DAWN A SCHULTZ, Complainant
CNH CAPITAL CORPORATION, Respondent
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 conclusions in that decision as its own, except that it makes the following modifications:
The FINDINGS OF FACT and MEMORANDUM OPINION are deleted and the following substituted, to reflect the evidence of record and the commission's decision rationale:
1. In 1995, the complainant began working full time for the respondent in collections processing.
2. In 2000, the complainant was diagnosed with panic disorder by her primary physician Dr. Shaikh. Dr. Shaikh prescribed the drugs Paxil and Ativan (Lorazepam) for treatment of this disorder.
3. During 2001, Dr. Shaikh referred complainant to Dr. Sharma, a psychiatrist, for treatment of her panic disorder.
4. The complainant's first visit to Dr. Sharma took place on August 6, 2001. During this visit, complainant reported symptoms of lightheadedness; rapid pulse; excessive sweating; tightness in her temples, jaw, and throat; difficulty breathing; muscle spasms; numbness in her face, legs, and arms; double vision; difficulty falling asleep and staying asleep; and tiredness and weakness. Based on the symptoms reported by the complainant, Dr. Sharma diagnosed her condition as panic disorder, which is considered a major psychosis. Dr. Sharma rated the level of her disorder as "moderate" on a scale on which the only lesser rating is "mild." The "mild" rating is used if no symptoms are reported. During this visit, Dr. Sharma switched the complainant from Paxil to Zoloft, and from Lorazepam to Klonopin. Dr. Sharma noted that the complainant's memory was good.
5. At no time relevant here did Dr. Sharma or any of the complainant's other treating physicians diagnose her condition as depression or major depression.
6. The complainant's next visit to Dr. Sharma took place on September 25, 2001. The complainant reported that there had been no improvement in her symptoms. As a result, Dr. Sharma switched her from Klonopin to Xanax. Dr. Sharma noted that the complainant reported sleeping six hours a night, and had normal concentration and memory.
7. The complainant's next visit to Dr. Sharma took place on October 15, 2001. The complainant reported that she could not function while taking the Xanax, that she "could not even stand up." Dr. Sharma concluded that the Xanax was causing excessive daytime sedation. As a result, he took complainant off Xanax, increased her dosage of Zoloft because she reported that she was still experiencing panic attacks, and put her back on Lorazepam. Dr. Sharma noted that the complainant reported normal sleep, and had good memory.
8. The complainant's next visit to Dr. Sharma took place on November 15, 2001. She reported symptoms of nervousness; shaking; tightness in her throat, jaw, and temple; a racing heart; and blurred vision; but indicated that her symptoms in general had decreased in intensity. Dr. Sharma noted that the complainant reported sleeping five to six hours a night, and had good memory.
9. The complainant's next visit to Dr. Sharma took place on December 17, 2001. The complainant reported feeling calmer, but that she had been experiencing restless legs and muscle spasms. As a result, Dr. Sharma decreased the dosage of Zoloft. Dr. Sharma noted that the complainant reported normal sleep, and had good memory.
10. From January through some time in June of 2002, the complainant was a Retail Financial Associate assigned to the Administrative Services Unit (ASU), where Darcy Pylkas was her immediate supervisor. Pylkas's supervisor during this period of time was Trisha Valadez.
11. During the first three months of 2002, the complainant called in sick on two occasions.
12. According to the complainant, between January and April of 2002, the difficulties she experienced waking up because of her medications made her 15 minutes to one-half hour late for work.
13. After December of 2001, the complainant's next visit to Dr. Sharma took place on February 19, 2002. The complainant reported that she had experienced a panic attack while shopping at a K-Mart. Dr. Sharma did not change the complainant's prescribed medications at this visit. Dr. Sharma noted that the complainant reported normal sleep and had good memory.
14. The complainant called in sick to work on April 3, 4, and 8, 2002. The complainant did not communicate to respondent the nature of her illness on these days.
15. Pylkas noted in the record she kept of the complainant's attendance that, around this period of time, it was reported to her by Janice Walker, one of the complainant's co-workers, that the complainant had told Walker that part of her problem was that she stayed up late at night in chat rooms and had a hard time getting up in the morning as a result.
16. Complainant was late for work on April 9, 2002. As a result, she was required to meet with Bill Christensen, the head of the Collections Department, and Pylkas. The complainant stated during this meeting that the medications she had been prescribed for anxiety attacks were causing her to oversleep in the morning. At this meeting, Christensen and Pylkas raised a concern with the complainant that her productivity had decreased significantly. The complainant did not dispute this or offer an explanation for her declining productivity. Christensen and Pylkas told the complainant at this meeting that she needed to get to work on time and that further attendance failures could lead to her termination, advised her to consult with her physician regarding the problems she was having with her medications, and referred her to respondent's employee assistance program because she had indicated that she was experiencing a great deal of stress in her personal life.
