover, the commission considers it unnecessary to reach that issue in this case. Notwithstanding the respondent's contentions, it is clear from the record that the complainant's disability was not controlled by the medication he was taking and, indeed, the complainant's entire predicament stemmed from the fact that his medication was not working. The complainant took a leave of absence in order to switch to a more effective medication and gradually phased in his return to work in order to adjust to the transition to new medication. It was during or shortly after this period of adjustment, which the complainant's therapist indicated was designed, in part, to prevent lapses in anger control, that the complainant engaged in the conduct for which his employment was terminated. It is, therefore, apparent that, while the complainant was attempting to find a course of medication that would control his disability, at the time of his discharge his disability was not completely controlled by his medication.

Moreover, even if the commission were to find that the complainant did not have a disability, within the meaning of Wis. Stat. 111.32(8)(a), it would nonetheless conclude that the respondent perceived him as having one. The complainant's supervisor, Mr. Puccio, knew, at minimum, that the complainant was in therapy, that the complainant was taking what was referred to in the workplace as his "nut pills," and that the complainant required a leave of absence from work in order to adjust his medications. Although Mr. Puccio denied having any knowledge about the specifics of the complainant's diagnosis--a contention which, like the administrative law judge, the commission does not credit--even in the absence of such knowledge, it is hard to imagine that Mr. Puccio did not perceive the complainant as having a mental disability. Under all the circumstances, the commission believes it must be found that the complainant has established the first prong of his case.

Was the complainant subjected to an adverse employment action based upon his disability?

The second element of the complainant's burden of proof in this matter is to establish that he was discharged because of his disability. It is undisputed that the complainant was discharged because of his outburst at a staff meeting. If the complainant established that the outburst was caused by his disability, then his termination must be considered, in legal effect, to have been because of his disability. See Crivello v. Target Stores (LIRC, August 14, 1996), citing Bell-Merz v. Univ. of WI (Personnel Commission, March 19, 1993) and Conley v. DHSS, (Personnel Commission, June 29, 1987).

The commission believes that the complainant has satisfied his burden in this regard. The complainant established that he suffers from OCD, and that people with OCD are plagued by obsessive thoughts. The record also established that the complainant was obsessively focused on the idea of obtaining the bay manager position--the complainant testified that he had been consumed for "weeks and months" with the position, and this is well borne out by the record. In addition to the fact that the complainant's OCD resulted in obsessive thoughts, the complainant's therapist indicated that the complainant's condition made it difficult for him to control his anger and that, at the time of the events which resulted in his discharge, she was in the process of trying to adjust his medication to help him achieve better anger management. Under these circumstances, the commission is satisfied that the complainant's actions in becoming profoundly upset and acting out at a meeting in which he learned that someone else had been selected for the bay manager position were attributable to his OCD and that his resulting discharge was, in legal effect, because of his disability.

Was the complainant's disability reasonably related to his ability to adequately perform the job-related responsibilities of his employment?

The complainant having met his burden, the burden now shifts to the respondent to establish both that the complainant's disability was reasonably related to his ability to adequately perform the job-related responsibilities of his employment and, if so, that accommodation of the disability would have posed a hardship on the respondent's business. The commission is unpersuaded that the respondent has met its burden in this case.

The complainant's OCD interfered with his ability to maintain a professional demeanor at a staff meeting. Depending upon the nature and circumstances of the job, the complainant's conduct in that instance might be sufficient to warrant a conclusion that his disability was reasonably related to his ability to undertake his job-related responsibilities. However, the circumstances in this case do not warrant such a conclusion. Here, the complainant's job duties consisted basically of assisting with oil changes, and his job was not one involving stressful business or interpersonal situations. The complainant's OCD clearly did not affect his general job performance, as evidenced by his "above standard" and "outstanding" performance evaluations, and the record paints the picture of an extremely conscientious and motivated worker. Although the OCD did cause the complainant to take a leave of absence on one occasion, it did not affect his general attendance, which the respondent considered to be excellent. Further, in spite of the incident at the final staff meeting, it is clear that the complainant was able to get along with his co-workers and supervisors and that his OCD did not prevent him from maintaining acceptable workplace relationships.

Based upon those factors, the commission does not believe that the fact the complainant's OCD adversely affected his job performance on one occasion, under circumstances which even a non-disabled person would find upsetting and which were unlikely to recur in the course of his employment, is sufficient to warrant a conclusion that his disability was reasonably related to his ability to undertake his job-related responsibilities. Consequently, the commission concludes that the respondent's actions in discharging the complainant based upon his disability were in violation of the Act.

