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


EDWARD G. STAATS, Complainant

COUNTY OF SAWYER, Respondent A

COUNTY OF BAYFIELD, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 9500906, EEOC Case Nos. 26G950882, 26G950883


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on August 23, 1996, finding that the respondents had discriminated against the complainant in violation of the Wisconsin Fair Employment Act because of his handicap. The respondents filed a timely petition for commission review. The commission received the file from the division on April 10, 1997. Both parties subsequently submitted written argument to the commission.

Based upon a review of the record (1) in its entirety, the Labor and Industry Review Commission hereby issues the following:

FINDINGS OF FACT

1. Sawyer and Bayfield Counties are political subdivisions of the State of Wisconsin and employ people in various capacities in several departments.

2. Robert Kinney, respondent Sawyer County's Board Chairman, and Fred Janz, respondent Bayfield County's Board Chairman, executed a Joint Personnel Director Agreement on behalf of their respective counties in May 1993, in which it was agreed the counties would hire a full-time personnel director who would function part-time on behalf of each county. The terms of this agreement provided that it was to initially extend through December 31, 1993, and thereafter be automatically extended for successive one year terms unless one party notified the other of its intent to withdraw from the agreement no later than September 1 immediately preceding the end of the original or any extended term.

3. The respondents hired the complainant, Edward Staats, in May 1993 to function as the personnel director for their counties. Since Staats chose to live in Sawyer County, that was considered the employing county. Bayfield County paid Sawyer County for half of Staats' salary and fringe benefits. Staats split his time between working at his office in Sawyer County and his office in Bayfield County. Staats' duties as personnel director included preparing a personnel policy manual for the counties, sitting in on interviews and assisting in hiring decisions, handling grievances and negotiating union contracts. Pamela Alexander, employed as a confidential and personal secretary by Sawyer County, worked as an assistant to Staats. Alexander testified that regular working hours were 8 to 4 but that Staats put in a lot of overtime, working on evenings and sometimes weekends. Thomas Gordon, Bayfield County Clerk, testified that when in Bayfield, however, Staats mostly worked from 8 until 4, the same as everyone else.

4. Staats suffers from a bi-polar disorder. He was first diagnosed with this disorder in 1970, for which he has apparently been intermittently prescribed medication as treatment. A bi-polar disorder is considered a mood disorder. Individuals with this disorder alternate from becoming extremely depressed at one pole and going to the opposite pole to a high feeling. Individuals with a bi-polar disorder follow a cycle, which is variable, as is the degree of their presentation. Some individuals are very rampant in their cycling while some do not cycle as frequently. They can be dangerous. When at the manic pole their judgment becomes poor, and they can become quite delusional and agitated. When they become depressed they are more of a danger to themselves, as they have a high suicide rate. Between 10 to 15 percent commit suicide. Treatment for the disorder includes psychotherapy and medication (called mood stabilizers). Mood stabilizers are time limited, however. A person with this disorder will suffer a relapse. It does not resolve and go away. The hope is that mood stabilizers can prevent the cycle from being repeated as quickly. If a person has treatment, is cooperative and has insight into the disorder, the likelihood of relapse decreases. There is an increased likelihood of a manic episode if a person is under stress. Staats' disorder was described as bi-polar I, the more severe form of bi-polar disorder.

5. Beginning sometime in August 1994, Staats began having problems at work. Staats began arriving for work late, leaving work early, missing scheduled meetings and generally otherwise failing to handle his job responsibilities. Both counties experienced these problems with Staats. Thomas Gordon and Kris Mayberry, Sawyer County Clerk, conferred about the problems they were having with Staats.

6. On or about September 19, 1994, Staats was hospitalized in La Crosse, Wisconsin and missed work until on or about September 29 or 30, 1994. Upon his hospitalization, Staats telephoned Pamela Alexander and told her that he was in the hospital because of problems with his medication. At this time Alexander had also spoken to Staats' family members who advised her that Staats was ill. Alexander notified Kinney that Staats was in the hospital.

7. On September 27, 1994, Fred Janz called an emergency meeting for the Bayfield personnel committee to discuss the problems being experienced with Staats. The minutes of this meeting indicate that Janz considered mental illness as a possible explanation for Staats' behavior, as Janz is recorded as stating that he "did not know if the problems stemmed from substance abuse or mental illness..." Janz requested authorization to meet with Sawyer County representatives to see what could be done. During this meeting county board member Frank Koehn commented that "whatever is done, the Employe Assistance Program should be offered."

8. Alexander described Staats as being very confused and disorganized when he returned to work in late September. Alexander, who had been out on maternity leave from August 4 through September 26, 1994, stated that before she went on maternity leave Staats had been extremely organized, meticulous in appearance and the presentation of his work, fair minded and an excellent problem solver.