17. The complainant was late for work on April 10, 2002. The complainant did not offer an explanation for her tardiness. On this date, Pylkas noted in the record she kept of the complainant's attendance that Lori Kinnard, one of the complainant's co-workers, had reported to Pylkas that complainant spent an inordinate amount of work time messaging her online friends, and that there was growing resentment against the complainant in the ASU because other employees were regularly called upon to perform her duties.
18. On April 10, 2002, Pylkas emailed Jean Ayers of the respondent's human resources department to ask permission to require the complainant to email Pylkas when she arrived and when she left work each day.
19. On April 10, 2002, Pylkas watched the complainant for ten minutes from a location where Pylkas could not be observed by the complainant, and noted that the complainant performed no work activities during this time period.
20. After February 19, 2002, the complainant's next visit to Dr. Sharma took place on April 10, 2002. Complainant reported nervousness; constant shaking; tightness in her jaw and temple; daily headaches; blurred vision; shortness of breath; lightheadedness; and trouble falling asleep. Dr. Sharma prescribed that complainant begin taking Valium. Dr. Sharma noted that the complainant's memory was good.
21. In Dr. Sharma's opinion, the impact on the complainant of the symptoms she was reporting in April of 2002 would have been difficulty waking and difficulty concentrating. Dr. Sharma did not express an opinion as to the frequency or degree of such difficulties.
22. The complainant called in sick on April 11, 2002. She reported to Pylkas and Valadez that she was shaking, had seen a physician the day before, and her medications had been changed.
23. The complainant was tardy on April 12, 2002. She reported to Pylkas that she was shaky and had a headache.
24. The complainant was tardy on April 19, 2002, because she was mistaken as to her start time. Valadez stayed at work late that day so that the complainant could make up the time she was tardy.
25. Pylkas and Valadez met with the complainant on April 19, 2002, to discuss what they characterized as her "tardiness, excessive personal calls, and dramatic decrease in performance." During this meeting, the complainant stated that she was under a lot of stress in her personal life, work was not a priority for her, and she did not care if she got fired. The complainant became very emotional during this meeting, and, as a result, was permitted to take the rest of the day off.
26. On or around April 19, 2002, the complainant's grandfather passed away. The complainant took the maximum bereavement leave of three days (April 22-24), and three additional days of vacation (April 25, 26, 29). When she requested this leave, the complainant told Pylkas that she would be "back to her old self" when she returned to work.
27. On May 6, 2002, the complainant was late for work. She phoned Pylkas at 8:29 a.m. to report that she had overslept, and arrived at work at 9:40 a.m. The complainant apologized for being late and reported that she had experienced two panic attacks over the weekend, and had upcoming appointments with a counselor and a "medical psych." Valadez stayed at work late that day so the complainant could make up the time she was tardy.
28. On May 8, 2002, the complainant and a co-worker engaged in a dispute. Valadez met with them and, when she suggested that the two employees discuss their differences at this meeting, the complainant refused.
29. On May 9, 2002, the complainant was late for work. The complainant did not offer an explanation for her tardiness.
30. On May 9, 2002, Valadez met again with the complainant and the co-worker with whom she had the dispute on May 8. During this meeting, when Valadez asked the two employees to promise to be professional in their future dealings with each other, the complainant refused, explaining that she evaluated her feelings on a day-to-day basis and couldn't know what she would be feeling until each day arrived, and that, if she felt like she had to "kiss up," she would sooner leave her job.
31. On May 10, 2002, the complainant took a day of vacation, explaining that she had an appointment with a counselor and a physician that day. The complainant was informed by Pylkas that, after this day of vacation, she had five vacation days remaining for the year.
32. After April 10, 2002, the complainant's next visit to Dr. Sharma took place on May 10, 2002. She reported that she was "80% better," had improved sleep, and had experienced no panic attacks since her last visit. Dr. Sharma reported that the complainant's memory was good.
33. The complainant was late for work on May 13, 2002. The complainant did not offer an explanation for her tardiness.
34. On or before May 15, 2002, a proposal was presented to Valadez that, for the summer, the hours of work for the ASU be changed from 8:00 a.m.-4:30 p.m. to 7:30 a.m.-4:00 p.m. Valadez sought input from ASU staff regarding this proposal. In a May 15, 2002, email to Valadez and Pylkas, the complainant stated that, "I will try my very best to be here...but the Valium does sometimes mess up my wake time, and of course as always, I will make up any time if I am late. Basically...I'm just asking for some readjustment time and understanding if the hours do change."
35. The complainant's reference to Valium in this email was the first indication to Valadez that complainant's anxiety was due to a medical condition rather than to stressors in her personal life.
36. On May 20, 2002, the complainant left work at 9:00 or 9:30 a.m., reporting that she was sick but providing no further details.
37. The complainant called in sick to work on May 21, 2002. The complainant did not explain the nature of her illness to the respondent.