Did the respondent refuse to provide the complainant with a reasonable accommodation?

The administrative law judge made no findings on the question of whether the complainant's disability was reasonably related to his ability to perform the job, and addressed only the question of reasonable accommodation. However, because the commission concludes that the respondent failed in its burden of demonstrating a reasonable relationship between the complainant's disability and his ability to adequately perform the job-related responsibilities of his employment, the commission considers it unnecessary to include any findings on the question of whether the respondent refused to provide the complainant with a reasonable accommodation for his disability and has deleted those findings from the decision. The commission does note, however, that even if the evidence did support a conclusion that a reasonable relationship existed between the disability and the responsibilities of the job, it would be inclined to agree with the administrative law judge that a reasonable accommodation was available which the respondent failed to provide, and would find discrimination on that basis.

In its petition the respondent argues that it was not required to provide an accommodation for the complainant because he did not request one. However, the Act contains no requirement that an employe specifically request an accommodation. See Janocik v. Heiser Chevrolet (LIRC, November 21, 1994). Where the employer is aware of the employe's disability and knows what type of accommodation the employe requires, it is reasonable to expect the employer to offer the accommodation, even in the absence of a specific request from the employe. Crivello v. Target Stores (LIRC, August 14, 1996), aff'd. Target Stores v. LIRC and Mary Crivello, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998). Thus, the fact that the complainant did not specifically request an accommodation did not necessarily relieve the respondent of its duty to provide one.

The evidence adduced at the hearing established that Mr. Puccio knew about the complainant's disability and how it affected him and, further, that he was well aware of the complainant's fixation on obtaining a promotion to the position of bay manager. Indeed, Mr. Puccio himself had led the complainant to believe that he was being groomed for that position. Given these factors, Mr. Puccio should have been able to foresee the complainant's reaction when the disappointing news was broken to him at a staff meeting and should have made those accommodations which would have reasonably enabled the complainant to preserve his employment. As the administrative law judge noted in his decision, Mr. Puccio could have accommodated the complainant by breaking the news to him under circumstances that were not so clearly designed to elicit a negative reaction. However, rather than making a special effort to accommodate the complainant's disability by taking him aside and discussing the matter with him privately, Mr. Puccio accorded the complainant even less consideration than a non-disabled employe would expect under similar circumstances and handled the matter in a manner virtually guaranteed to cause an outburst.

The respondent takes issue with this analysis, arguing that it is unreasonable to expect it to have anticipated the complainant's reaction to the announcement and that it had every reason to believe the complainant's disorder was under control. The commission does not find this argument persuasive. To the contrary, the complainant had just returned to work from a leave of absence which was taken specifically because he was experiencing problems relating to his disability, and was released to return to work just a few days at a time because of ongoing concerns about the effect his disability might have upon him. The complainant's supervisor was on notice of these facts and had been told that he should feel free to contact the complainant's therapist if he had any questions or concerns about the complainant's behavior. Consequently, the commission does not believe that the respondent was justified in assuming that the complainant's disorder was under control and that no accommodation need be considered.

Moreover, even if the commission were to accept the respondent's argument that Mr. Puccio could not have been expected to foresee the complainant's reaction to the announcement, there was still another accommodation available that would have enabled the complainant to preserve his employment. As the administrative law judge pointed out in his decision, the respondent could have accommodated the complainant's disability by imposing some lesser degree of discipline than discharge. The respondent's own work rules do not mandate discharge for behavior such as the complainant's, and the respondent would not have had to disregard its own disciplinary policies in order for the complainant to remain employed. (2) Moreover, although the respondent maintains that such an accommodation would have required it to tolerate poor job performance, this is not borne out by the record. As discussed above, the complainant's work performance was consistently above average, and the commission does not believe that one isolated instance of inappropriate behavior under circumstances that were unlikely to recur had an adverse effect on his ability to adequately perform the job. While in its petition the respondent attempts to characterize the complainant's behavior as "violent" and, therefore, completely intolerable, the record failed to demonstrate that the complainant shouted, threatened, used profanity, or otherwise exhibited violent behavior. One of the respondent's own witnesses provided the following description of the complainant's conduct:

"What happened was Mark [Puccio] called all of us together . . . to announce that he was going to have Dave Volkman as a new service manager. And after he made that announcement, [the complainant] got excited and said, "He's not qualified and I quit." And at that time I thought it was very unprofessional. That just usually isn't the way things are done, you know, when you make an announcement, but then that was basically it. He walked away and I went back out on the floor."