9. Staats apparently only worked during two days when he returned to work in late September. Staats was again hospitalized in La Crosse at the Gundersen/Lutheran Medical Center on October 4, 5, and 6, 1994. At Staats' request, on October 6, 1994, Dr. David Metzler, from the medical center's Department of Behavioral Medicine who was treating Staats, notified Fred Janz that Staats had been hospitalized until October 6 "for observation and medication adjustment." Meltzer stated that Staats was doing well, although he felt that Staats still needed a period of convalescence and should take a one to two week period of time for recovery.

10. By letter dated October 8, 1994, Attorney Stephen Weld from Weld, Riley, Prenn & Ricci, and labor counsel for Sawyer County, informed Staats that Sawyer and Bayfield county officials had been advised of his hospitalization, and that he would be paid sick leave until his sick leave was exhausted and then would be placed in unpaid leave status if his sick leave was exhausted before he was physically able to return to work. Weld's letter stated that pursuant to the Family and Medical Leave Act, Staats' insurances would be paid for up to 12 weeks. Weld's letter also stated that the counties had no idea as to the cause of Staats' hospitalization and was therefore requesting he sign a release authorizing them to contact his physician(s) so they could determine when, if ever, he would be able to return and what type of accommodations, if any, were appropriate. Weld advised Staats that before he returned to work, his physician(s) must give the counties written notice that he is physically able to return to work, with or without reasonable accommodation.

11. Weld further notified Staats that after his return his 1994 performance would be evaluated, as both counties had concerns regarding his performance and were preparing to meet with him when advised of his hospitalization. Finally, Weld notified Staats that "in this difficult budget year, both counties are seriously re-evaluating the need for the Personnel Department in 1995."

12. Bayfield County Clerk Thomas Gordon testified that in September or October 1994, Staats left a cooler containing bottles of beer in his office for a period of 3 or 4 weeks. At some point around the middle of October 1994, Staats appeared at a going away party for Gordon's deputy wearing his pajama tops under his jacket. While at the party he poured coffee and cream into the punch. According to a Hayward Police Department report, on October 19 the police responded to a report of a man, later identified as Staats, causing a disturbance at the Hayward Hospital. Apparently two nights later Staats left his vehicle parked in the middle of Highway 63 in Bayfield county and was found at a bar. The county sheriff's report states that Staats, who did not appear intoxicated, complained about being tired and unable to sleep. The report indicates that Staats was evaluated at the Memorial Medical Center in Ashland, and then transported to North Central Health Care Facility in Wausau where he remained for about the next four weeks until mid November. Apparently, Staats was at this facility under involuntary commitment. While at the North Central Health Care Facility, Staats wrote two letters, which he signed "Love Ed," to Linda Hand (Smilek) who handled payroll for Sawyer County, prompting Smilek to report concerns about the appropriateness of the letters' contents and her personal safety.

13. During a closed session meeting of the Sawyer County Board of Supervisors on October 20, 1994, at which Attorney Weld presented information concerning the status of Sawyer County's Personnel Department and Staats, the Board voted to discontinue the Joint Personnel Director Agreement with Bayfield County. The Board directed Weld to obtain more information about Staats' status and to report to the Board at a later meeting. County Board Chairman Robert Kinney was directed to supervise Personnel Secretary Pam Alexander until further Board action. Later in November 1994, Kinney was appointed acting personnel manager.

14. In a meeting on October 24, 1994, the Bayfield Personnel Committee decided to "go along with whatever decision Sawyer County made regarding the Personnel Director's position." In Staats' absence, County Clerk Gordon was assigned the personnel director's duties, along with some being assigned to Chairman Janz and to Attorney Katherine Prine with whom the county had an agreement.

15. Sawyer and Bayfield Counties' decision to discontinue the Personnel Director Agreement was not in accord with the terms of that agreement as the agreement required notice of one party's intent to withdraw from the agreement to be served on the other party no later than September 1.

16. Sawyer and Bayfield Counties begin work on their budgets for the next year by asking department heads in August to submit their budget requests. Those requests are then compiled and sent to the finance and budget committees for the respective counties to filter through and make recommendations regarding the budget requests in September. The budget requests then go to the full county boards, which after further deliberation, publishes and finalizes the process by adopting a budget. Both counties were under a tight budget, caused in part by the budget cap imposed on county and local governments by the state. The Sawyer and Bayfield county boards completed the 1994 budget process for the 1995 year on November 15, 1994.

17. Despite Sawyer and Bayfield Counties' decision to withdraw from the Personnel Director Agreement, both counties passed budgets for 1995 which continued funding for personnel functions. Sawyer County's line-item budget for 1995 shows funding allocated for its Personnel Department at about $5,500 over its 1994 level. Bayfield County's line-item budget for 1995 specifically identifies funding for the position title "Personnel Director," and the funding for this position was increased slightly over the 1994 funding level. Sawyer County Board Chairman Kinney testified that "we decided to leave the money in there in the event that we could work out our problems and have the unit function."