38. In a May 21, 2002, email to Ayers, Valadez stated as follows:
I need to take some type of action in regard to Dawn. I would like to put her on PIP [performance improvement plan] for attendance but I'm not sure if I'm permitted to ask her medical documentation verifying she is on valium which causes her to be late or not so up at all.
Since Jan. 02 she has been absent 8 times. Her calling in today makes for the 6th occurrence, not to mention the numerous times she has been late.
Jean, I continue to have some real concerns as to the stability of Dawn's demeanor in regard to her verbal reactions with her peers. This has me more concerned that her attendance at this point.
If you are not available to discuss, may I meet with Luann or Carolyn?
The changes in demeanor to which Valadez was referring in this email were lack of attention to work duties, declining productivity, and sleeping at work. Valadez did not get a reply to this email from Ayers. Valadez did not pursue the inquiry further because she learned that complainant was to be transferred to another department.
39. The complainant phoned Dr. Sharma's office on May 21, 2002, reporting that she was feeling tired.
40. The complainant called in sick to work on June 3, 2002. The complainant did not explain the nature of her illness.
41. Some time in June of 2002, the complainant transferred to respondent's Assets Management department. The complainant's immediate supervisor in this department was Mike Bergstrom, the Operations Manager. This was Bergstrom's first experience as a supervisor.
42. When the complainant's supervision transferred to Bergstrom, Pylkas and Valadez advised Bergstrom of complainant's problems with attendance and tardiness, but did not pass on to him or to the human resources department the information they had obtained relating to the complainant's medical condition or medications.
43. In June or July of 2002, based on the assessment by Pylkas and Valadez as to the complainant's attendance, attitude, and productivity during the previous twelve months, the respondent did not approve a merit pay increase for the complainant.
44. During Bergstrom's supervision of the complainant, he was aware that she attributed some of her tardiness to difficulty awakening because of the medications she was taking.
45. During Bergstrom's supervision of the complainant, he offered to phone her each morning to wake her so that she would be on time for work. The complainant declined this offer, explaining that she could not always hear the phone.
46. The complainant was late for work on June 18, 2002, arriving at 10:30 a.m. The complainant did not offer an explanation for her tardiness.
47. On June 21, 2002, the complainant took a half day of vacation.
48. After May 10, 2002, the complainant's next visit to Dr. Sharma took place on June 25, 2002. Complainant reported daily headaches so Dr. Sharma prescribed Neurontin. Dr. Sharma noted that the complainant reported normal sleep, and had good memory.
49. The complainant was two hours late for work on July 3, 2002. The complainant did not offer an explanation for her tardiness.
50. The complainant was two hours late for work on July 9, 2002. The complainant did not offer an explanation for her tardiness, but referred to it as a "little sleep in" in a July 10, 2002, email to Bergstrom.
51. The complainant was absent on July 11 and 12, 2002, because she had lost one of her contact lenses. Complainant obtained a note from her optician stating that she had been seen by him on July 12, 2002, and had not been able to see without her contact lens because she had a very high prescription. The complainant provided this note to the respondent. Bergstrom advised the complainant that she would have to take two days of vacation for this absence since she had so many previous absences in 2002.
52. Complainant's medical records on file with Dr. Sharma's office include a note, not prepared by Dr. Sharma, that complainant requested a copy of her medical file on July 29, 2002.
53. On August 4, 2002, the complainant fell asleep at work and left work early that day as a result.
54. On August 5, 2002, the complainant phoned Dr. Sharma's office and reported that she was very drowsy that day. As a result, Dr. Sharma decreased the dosage of Neurontin, and instructed the complainant to take this drug just at bedtime in order to minimize daytime drowsiness.
55. Complainant began seeing counselor Claudia Rohling, a certified social worker, on August 13, 2002. The complainant reported to Rohling that she had been experiencing panic attacks for the last two to three years, and had been treated for this condition by Dr. Shaikh and Dr. Sharma. The complainant reported to Rohling that she was experiencing two to three panic attacks each day, and that the medications she was taking were making her feel tired. Rohling shared with the complainant certain relaxation and breathing techniques and suggested she use these techniques to control her panic attacks. The complainant reported to Rohling that she had discontinued taking the Neurontin.
56. The complainant testified that, by July and August of 2002, the incidence of her panic attacks had decreased from two-three each day to one each day.
57. The complainant did not report to work on August 19, 2002, explaining that she had hurt her knee, was completely unable to walk, and was seeking medical treatment. The complainant provided a medical excuse stating that she had been treated on August 19 for left knee pain. The complainant returned to work on August 20, 2002, without any restrictions and without displaying any limitation on her ability to walk.
58. After June 25, 2002, the complainant's next visit to Dr. Sharma took place on August 26, 2002. During this visit, the complainant reported excessive daytime sedation, so Dr. Sharma discontinued the Neurontin as a result. Complainant reported experiencing headaches at least three days a week, shakiness, shortness of breath, and that she had been "late for work more than once because of oversleeping." This was the only mention of either her job or of oversleeping that complainant ever made to Dr. Sharma. Dr. Sharma recommended that the complainant consult with her primary physician to rule out sleep apnea as a cause of her daytime drowsiness. Dr. Sharma noted that the complainant's memory was good.