(Transcript, at 96-97.)

The complainant's behavior, while unquestionably inappropriate and disruptive, was not shown to be so serious as to warrant immediate discharge, and the respondent has not made the case that the imposition of a lesser degree of discipline would have resulted in any hardship to it.

Finally, the respondent makes the argument that it provided the complainant with a reasonable accommodation when it allowed him to take time off of work to deal with his disorder and subsequently altered his work schedule so as to preserve his employment status. However, while the respondent may have accommodated the complainant's disability at other points throughout his employment, the duty to accommodate is not a static one. Target Stores v. LIRC and Mary Crivello, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998). To the contrary, the fact that the respondent accommodated the complainant's disability at an earlier juncture does not relieve it of its continuing duty to provide those reasonable accommodations which are necessary to enable the complainant to preserve his employment relationship.

Attorney fees

The complainant is entitled to reimbursement for his reasonable attorney fees and costs associated with replying to the respondent's unsuccessful petition for commission review. He has requested a total of $817.79 in such fees and costs. The respondent has not raised any objection to the complainant's fee request, and the commission considers it to be a reasonable one. Consequently, the commission has modified the administrative law judge's decision to include an award of attorney fees in the amount requested.

 


Pamela I. Anderson, Commissioner, (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. My major disagreement with the majority is on the question of reasonable accommodation. The employer knew that the employe had a medical problem but there had been no problems with the complainant's ability to deal with anger at work. The employer accommodated the complainant with a leave of absence when his medication was being changed and adjusted for proper dosage. At that time, the complainant told the supervisor that "it wasn't anything work related, it was more personal or family things." His therapist told the employer that "they changed his medication, that it may take some time that, to go through his system or something in that line. Be a little while yet."

The employer had no idea that the complainant would react with an outburst at work and refuse to be quiet when told repeatedly to be quiet. The employer had suggested that they discuss the problem later and the employe said he was quitting. The employer did not accept the quit and after discussion with the regional personnel manager the supervisor discharged the complainant for insubordination.

The two accommodations suggested are not reasonable accommodations. The employe had never been promised the promotion and had only been told he needed to improve in certain areas before he could be promoted. The employer did not perceive that the employe had a disability that related to his work so it is difficult to see how they could have accommodated the complainant by talking to him ahead of the announcement. The other accommodation suggested was to give him coaching rather than to discharge him. In reading the record, I believe that the employer treated him reasonably by not immediately accepting his quit and trying to talk to him about the situation. The employe was not only disruptive and did not follow orders to be quiet and meet with the supervisor, but he went home. If the employer had intended to discriminate against the complainant based on his disability, all they would had needed to do was accept his quit.

I do not believe that the therapist went into much detail with the supervisor when she called to excuse the complainant from work. She was asked if she explained the obsessive-compulsive disorder to the supervisor and she said, " I don't remember how much depth I went with him but I remember telling Mark something to the effect that Jim was highly affective." She also stated that the supervisor "..was wonderful, and said he had understood. He had appreciated my making contact with him. That, you know, he said he would do anything in his power to work with me and in helping Jim to do what he needed to do."

I believed the supervisor was truthful but he was not the best historian. I believed he was saying all that he remembered whether it helped or hurt the employer's case.

For these reasons, I would reverse the finding of discrimination in this case.

Pamela I. Anderson, Commissioner

 

cc:
Dean R. Dietrich
William J. Holloway


Appealed to Circuit Court.  Affirmed August 23, 1999. Appealed to Court of Appeals;  reversed and remanded September 21, 2000, sub nom. Wal-Mart v. LIRC and Schneider, 2000 WI App 272, 240 Wis.2d 209, 621 N.W. 2d 633

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Footnotes:

(1)( Back ) In recently-enacted remedial legislation, the obsolete term "handicap" contained in the Wisconsin Fair Employment Act was replaced generally with the term "disability." 1997 Wis. Act 112.

(2)( Back ) The respondent's handbook provides that employes will receive "Coaching For Improvement" in situations other than "gross misconduct." The handbook enumerates examples of gross misconduct, including violation of the respondent's "Statement of Ethics" policy. According to Mr. Puccio, the gross misconduct in which the complainant engaged was "insubordination under the Statement of Ethics policy." However, the respondent neither demonstrated that the complainant was insubordinate, nor introduced the Statement of Ethics policy into the record. Consequently, the commission is unconvinced that the complainant's conduct warranted more than coaching under the respondent's own rules.