18. In a letter dated November 16, 1994, Attorney Weld notified Staats that Sawyer County had initiated the termination of the Joint Personnel Director Agreement between Bayfield and Sawyer Counties, with the result that the Personnel Director's position would be eliminated effective January 1, 1995. Weld also notified Staats that as a laid off employe, he had a right to bump into a lower paying 60% FTE Personnel Assistant position when his position was eliminated, if physically able, and if not physically able at that time, he could if he became physically able at any time during his six-month layoff recall period. Weld also stated that there was a need to re-examine Staats for the remainder of the year and requested a signed release authorizing the County to contact his physician. Weld requested that the physician provide written notice of Staats' physical ability to return to work and what accommodations, if any, would be necessary to allow him to perform the essential functions of the job. Finally, Weld advised Staats that he had exhausted his paid sick leave and accumulated vacation and was therefore placed on unpaid sick leave as of November 16, 1994.

19. On November 18 and 19, 1994, Staats was seen by Dr. Snyder, a psychiatrist at Memorial Medical Center in Ashland, for evaluation for discharge from the North Central Health Care Facility. Dr. Snyder found that Staats was stable and could be discharged from the hospital. Staats apparently received a "Physicians Orders" statement authorizing his discharge from the hospital on November 19, 1994.

20. On November 21, 1994, Staats attempted to return to work. He met with Kinney and Mayberry from Sawyer County and was informed that the document he had with him (apparently Dr. Snyder's statement) was not sufficient certification that he was able to resume his duties.

21. On November 23 and 30, 1994, Staats was seen by Dr. James Lean in Washburn, Wisconsin, for a psychiatric evaluation after which Dr. Lean prepared a report. Under the topic heading, History of Present Illness, Dr. Lean's report states that "The patient states that his symptoms were manifested as total exhaustion, associated with hyperactive work habits of 15 to 16 hours per day, sleeping only two to three hours per night." Dr. Lean also refers to documents furnished him from Bayfield County Social Services which "indicate significant lapses in judgment including inappropriate sense of humor, purchasing of five cars in a one-month span, disorientation and psychomotor retardation, failures of personal hygiene, disinhibited interactions with co-workers and superiors, failure to perform ADL's (activities of daily living), alcohol abuse and economic misjudgments."

Under Past Psychiatric History, it is stated that "In 1966, the patient was hospitalized at Lutheran Hospital in La Crosse, Wisconsin for reasons of being `overworked and upset.' The patient was diagnosed with Bipolar Disorder in 1970, related to overworking, overspending and undersleeping. In 1972, he started Lithium after a hospitalization at Saint Francis Hospital in La Crosse, Wisconsin. In 1984, the patient was hospitalized in Green Bay, Wisconsin, for being `overworked and wiped out.' In 1986, he was hospitalized at Saint Francis for the same. In 1991, he was hospitalized at Lutheran Hospital in La Crosse for the same. Since this hospitalization, he states that he had been stable, followed at Lutheran Hospital on Lithium and Wellbutrin, until two months ago."

Under Chemical Use History, Dr. Lean states "The patient states that his ex-wife had thought he had a problem with alcohol abuse, though he disputes her claim. He did have an OWI in 1986. He saw a social worker for this and states that a plan was made that he would hold his alcohol to no more than three drinks on an occasion or a total of six drinks in a day. He states that he has done this effectively since 1986."

Under Mental Status Exam, Dr. Lean comments that "The patient's exam was most notable for the fact that he seemed to be very minimizing and offering very poor insight into the behaviors which he exhibited during his recent manic episodes....He offers no evidence of present dangerousness."

Under Narrative, Dr. Lean commented that "This is a gentleman with a long history of Bipolar Disorder, who performs in a highly functional manner when in euthymic state, but presently has little insight into his manic behaviors. This lack of insight brings concern for future medication compliance and the importance of maintaining appropriate time-management and sleep hygiene."

22. In a letter to Attorney Weld dated December 2, 1994, Dr. Lean authorized Staats to return to work with restrictions including: "working no more than 40 hours per week, taking no work home to complete after hours, attending regular therapy sessions with psychiatrists, in compliant with his medication, monthly laboratory testing of medication blood level and abstinence from alcohol for the next 90 days."

23. Attorney Weld responded to Dr. Lean's letter authorizing Staats to return to work by letter dated the following day. After first notifying Dr. Lean that Staats had been placed in an "in-pay status" pursuant to Lean's letter, Weld stated that the conditions that had been imposed on Staats' employment had created some concern as to whether Staats had recovered sufficiently to return to work and that the counties wanted to ensure that work pressures do not trigger another incident of inexplicable behavior. Weld also stated that the counties would like to discuss how the conditions imposed could be implemented.