59. It would have taken three to five days for the sedation caused by Neurontin to cease.
60. The complainant discontinued treatment with Dr. Sharma after August 26, 2002.
61. During her treatment by Dr. Sharma, complainant never requested that he prepare a medical excuse for her to provide to the respondent.
62. During the time period relevant here, the complainant did not provide any medical documentation relating to her panic disorder to the respondent.
63. In Dr. Sharma's opinion, the complainant's oversleeping could have resulted from her panic disorder if this disorder, or the medications prescribed to treat it, were the cause of the trouble she was experiencing falling asleep and staying asleep. In Dr. Sharma's experience, many patients with panic disorder have sleep disturbances, these sleep disturbances can usually be controlled with medications, and he had no reason to believe, other than the fact that her illness was becoming chronic, that this type of treatment would not work for the complainant. Sedation, including difficulty awakening, may be a side effect of any of the medications Dr. Sharma prescribed for complainant.
64. Due to his unfamiliarity with the complainant's job responsibilities, Dr. Sharma was unable to express an opinion as to the effect her panic disorder would have on her ability to do her job.
65. According to the complainant, when she experienced a panic attack, it would take five minutes out of her work day to get it under control, but it did not interfere with the quality or quantity of her work.
66. The complainant had a counseling session with Rohling on August 27, 2002. She reported that, when she had felt lightheaded, which was a signal that she was about to experience a panic attack, she had been able to prevent the attack by getting up and walking around. The complainant reported to Rohling that she had requested and received permission from her supervisor to get up and walk around as necessary. The complainant also reported to Rohling at this visit that she had only experienced this lightheaded feeling 5-8 times since her last visit, which Rohling regarded as a significant improvement.
67. On August 28, 2002, respondent announced that the complainant had applied for and been selected for a Customer Account Management (CAM) position in the Northern American Parts department effective September 9, 2002. This was a promotion.
68. The evening of Thursday, August 29, 2002, the complainant received a call that her grandmother was ill. The complainant left immediately with a friend, using the friend's truck, to travel to Arkansas to pick up her mother.
69. On Friday morning, August 30, 2002, the complainant, who was aware that Bergstrom would not be at work that day, phoned co-worker Carol Brown, and asked Brown to put a note on the complainant's computer that she would be absent from work that day. At that time, Brown did not work in the same unit as the complainant. Even though the complainant had not asked that she do so, Brown notified manager Bernie Bernhardt that the complainant would be absent that day.
70. Monday, September 2, 2002, was Labor Day and respondent was closed for the holiday.
71. On Tuesday, September 3, 2002, the complainant left a voice mail message for Bergstrom stating that she was traveling back from Arkansas and would be at work as soon as possible. Bergstrom returned this call around 9:00 a.m.. At that time, the complainant indicated that the vehicle she was traveling in had sustained a flat tire in Illinois and they were waiting for the state patrol. When Bergstrom asked the complainant whether she would be at work that day, she said she would not because she was too tired from driving. When Bergstrom asked the complainant whether she would be at work the following day, she indicated she would.
72. An Illinois State Patrol officer responded at or before 10:30 a.m. The officer summoned roadside assistance, which finished replacing the flat tire with a spare tire at 11:45 a.m.
73. Roadside assistance advised the complainant and her friend that the other tires on the car were also in bad shape. As a result of that advice, the complainant and her friend traveled two exits down the highway to a tire retailer and had all four tires replaced.
74. The commission takes administrative notice that the location in Illinois at which the flat tire was sustained was not in "southern Illinois" as the complainant represented, and was approximately a 2.5-hour drive from complainant's home.
75. When the complainant did not report to work on Wednesday, September 4, 2002, Bergstrom phoned her around 9:15 a.m.. When Bergstrom asked her why she was not at work, the complainant told him that she was too tired from staying up until 2:00 a.m. the night before. Bergstrom told her that was not a good excuse, directed her to come to work, and explained that her failure to do so would place her job in jeopardy. The complainant did not report for work or initiate further contact with the respondent on September 4.
76. After the complainant failed to report to work on September 4, 2002, Bergstrom contacted Luann Hageman, a senior director in respondent's human resources department, and asked her how he should handle the complainant's absences of August 30, September 3, and September 4, 2002.
77. Hageman, who was Ayers' supervisor, was not aware during the complainant's tenure with respondent, that the complainant suffered from panic attacks and was taking medication for this condition, suffered from any other medical condition, or experienced sleep difficulties. During this period of time, Hageman did not receive copies of notes from Pylkas or Valadez relating to the complainant's medical condition or attendance, or any medical documentation relating to the complainant's medical condition.
