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


DAVID L SAMPSON, Complainant

S & S DISTRIBUTING INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702048, EEOC Case No. 26G971287


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.

DECISION

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

Dated and mailed November 19, 1999
sampsda.rsd : 164

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In his petition for commission review and supporting briefs the complainant argues that the respondent failed to show that his disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his job. (1)    This argument is without merit. Although the complainant may have been able to adequately perform his job duties insofar as he could load, unload, and drive truck for the respondent without impediment, his disability prevented him from conforming his conduct to the respondent's general expectations, and the evidence established that it adversely affected his interactions with his co-workers and prevented him from maintaining acceptable workplace relationships. Specifically, it was shown that the complainant's depression caused him to react violently towards his managers and co-workers, screaming, swearing and hurling clipboards at them, and ultimately threatening to kill himself and others. It cannot seriously be argued that a disability which causes such conduct has no bearing on an individual's ability to adequately undertake his job-related responsibilities and the commission is satisfied that a reasonable relationship has been established.

The complainant also makes the argument that, at the time he was discharged, the respondent knew from Dr. Malzer and the police that he was not at risk to hurt himself or others. The complainant asserts that the respondent failed in its burden of conducting a "case-by-case" analysis with respect to whether the present and future safety of the complainant and his co-workers was at risk, contending that because the complainant threatened to take his own life and take someone with him, it is "off the hook." Again, this argument fails. The commission initially notes that, because it believes the complainant's disability generally interfered with his ability to adequately undertake his job-related responsibilities, within the meaning of Wis. Stat. 111.34(2)(a), it is technically unnecessary to determine whether he also posed a safety risk in the workplace, pursuant to Wis. Stat. 111.34(2)(b). That said, however, the commission does agree with the administrative law judge that the complainant pose a safety risk in the workplace, as contemplated by subparagraph (b) of the statute.

While, as the complainant points out in his petition, the statutory section in question does provide that an analysis of whether an individual poses a safety risk must be made on a case-by-case basis, the commission sees no reason to believe that the respondent has not satisfied that requirement. A requirement that the respondent assess whether an individual constitutes a safety risk on a case-by-case basis is meant to prohibit an employer from jumping to the arbitrary conclusion that, because a worker has a psychiatric disability, he or she necessarily poses a threat in the workplace. Here, however, the respondent's conclusion that the complainant posed a safety risk was not based upon generalized assumptions about people with psychiatric disabilities, but upon the complainant's own specific actions in becoming enraged at the workplace during which time he would scream and throw clipboards at his co-workers, in repeatedly stating a desire to burn down his home with his wife and children in it, and in threatening to kill himself at the workplace and take certain co-workers with him. Nothing in the record suggests that the complainant's actions were meant as a joke, and it is clear that they were not perceived as such, as several of his co-workers testified that they were genuinely frightened by the complainant's actions. Given all of the facts and circumstances, the commission believes that these fears were justified, and it is satisfied that the respondent had sufficient evidence before it upon which it could reasonably conclude that continued employment of the complainant would pose a safety risk in the workplace, within the meaning of Wis. Stat. 111.34(2)(b). The respondent was not required to ignore this evidence simply because the complainant's psychologist and a police officer held an opinion to the contrary.

Although in his petition and briefs the complainant stridently maintains that his disability was not reasonably related to his job performance, such that no accommodation was necessary, he also contends that, in the alternative, the respondent failed to consider reasonable accommodations that would have allowed him to remain at work. The complainant argues that, at minimum, the respondent was obligated to seek a second opinion concerning his depression and whether it posed a risk to himself or others. He further suggests that the respondent could have initiated a discussion about minimizing any perceived risk in the workplace or that it might have engaged in the "simple process" of ensuring that he stayed in treatment and on his medication. The commission disagrees with these assertions. Regarding the survey of mental health care professionals which the complainant suggests the respondent should have undertaken, the commission notes that this appears to be directed at determining whether the complainant, in fact, posed a safety risk in the workplace, rather than at finding an accommodation that would permit him to perform his job despite his disability. Determining whether an employe has a disability which is reasonably related to his ability to perform the job is not, in and of itself, a form of reasonable accommodation, nor does an employer necessarily have a duty to consult with an employe's physician by way of providing a reasonable accommodation. See Kellow v. LIRC, Washington Co. Cir. Ct., Case No. 89-CV-274, April 18, 1990.

Further, and more importantly, the commission agrees with the administrative law judge that an employer need not tolerate threats of violence in the work place, regardless of whether a trained psychologist has opined that he does not believe the worker in question intends to act on his threats of harm. As the complainant's psychologist indicated at the hearing, there is no reliable way of predicting an individual's future conduct and, even if the complainant were able to definitively establish that he did not actually intend to harm himself and his co-workers, as he repeatedly indicated was his wish, the fact remains that his co-workers were entitled to work in an environment free of such threats.

Finally, regarding the complainant's suggestion that the respondent should have helped him stay in treatment and on medication, the commission must reject this for a number of reasons. In the first place, the complainant never asked the respondent for any assistance regarding the treatment of his condition and the respondent had no way of knowing that the complainant either required or wished to receive such assistance. Further, even assuming the complainant could demonstrate that a particular course of treatment or medication was available which would have enabled him to adequately undertake the job-related requirements of his position and would have prevented recurrence of the misconduct in question, he has not established that to keep him in treatment and on medication would have been a "simple" process, as he alleges, and the commission sees no reason to believe this would have been the case. Moreover, the commission declines to require an employer to assume responsibility for a worker's psychiatric treatment by way of reasonable accommodation, even if it were feasible for it to do so. (2)

Under all of the facts and circumstances, the commission believes that the complainant failed in his burden of demonstrating that the respondent refused to provide him with a reasonable accommodation, and it agrees with the administrative law judge that to require the respondent to retain the complainant under the circumstances present in this case would have resulted in an undue hardship to it. For these reasons, the dismissal of the complaint is affirmed.

cc: Ellen M. Frantz
Timothy S. Jacobson


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Footnotes:

(1)( Back ) The commission has not expressly considered the issue of whether the complainant, in fact, established that he has a disability, within the meaning of the law, or whether that disability caused him to engage in the conduct for which he was discharged. For the purposes of this opinion, the commission assumes that the first two prongs of the complainant's case have been satisfied and has limited its analysis to those issues raised by the complainant on appeal--whether the complainant's asserted disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment and, if so, whether the respondent failed in its burden of providing him with a reasonable accommodation.

(2)( Back ) The commission considers it noteworthy that even the complainant's own spouse refused to take responsibility for monitoring his medications, testifying that she did not believe it was her place to do so and that the complainant was a "big boy" who could take care of himself.