24. Dr. Lean responded by letter dated December 6, 1994, stating that the conditions he outlined were subject to monitoring by him and the Bayfield County Department of Social Services, and that such conditions did not necessarily reflect that he was concerned with Staats' ability to adequately perform his work, rather they were conditions which he recommended to assure that Staats maintained his present level of functioning.

25. On December 13, 1994, Dr. Snyder completed a UC-474 Medical Report regarding Staats' ability to perform work as a personnel director in which he stated that Staats was able to perform this work as of November 20, 1994.

26. In a letter to Staats dated December 19, 1994, Weld informed Staats that the counties believed that the best course of action for all was for him to stay in an in pay status until the end of the year and focus his efforts on working with Dr. Lean to complete his recovery. Weld informed Staats that this was being done because: (1) the counties questioned whether any meaningful work could be performed in light of his extended absence from the position and the planned cessation of the Joint Agreement and position effective January 1, 1995; (2) other than Dr. Lean's response, the counties had not yet received information from the physicians who were treating him during his absence; (3) Dr. Lean had noted that he had poor insight into his behavior and had minimized the situation, and there was a concern as to whether he would comply with the conditions imposed by Dr. Lean and how his compliance with Dr. Lean's conditions could be monitored; and (4) because the counties questioned whether the essential functions of the position could be performed under the conditions imposed by Dr. Lean.

27. Sawyer and Bayfield Counties eliminated Staats' position because of his handicap.

28. Staats' handicap was reasonably related to his ability to adequately undertake the job-related responsibilities of the position of personnel director for the counties.

29. In view of Staats' medical restrictions of a 40-hour maximum work week and no taking work home, because there is an increased likelihood of a manic episode if a person is under stress and because the position of personnel director is inherently time consuming and stressful, accommodation of Staats' handicap by the counties would have posed a hardship on the counties' operation.

Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:

CONCLUSIONS OF LAW

1. Sawyer and Bayfield Counties are employers within the meaning of the Wisconsin Fair Employment Act.

2. Edward Staats is handicapped within the meaning of the Wisconsin Fair Employment Act.

3. Sawyer and Bayfield Counties eliminated Edward Staats' position because of his handicap but did not discriminate against Staats in violation of the Wisconsin Fair Employment Act because his handicap is reasonably related to his ability to adequately undertake the job-related responsibilities of his employment and because accommodation of Staats' handicap by the counties would pose a hardship on the counties' operation.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the Labor and Industry Review Commission issues the following:

DECISION

The administrative law judge's decision that the respondents discriminated against the complainant in violation of the Wisconsin Fair Employment Act is reversed and Edward Staats' complaint in this matter is dismissed.

Dated and mailed: October 27, 1997
staated.rrr : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

In a handicap discrimination case arising under the Wisconsin Fair Employment Act, the complainant has the initial burden of proving that he is handicapped within the meaning of the Act, and that an employer's discrimination was on the basis of such handicap. Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 598, 476 N.W.2d 707 (Ct. App. 1991). American Motors Corp. v. LIRC, 119 Wis. 2d 706, 709-710, 350 N.W.2d 120 (1984); Boynton Cab Co. v. ILHR Dept., 96 Wis. 2d 396, 406, 291 N.W.2d 850 (1980).

There is no dispute that Staats' bi-polar disorder constitutes a handicap under the Act.

There is, however, some dispute as to whether or not the counties discriminated against Staats because of his handicap. First, the counties have argued that it was not until Staats was involuntarily committed for a four-week period in late October/early November 1994, after the counties had eliminated the personnel director's position, that they became aware that he was being treated for bi-polar disorder. The counties argue that they had no idea what was causing Staats' absences and that a review of Dr. Metzler's one paragraph October 6, 1994 letter stating that Staats had completed a 3-day hospitalization for observation and medical adjustment, was doing well now, but still needed a period of convalescence, did not impute the counties with knowledge of his bi-polar disorder.

But there are a number of factors which indicate that the counties either knew or should have known that Staats was handicapped by virtue of a mental impairment prior to their decision to eliminate the personnel director position. For example, Bayfield County Clerk, Thomas Gordon, who worked closely with Staats, testified that beginning sometime in August 1994, not only he but his whole staff started noticing "inconsistencies, arriving late for work, going home early, unshaveness" about Staats, and that he realized that there was something happening in Staats' life and called to talk to him on several different times. Secondly, on September 27, 1994, Bayfield County Board Chairman Fred Janz called an emergency personnel committee meeting because of the problems it had been experiencing with Staats, during which Janz identified "substance abuse or mental illness" as possible explanations for Staats' behavior and requested authorization to meet with Sawyer County representatives to see what could be done. Thirdly, on October 6, 1994, when notified by Dr. Meltzer that Staats had been hospitalized "for observation and medication adjustment," Dr. Meltzer identified himself as belonging to the hospital's "Department of Behavioral Medicine." These factors provide reason to believe that the counties either knew or should have known that Staats was handicapped by virtue of a mental impairment at least by October 6, 1994.