78. Since Hageman was going to be out of the office on September 5, 2002, she asked Ayers to handle the matter relating to the complainant's absences of August 30, September 3, and September 4, 2002. Hageman provided a memo to Ayers summarizing the facts as she understood them from Bergstrom, and directing Ayers to ask the complainant to respond to this characterization of the facts, and, if the complainant failed to provide a legitimate excuse for her actions on these three days, to terminate her employment effective August 29, 2002. Hageman's characterization of the facts of this memo was accurate except that, because Bergstrom had not been aware, prior to September 5, that the complainant had called a co-worker on August 30, this fact was not included.
79. Ayers and Bergstrom met with the complainant on September 5, 2002, to discuss her absences of August 30, September 3, and September 4, 2002. Ayers, not Bergstrom, conducted this meeting.
80. At the September 5, 2002, meeting, the complainant explained that she had called a co-worker instead of a manager on August 30, and admitted that she had "messed up" by doing so. The complainant explained at this meeting that she had traveled out of town on August 30, 2002, after being advised that her grandmother, who lived in Arkansas, was ill.
81. At the September 5, 2002, meeting, the complainant, even though she had an opportunity to do so, did not explain what she had meant when she had admittedly told Bergstrom on September 4, 2002, that she was too tired to come into work that day because she had been up late the night before.
82. During the September 5, 2002, meeting, the complainant did not indicate that she suffered from panic disorder or was taking medications for the treatment of this disorder, or that any medical condition or any medications were responsible for her absences, or affected her ability to contact management, on August 30, September 3, or September 4, 2002.
83. At the end of the September 5, 2002, meeting, after she had been notified that she was terminated, the complainant stated, "Yes, I can start my new life now."
84. On September 5, 2005, when she effectively made the decision that the complainant should be terminated, Ayers did not recall the April 10, 2002, email from Pylkas requesting permission to require the complainant to email her arrival and departure each day; did not recall the May 21, 2002, email she had received from Valadez referencing the complainant's use of Valium and its possible effect on her sleeping and waking; had not received copies of notes from Pylkas or Valadez or any other source relating to the complainant's medical condition or attendance; was not aware that the complainant had provided any medical documentation relating to her panic disorder or medications; and did not understand that the complainant had been diagnosed with a panic disorder or any other medical condition, was taking medications, or had difficulty waking up.
85. Hageman signed off on Ayers' termination decision.
86. Respondent typically deals with intermittent attendance deficiencies through its progressive discipline process. This process calls for a verbal warning after the fourth occurrence, a written warning after the fifth occurrence, and termination after the sixth occurrence. An occurrence is defined as one or more consecutive days of absence.
87. The complainant had received a verbal warning but no written warning before she was terminated on September 5, 2005.
88. The respondent did not follow its progressive discipline policy in regard to complainant's termination by issuing a prior written warning, because her final three absences involved lack of proper notice, lack of prior approval, and insufficient justification and effort.
89. The respondent grants medical leaves of absence upon request of an employee, with medical verification of inability to work, and approval by the human resources department. During the time period relevant here, the complainant did not request a medical leave of absence.
90. During the time period relevant here, the complainant did not request leave pursuant to the state or federal Family and Medical Leave Act (FMLA).
91. Respondent consistently permitted the complainant to make up time she missed due to tardiness or medical appointments. Complainant was never denied permission to use leave to cover any of her absences.
92. The only accommodation requested by complainant was acceptance of her tardiness by respondent and permission to make up time she had been tardy.
93. Complainant's tardiness and absences resulted in delays in processing repossessions which had financial implications for the respondent.
94. As of August 29, 2002, prior to her final three days of absence, the complainant had no more than 2.5 days of accrued vacation time remaining in 2002.
The respondent has filed a motion to strike the complainant's reply brief to the commission or, in the alternative, to permit further argument. The bases offered by the respondent for this motion are the complainant's allegation that the respondent violated Wis. Stat. § 802.05 by misrepresenting the facts of record and/or advancing specious arguments, and the complainant's offer of arguments in its reply brief which it had not offered in its initial brief to the commission.
It should first be noted that the complainant states in her brief on the motion to strike that she did not intend to advance a motion for violation of Wis. Stat. § 802.05.
The commission further notes that both parties aggressively advanced their positions by characterizing the facts of record in a manner most favorable to those positions. The commission, recognizing this, conducted a thorough and independent review of the factual record, and its findings here are based upon that review.
Finally, both parties had ample notice, given the history of this matter, not only of the issues of fact and law before the commission, but, at least in general, of the positions on these issues to be advanced by the adverse party, and had full and fair opportunity to argue them. Further argument is not merited as a result.
At hearing, the administrative law judge (ALJ) withheld ruling on objections to certain exhibits (C8., C42. through C46.) and agreed to reconsider his rulings excluding parts of exhibit C27A, and permitted the parties to brief the issue of the admissibility of these exhibits in their post-hearing briefs.
However, although the parties did brief this issue, the ALJ did not rule on the admission of these exhibits in his decision.
Exhibit C8 is a letter prepared by Dr. Saikh relating to the complainant's history of medical treatment. This letter is not certified and Dr. Saikh did not testify at the hearing. As a result, exhibit C8 would properly be excluded from the record as uncorroborated hearsay if offered for the purpose of establishing this history. In addition, since the record does not show that this document was ever provided to or received by the respondent, the other possible bases for its admission would not attach. As a result, exhibit C8 is not received into the record.
Exhibit C27A is a collection of documents relating to the complainant's employment which were created or maintained by Pylkas. The complainant objected to that part of the exhibit in which Pylkas noted statements made by Christensen in the April 9, 2002, meeting at which Christensen, Pylkas, and the complainant were present. However, Pylkas was at this meeting, heard the statements made by Christensen, and testified that her notes accurately reflected those statements. This portion of Exhibit C27A was not offered for the truth of what Christensen was asserting but instead to show that he made these statements at this meeting. When offered for this purpose, this part of exhibit C27A does not constitute hearsay evidence and is properly admissible as a result.
The complainant also objected to that part of exhibit C27A in which Pylkas notes that Walker told her that the complainant had told Walker that part of her problem was that she stayed up late at night in chat rooms and had a hard time getting up in the morning as a result. However, again, this was not offered to show that the complainant had actually stated this to Walker or that the complainant was actually tired during the day because she stayed up late at night in chat rooms, but instead to show that Walker made this statement to Pylkas. When offered for this purpose, this part of exhibit C27A does not constitute hearsay evidence and is properly admissible as a result.
Exhibits C42 through C46 are documents generated through the discovery process. Since no discovery motion is before the commission, these exhibits are admitted solely for impeachment purposes.
Individual with a disability
The commission first notes that the issue here is one of probable cause.
The complainant's initial burden in a disability discrimination case is to establish that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The complainant failed to sustain this burden here.
The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one 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 WFEA 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 whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). 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); Jones v. United Stationers, Inc. ERD Case No. 199803598 (LIRC Jan. 25, 2001).
Competent medical evidence is required to establish the existence, nature, extent, and permanence of an impairment, if disputed as a matter of fact. Connecticut General Life Ins. Co. v. DILHR, 86 Wis.2d 393, 273 N.W.2d 206 (1979). See, also, Grell v. Bachmann Construction Co., Inc., ERD Case No. CR200202309 (LIRC July 15, 2005); Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003); Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC Sept. 16, 2004).
It is not enough to state a diagnosis or to list symptoms. The complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for her or limited her capacity to work. Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000). As a result, the fact that Dr. Sharma rendered a diagnosis of panic disorder would be insufficient alone to establish the existence of a disability. See, Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005) (diagnosis of diabetes alone insufficient to establish existence of disability).
Dr. Sharma opined that the symptoms complainant reported to him would have had two effects on her normal life functions, i.e., difficulty awakening and difficulty concentrating. Dr. Sharma did not express an opinion as to the frequency or degree of such difficulties.
Moreover, the record does not establish a definite link between the complainant's sleep problems and her panic disorder, or the medications prescribed by Dr. Sharma to treat this disorder. Although Dr. Sharma testified that sleep problems were a possible and common side effect of panic disorder and the medications prescribed to treat it, he did not testify that the medications he had prescribed for the complainant were responsible for her self-reported difficulties falling asleep, staying asleep, and awakening from sleep. In fact, on August 26, 2002, Dr. Sharma suggested to the complainant that she consult with her primary physician to determine whether such difficulties could in fact be due to sleep apnea.
In regard to her ability to concentrate, the complainant testified that, when she experienced a panic attack at work, it would take five minutes out of her work day to get it under control, but it did not interfere with the quality or quantity of her work. This type of limitation is not a substantial one.
In addition, the occasional absences and tardiness which the complainant reported as attributable to panic attacks or medication would not be sufficient alone to support a conclusion that her panic disorder imposed a substantial limitation on her capacity to work. See, Gramza v. Kwik Trip, Inc., ERD Case No. CR200004205 (LIRC Feb. 20, 2003).
The evidence of record is insufficient to establish that the complainant's claimed disability made achievement unusually difficult or limited her capacity to work within the meaning of Wis. Stat. § 111.32(8).
Finally in this regard, the complainant argues that the record supports a conclusion that the respondent perceived her to be disabled. However, the complainant's infrequent attribution of her absences/tardiness to her panic disorder or medications would tend to militate against such a conclusion. Moreover, the evidence of record tends to show that the respondent believed that the complainant's ability to arrive at work regularly and on time was generally within her control and her failure to do so was primarily attributable to stressors in her personal life, including the illness and death of her grandfather; to her stated indifference about her job; and to factors such as her reported practice of staying up late visiting in chat rooms. In addition, the fact that management was aware that the complainant was seeing a psychiatrist and taking prescription medications does not establish that respondent necessarily or reasonably would have perceived complainant to be disabled. Medical treatment is sought, and medications prescribed, for conditions which are disabling as well as for conditions which are not. See, e.g., Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Moller, supra.; Lester v. Compass Group USA, ERD Case No. CR200203879 (LIRC March 22, 2005). Moreover, the fact that the complainant never presented any medical restrictions to the respondent based upon her panic disorder further militates against a conclusion that she was perceived to be disabled. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004). Finally, it should be noted that, in regard to the termination issue, the record establishes that neither of the decision-makers, i.e., Hageman or Ayers, was aware that the complainant had been diagnosed with panic disorder, was under the care of a psychiatrist, had been prescribed medications by this psychiatrist for her panic disorder, or had on occasion attributed her tardiness and absences to her panic disorder. (1) As a result, neither Hageman nor Ayers would have had any reason to perceive the complainant to be disabled.