Secondly, the counties have argued that in Staats' absence, they realized that they did not need a personnel director which prompted the Sawyer County Board, on October 20, 1994, to seek discontinuance of the Joint Personnel Agreement (which Bayfield County consented to on October 24, 1994), and they apparently further argue that tight budgetary concerns were a reason for elimination of the position. However, these arguments are not borne out by the evidence. The evidence shows that the counties continued to have need for a personnel director after Staats' employment because in Bayfield County, Thomas Gordon, along with County Board Chairman Fred Janz and Attorney Katherine Prine, has been performing the work Staats did while the personnel director, and in Sawyer County, Board Chairman Robert Kinney has been appointed acting personnel director and performs, along with other employes and county board members, the duties previously assigned to Staats. It also cannot go unnoticed that the Joint Personnel Director Agreement that the counties entered into required one party to notify the other of its intent to withdraw from the agreement no later than September 1 of the prior year in which termination of the personnel director position was sought, but neither party made any effort to comply with this notice requirement.

As for elimination of the personnel director position due to budgetary concerns, the record shows that in November 1994, both counties passed budgets for 1995 personnel functions above the 1994 funded levels for such functions when Staats worked as the personnel director. In fact, Bayfield County's line-item budget for 1995 specifically identifies funding for the position title "Personnel Director." Further, Sawyer County Board Chairman Robert Kinney testified when asked about Sawyer County's 1995 budget that "we decided to leave the money in there in the event that we could work out our problems and have the (personnel) unit function." In addition, testimony by Sawyer County Clerk, Kris Mayberry, indicates that the funds for the personnel department in 1995 were allocated with the idea of preserving a number of options, including again hiring a full-time personnel director. While the counties may have been operating under tight budgetary constraints, they still authorized funding for personnel functions for the 1995 fiscal year.

As noted by Staats, the only basis that the counties actually rely upon for terminating him is his behavior during the fall of 1994, and all of the evidence presented in this case by Drs. Lean, Snyder and Meltzer clearly indicate that his behavior during this time period was reflective of his mental illness, a bi-polar disorder. Furthermore, the approval of annual budgets by both counties for the fiscal year 1995, subsequent to the alleged decision to eliminate the personnel director and personnel department, clearly provides circumstantial evidence that the intent of the counties was to get rid of Staats and not the position.

Based upon all of the above, their is a fair amount of evidence from which to conclude that the counties discriminated against Staats because of his handicap.

Where the complainant has satisfied his initial burden of proving that he is handicapped and that the employer's discrimination was on the basis of such handicap, the burden shifts to the respondent to prove that the complainant's handicap is reasonably related to his ability to adequately undertake the job-related responsibilities of his employment. Racine Unified School Dist., 164 Wis. 2d at 598 (It must appear that the employer cannot justify its alleged discrimination under the exception set forth in sec. 111.34(2), Stats.). Further, assuming that the employer proves that the complainant's handicap is reasonably related to his ability to adequately undertake the job-related responsibilities of his job, "Section 111.34(1)(b) requires an employer to `reasonably accommodate an employe's...handicap unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.'" McMullen v. LIRC, 148 Wis. 2d 270, 274, 434 N.W.2d 830 (Ct. App. 1988).

There appears to be little question but that Staats bi-polar disorder is reasonably related to his ability to adequately undertake the job-related responsibilities of the position of personnel director. During the period beginning sometime in August 1994 until about November 19, 1994, Staats was suffering from a manic episode. When in a manic state he suffered from poor judgment, and at times he apparently became delusional and agitated. Needless to say, it also caused him to miss work during this period. As a result of his manic state Staats was unable to perform the duties of personnel director, which included giving advice to the counties' boards, personnel committees, department heads and employes, representing the counties in adversarial settings and being available when personnel problems arose.

The critical issue in this case thus centers on the question of whether or not the counties satisfied the Act's requirement that they reasonably accommodate Staats' handicap, or have established that accommodation of Staats' handicap would pose a hardship on its operation.

The ALJ concluded that "Sawyer and Bayfield discriminated against Staats, in violation of the Wisconsin Fair Employment Act when they eliminated his position, on January 1, 1995, because of his handicap." See conclusion of law no. 3. The ALJ stated at finding of fact 15 that "Neither Sawyer nor Bayfield attempted to determine what, if any, accommodation Staats might need to enable him to carry out all the functions of personnel director." Based upon two earlier findings made by the ALJ, he apparently concludes that it was because of the counties' October 1994 decision to eliminate the personnel director position that they had failed to attempt to accommodate Staats' handicap and therefore discriminated against Staats in violation of the Act. Two findings support this reading of the ALJ's decision. First, in finding number 8 the ALJ states that by the first week in October 1994, Sawyer and Bayfield had concluded that Staats suffered from either some form of mental illness or alcohol dependency. Secondly, in finding of fact 11 he found that on October 20, 1994, Sawyer County voted to eliminate the personnel director position (Bayfield County subsequently agreed on Oct. 24) effective January 1, 1995, based on Staats' recent behavior, excessive absenteeism and belief that they did not need a personnel director. Staats' behavior and absenteeism was reflective of his bi-polar disorder. Also, the evidence shows that the counties continued to have a need for a personnel director.