The complainant has failed to sustain her burden to prove that she qualifies as an individual with a disability within the meaning of Wis. Stat. § 111.32(8).
Even if the complainant had succeeded in establishing that she was an individual with a disability within the meaning of the WFEA, she failed to show that she was discriminated against on this basis.
It is the complainant's burden to prove that she was terminated because she was disabled. Target Stores, supra.; Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). This burden can be sustained through a showing of disparate treatment or a showing, under the circumstances present here, that the absences which formed the basis for the termination were caused by her claimed disability.
Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:
McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).
To establish a prima facie case of a discriminatory discharge, the complainant must show that: (1) she was a member of the protected group; (2) she was discharged; (3) she was qualified for the job, and (4) either she was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz, 126 Wis. 2d at 173.
The commission agrees with the complainant that the record supports a finding that her termination was attributable to her absences of August 30, September 3, and September 4, 2002, and not to any other reason. In particular, the record shows that, prior to August 30, 2002, the respondent was generally satisfied with the quality of the complainant's work performance and, in fact, had just approved a promotion for her; and was not sufficiently dissatisfied with her attendance record to have progressed to the second step of its progressive discipline process, to have placed her on a performance improvement plan, or to have taken other steps to remedy or to address her record of intermittent absences and tardiness.
Even though the complainant has failed to show that she was replaced by a non-disabled individual, or that other similarly situated non-disabled employees were treated more favorably than she, it will be assumed for purposes of analysis that the complainant succeeded in establishing a prima facie case of disability discrimination here. See, U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983)(the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken); Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).
The respondent has articulated a legitimate, nondiscriminatory reason for its termination of the complainant, i.e., she sustained three absences without proper notice or valid reason.
The burden would then shift to the complainant to demonstrate pretext.
The complainant argues, at least by implication, that the fact that the respondent did not follow its progressive discipline policy by issuing the complainant a written warning prior to termination demonstrates pretext. However, the record supports a conclusion that the lack of proper notice, the lack of prior approval, and the lack of sufficient justification for the complainant's final three absences reasonably justified the exercise of management discretion under its policy to proceed immediately to termination.
The complainant also argues, at least by implication, that respondent's stated failure to associate complainant's mention on September 4 of being too tired to come in to work with her panic disorder/medications demonstrates pretext. However, neither Bergstrom nor Ayers, the two respondent representatives present at the September 5 meeting, had any reason to believe that complainant's claimed disability would interfere with her ability to come to work once she was awake, or that she had not been awake when she had talked to Bergstrom that day. In addition, the complainant made no effort, despite the opportunity to do so in her conversation with Bergstrom on September 4 and in her meeting with Bergstrom and Ayers on September 5, to provide such an explanation for her failure to report to work, or to provide proper notice, on September 4, 2002. This circumstance does not demonstrate pretext.
The complainant has failed to establish that the legitimate, non-discriminatory reason offered by the respondent for her termination was a pretext for disability discrimination, and has, as a result, failed to prove disparate treatment on the basis of disability in regard to her termination.
The remaining issue then is whether the absences upon which the complainant's termination was based were caused by her claimed disability, i.e., panic disorder or the medications she was taking for treatment of this disorder.
The evidence of record shows that the complainant was absent on August 30 and September 3, 2002, for personal reasons unrelated to her panic disorder or medications. The evidence of record does not show that the complainant's panic disorder/medications was the cause of her failure to contact a management employee to provide notice of her absence on August 30, as she acknowledges she was required to do, or her failure to plan her trip back to Wisconsin in such a way that would assure her ability to report to work on time on September 3, a day for which she had not requested or received prior approval to take as a day of vacation.
The complainant also failed to prove through expert medical evidence that her absence of September 4 was caused by her panic disorder/medications. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App. 272, 240 Wis.2d 209, 621 N.W.2d 633 (Ct. App. 2000). The expert medical evidence of record does not establish that the medications the complainant was taking would have caused the excessive daytime sedation she claims impaired her ability to travel to work or to perform her work responsibilities on September 4, 2002. The complainant's medications expert, Dr. Sharma, attributed the excessive daytime sedation she reported to him on August 26, 2002, to the medication Neurontin, and the record establishes that the complainant had ceased taking this medication by August 26 and that any residual effect of the Neurontin would have dissipated three to five days thereafter, i.e., no later than August 31, 2002.