Before directly addressing the issue of accommodation, it should be noted that on appeal the counties reference finding of fact no. 11 and argue that if the ALJ is saying that because Staats' behavior and absenteeism are attributable to his bi-polar disorder the counties discriminated against him on the basis of handicap, he is not following appropriate case law. The counties have cited a number of cases for the proposition that where there is "workplace misconduct," even if the misconduct is a manifestation of the handicap, the employer is not barred from imposing discipline. For example, the counties cite Carrozza v. Howard County, 3 AD 197 Cases (1994) and Leatherwood v. Houston Post Company, 4 AD Cases 1091 (5th Cir. 1995). Those cases provide only minimal guidance with respect to Staats' claim here. Carrozza involved discrimination claims under the Rehabilitation Act of 1973, 29 U.S.C. 794, and the Americans With Disabilities Act (ADA), 42 U.S.C. 12111 et seq.   There, a clerk- typist with a bi-polar disorder had been discharged at least in part based on her work place conduct which included insubordinate behavior and outbursts directed at her supervisors. The court granted the defendant county's motion for summary judgment. As reason, the court noted that the question under the Rehabilitation Act was whether an adverse action was taken "solely by reason of the employee's handicap," and that the Rehabilitation Act did not bar termination or other disciplinary proceedings even though the plaintiff's work place behavior was caused by her bi-polar disorder. In contrast, under the Wisconsin Fair Employment Act (WFEA) even adverse action taken in part based on a prohibited basis constitutes a violation under the WFEA. Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994). Further, as noted in Bell-Merz v. UW-Whitewater, (Wis. Personnel Comm. 3/19/93), under the WFEA, adverse action by an employer because of conduct attributable to the handicap is in legal effect, because of the individual's handicap. Additionally, in Carrozza, there was an issue as to whether or not the employe could perform the essential functions of the job with a reasonable accommodation on the part of the employer. The court found that the employe's inability to come forward with evidence of a reasonable accommodation that would enable her to perform the job despite her handicap provided an independent ground for granting the employer's motion for summary judgment. Unlike Carrozza, Staats' physician (Dr. Lean) found that he could return to work under conditions which included working no more than 40 hours per week and not being required to take work home to complete after hours. Whether or not the conditions imposed by Dr. Lean would pose a hardship on the counties' operation will be discussed below.

Leatherwood involved a claim of disability discrimination under the Texas Commission on Human Rights Act. Leatherwood, a writer who worked for a newspaper, suffered from a bi-polar disorder. Leatherwood had been hospitalized periodically because of his disorder while employed by the newspaper between 1976 and 1989, and had been absent for four out of the last nine months immediately preceding his termination of employment which occurred in July 1989. Unlike Staats' claim under the WFEA, at the time of Leatherwood's claim, the Texas Commission Human Rights Act did not impose an accommodation requirement on employers.

The counties have also cited Brummond v. UW-Madison, (Wis. Personnel Comm., 4/1/87), for the proposition that work place misconduct, even if a manifestation of a handicap, is a basis for discharge. Actually, the Personnel Commission held that there was no discrimination in that case because Brummond's handicap was reasonably related to his ability to adequately undertake his job related responsibilities and because the respondent had made an effort, which was unsuccessful, to accommodate his handicap.

Turning to the issue of accommodation, the counties have argued that they did reasonably accommodate Staats' handicap by paying Staats as if he was working for all but two weeks of his 1994 absence, by attempting to determine what, if any, accommodations could be implemented after Staats' doctor's December 1994 medical clearance authorizing Staats to return to work and by offering him the opportunity to bump into the position of personnel assistant (held by Pamela Alexander). The difficulty with the counties' accommodation argument here, however, is that the record indicates that by October 6, 1994, the counties knew or had reason to believe that Staats was handicapped by virtue of a mental impairment and a mere two weeks later on October 20, 1994, a decision was made to terminate Staats' employment. Granted, Attorney Weld did inform Staats in a letter addressed to him dated October 8, 1994, that he was being placed on sick leave while undergoing treatment and request authorization to contact Staats' physicians to determine if he could return to work and what accommodations were appropriate. However, considering Staats' mental condition at the time and the fact that a decision had been made to terminate Staats' employment just 12 days after that letter, it hardly seems that this satisfied the counties' duty to reasonably accommodate Staats' handicap. The counties made the decision to terminate Staats' employment before learning what, if any, accommodation Staats might need to enable him to carry out the functions of personnel director.

This does not end the inquiry with respect to accommodation of Staats' handicap, however. In Charles v. Milwaukee Board of School Directors, (LIRC, 6/23/93), the commission held that where an employer failed to consider at the time a job applicant was rejected whether the job applicant's handicap could be accommodated, the employer may still avoid a finding of handicap discrimination if it can demonstrate at the hearing that it could not accommodate the applicant's handicap without an undue hardship. Similarly, in Keller v. UW-Milwaukee, (Wis. Personnel Comm., 3/19/93), the Personnel Commission also held that "Evidence which postdates the personnel transaction in question, including such things as medical evaluations, and which may have no relevance to the issue of the employer's intent at the time of the transaction, may have some relevance to issues such as the employe's capacity to perform and accommodation."

As noted above, due to its cyclical nature, individuals with bi-polar disorder will suffer a relapse. The disorder does not resolve and go away. The hope is that mood stabilizers can prevent the cycle from being repeated as quickly. If a person has treatment, is cooperative and has insight into the disorder, the likelihood of relapse decreases. There is an increased likelihood of a manic episode if a person is under stress.

Dr. Lean's authorization for Staats' return to work included "working no more than 40 hours per week, taking no work home to complete after hours, attending regular therapy sessions with psychiatrists, in compliant with his medication, monthly laboratory testing of medication blood level and abstinence from alcohol for the next 90 days." Dr. Lean in conjunction with the Bayfield county Department of Social Services was to be responsible for monitoring the conditions imposed on Staats.

The evidence on the issue of whether or not Staats' handicap can be reasonably accommodated is conflicting.

The counties have argued, based on the hearing evidence, that accommodation of Staats' handicap is not feasible, as the required accommodation would be unreasonable and/or would impose a hardship on the counties.

For example, citing Gee v. ASAA, (LIRC, 1/15/93) (Employer must prove to a reasonable probability that an employe's handicap will cause him to fail to meet attendance standards in the future), the counties argue that Staats has acknowledged that he cannot meet the personnel director's job duties if absent for extended periods of time, and that the uncontroverted evidence is that Staats will suffer relapses in the future that are certain to cause him to be absent from work and unable to perform his job as personnel director in the future. The counties reference Dr. Snyder's testimony that Staats will suffer future relapses.

A review of Dr. Snyder's testimony also shows, however, that while Dr. Snyder could state that an episode would occur again, Dr. Snyder could not tell how severe it would be nor how long it would affect Staats' ability to perform his job. Dr. Snyder testified that if Staats seeks treatment and does so quickly the length of time that it would affect his performance would be lessened, but still no one knows how long an episode will last once it starts.

Dr. Snyder further testified that insight was critical to recovering into stabilization; that if the person has insight he sees that he has a problem, cooperates and gets better, but if a person denies that he has a problem he does not cooperate with treatment. Dr. Snyder testified that in his opinion Staats was suffering from denial because when interviewed Staats did not come forth with the recognition of his disorder. Dr. Snyder testified that where a patient resists or quits treatment, this will increase the duration of the manic or depressive episode, and require a more serious intervention medically. Dr. Lean's report following his psychiatric evaluation of Staats on November 23 and 30, 1994, also noted concerns about Staats' lack of insight. Dr. Lean's report states that presently Staats had little insight into his manic behaviors and that "(t)his lack of insight brings concern for future medication compliance and the importance of maintaining appropriate time-management and sleep hygiene."

Additionally, Dr. Snyder testified that there was an increased likelihood of a manic episode if a person is under stress. He also testified that utilization of alcohol was very disruptive, that Staats would suffer from mania and depression with increased regularity should he continue using alcohol.

On the other hand, both Drs. Lean and Snyder also authorized/certified that Staats was able to return to work as a personnel director in December 1994. Further, in order to insure that Staats maintained his level of functioning, Dr. Lean had imposed a number of conditions for his return to work which included working no more than 40 hours per week, not taking work home, attending regular therapy sessions with psychiatrists, being compliant with his medication, monthly laboratory testing of medication blood level and abstinence from alcohol for 90 days. The conditions imposed were subject to monitoring by Dr. Lean.

The evidence indicates that as of the December 6, 1995 hearing in this matter, Dr. Lean was continuing to monitor Staats' condition although Staats was to be transferred to a different physician in the near future. With respect to use of alcohol, Staats testified that he agreed with Dr. Lean's request to abstain from alcohol for 90 days and did not have a problem. Further, Staats testified at the December 6 hearing that he had not been intoxicated during the last 9 months, that he very, very seldom used alcohol, and that on any one single occasion had not had more than one alcoholic beverage.

Another argument made by the counties is that Staats had not properly monitored his bi-polar disorder and therefore should be estopped from claiming that he was discriminated against because of his handicap. In support of this argument, the counties cite Siefken v. Village of Arlington Heights, 65 F.3d 664 (7th Cir. 1995). In that case, Siefken, a police officer with diabetes, failed to monitor his condition which resulted in his driving his squad car erratically at high speeds through residential areas and caused his discharge. The court held that because diabetes was a controllable disability and Siefken had failed to monitor his diabetes, he could not now claim that the village must pay for his disability. As noted by Staats, however, diabetes can hardly be compared with mental illness. As support, Staats points to Dr. Snyder's testimony that due to the nature of the disorder he will suffer relapses, as the disorder does not resolve and go away although it can be treated and managed if the person has treatment in place and is cooperative. Further, Staats notes Dr. Snyder's testimony that part of the whole bi-polar disorder ideology is that the person not only has a difficult time understanding their medical condition but also the ramification of what happens if they stopped taking their medication.

What appears to be the strongest evidence in favor of the counties' contention that they could not reasonably accommodate Staats' handicap, and the reason the commission has ultimately concluded that the counties did not discriminate against Staats in violation of the Fair Employment Act, is their argument that a personnel director's position is a job which is inherently time consuming and stressful, and which cannot be modified to eliminate the stress or the requirement of evening work. Staats has argued that there is no evidence in the record to support this contention, that the record does not indicate that the job required either take-home work or more than 40 hours of work per week, or that there was "abnormal stress" associated with the personnel director position. Further, he argues that there was no testimony by Drs. Lean or Snyder that directly links job stress with the triggering of the onset of manifestations of Staats' bi- polar disorder.

Contrary to argument by Staats, Pamela Alexander, Staats' former assistant, testified that regular working hours were 8 to 4, but Staats put in a lot of overtime, working on evenings and weekends. Further, Staats himself testified that he worked over 40 hours per week "many times" because there was a lot of work that needed to be done. Staats went on to state that such work included developing a personnel policy manual, improving communications between unions and management, resolving several grievances that had been pending for many months and handling collective bargaining matters. Consistent with Staats' and Alexander's testimony about Staats' hours of work is Dr. Lean's psychiatric evaluation which shows that Staats had informed Dr. Lean that his work habits included working 15 to 16 hours per day. While Staats has asserted that there is nothing in the record which indicates there was "abnormal stress" associated with the personnel director position, the commission believes it can be safely assumed that there is a considerable amount of stress in this position, considering that Staats' responsibilities included handling grievances and negotiating collective bargaining agreements. And while no doctor gave testimony that directly linked job stress with the triggering of the onset of Staats' bi-polar disorder, Dr. Snyder did testify that there is an increased likelihood of a manic episode if a person is under stress. Given the fact that Staats will suffer a relapse, due to the cyclical nature of his bi-polar disorder, it would seem inappropriate that he be placed in a position that is itself inherently stressful.

In view of Staats' 40-hour maximum work week and no work at home limitations and because it is evident that the position of personnel director is inherently time consuming and stressful, it is not apparent what reasonable accommodation(s) the counties could have made in the personnel director position which would have enabled Staats to work only 40 hours per week and to eliminate stress from this job. If indeed the job required as much work as indicated by Staats and Alexander, perhaps the "accommodation" Staats needed was for the counties to hire additional personnel. This most likely would have gone a long way towards reducing stress and the number of hours that Staats needed to work. However, this accommodation would also have resulted in substantially increased financial expenses for the counties. Considering the budget constraints that the counties were operating under, it does not appear that this form of accommodation was reasonable as it would have posed a hardship on counties. Examining the job duties described for the position of personnel director, it is not clear what other accommodation the counties could have made in order to limit the stresses of the job and Staats' number of hours worked per week to only 40 with no evening work. It would appear that as far as the existence of these concerns, no reasonable accommodation was available that would enable Staats to perform the job of personnel director despite his handicap. The commission also notes that Staats has not presented evidence of any reasonable accommodation that the counties could have provided that would have allowed him to perform the job of personnel director by working only 40 hours per week and that eliminated the stress inherently associated with this position.

Accordingly, the commission finds that Sawyer and Bayfield Counties did not unlawfully discriminate against Edward Staats in violation of the Wisconsin Fair Employment Act.

NOTE: The commission did not consult with the administrative law judge regarding witness credibility as it considers its decision in this matter to have been based on a matter of law.

cc:
William C. Steward, Jr.
Stephen L. Weld


Appealed to Circuit Court. Affirmed August 21, 1998.

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Footnotes:

(1)( Back ) The record in this case consists of the hearing transcript and exhibits involving complainant Staats' claim under the Family and Medical Leave Act (FMLA) (ERD Case No. 199500389; 3/30/95 hearing), as well as the hearing record (12/6/95 transcript and exhibits) from the instant handicap discrimination claim under the Fair Employment Act.