Moreover, even if lay testimony were sufficient to establish this element of the complainant's claim, the complainant's testimony to the effect that she was unable to report to work on September 4 because of sedation caused by her medications is not credible. First of all, the complainant explained to the respondent on September 3 and September 4 that she was tired from driving and from staying up until 2:00 a.m., not that she was tired because of the effects of her panic disorder/medications. It should be noted in this regard that the record does not show, nor does the complainant apparently claim, that she stayed up until 2:00 a.m. on September 4 because she had a panic attack or because her medications interfered with her ability to get to sleep or to stay asleep that night. In addition, when provided the opportunity to explain her failure to report to work on September 4, the complainant failed to attribute her conduct to her medical condition or to her medications. Finally, other aspects of complainant's testimony regarding her absence of September 4 are not credible. For example, the complainant claims that, because of her panic disorder/medications, she forgot her morning conversation with Bergstrom. However, the expert medical evidence of record does not establish that memory loss is a side effect either of the complainant's panic disorder or the medications prescribed to treat the disorder. In fact, in his treatment notes, Dr. Sharma consistently indicated that the complainant's memory was good. In addition, if, as the complainant claims, she had forgotten her conversation with Bergstrom, she would have realized, upon awakening at 2:00 p.m. that day that she had failed to provide notice of her absence to respondent and, if as conscientious about maintaining her job as she claims to be here, would have immediately contacted respondent to discuss her absence that day. The complainant does not claim to have initiated such contact.
The complainant failed to sustain her burden to show that her absence, or her failure to properly report her absence, of September 4 was caused by her claimed disability or the medications she was taking for its treatment.
Some time in June of 2002, respondent denied complainant a merit pay increase based on Pylkas's and Valadez's assessment of her attendance, attitude, and productivity during the previous twelve months. The record shows that the complainant had numerous absences and incidents of tardiness over this period of time, only a few of which she attributed to her panic disorder and medications: on April 10, had been observed by her supervisor using work time and equipment for personal reasons after her supervisor had been informed by one of the complainant's co-workers that this had been occurring; on April 19, had expressed to Pylkas and Valadez that work was not a priority for her and she did not care whether she got fired; in May of 2002, had refused to agree to cooperate in the future with a co-worker and had indicated she would rather lose her job than "kiss up;" and had gone from one of the respondent's top producers to one of the three lowest. The evidence of record does not show, and the complainant does not appear to assert, that her use of the respondent's resources for her personal use, or her attitude toward her job or her co-workers resulted in any way from her panic disorder or the medications she was taking for its treatment. Finally, the complainant testified that her panic disorder/medications had no effect on the quality of her work performance.
The complainant has failed to show that co-workers with similar records were treated more favorably than she; that the denial of merit pay was not reasonably justified or that the reasons cited by respondent for this denial were otherwise pretextual; or that the deficiencies cited by respondent as the basis for the merit pay denial were caused in significant part by her claimed disability.
The complainant has failed, as a result, to show that she was discriminated against in regard to the denial of merit pay as alleged.
The only reason the complainant did not begin work in the CAM position to which she had been promoted is that she was terminated between the date of selection for this position and the effective date of promotion. As a result, the analysis of the termination issue would be dispositive of the promotion issue.
Terms and Conditions
It is not clear to the commission what the complainant is alleging in this regard. To the extent she is alleging that statements made to her by her superiors which she interpreted as critical of her absences and tardiness constituted harassment based on her disability, these statements, considered as a whole, were not sufficiently severe or pervasive to constitute actionable harassment.
It is axiomatic that, since the complainant failed to sustain her burden to prove that she was an "individual with a disability" within the meaning of the Wisconsin Fair Employment Act (WFEA), no duty of reasonable accommodation would arise. However, even if the complainant had sustained this burden, the record does not support a conclusion that the respondent failed to reasonably accommodate the complainant's claimed disability.
A complainant has the initial burden of proving that a reasonable accommodation is available. Hutchinson Technology, Inc., v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343. Should the complainant meet that burden, the employer then has the burden of establishing that: (1) no reasonable accommodations could be made to enable the complainant to perform her or his job, or (2) the employer would experience hardship in making such accommodations. Hutchinson Technology, supra.
In her complaint of discrimination, as amended, and in her appeal of the no probable cause initial determination in this matter, the complainant clarified that the basis for that part of her charge relating to the reasonable accommodation issue was limited to the respondent's alleged denial of her request in May of 2002 that flexibility be applied in the implementation of summer hours as it related to her occasional tardiness due to oversleeping.
However, although the record shows that the respondent continued to expect the complainant to report to work on time, it also shows that her request for flexibility was not actually denied, i.e., that her supervisors continued to permit her to make up any time she missed due to tardiness or medical appointments. See, Toborg v. ShopKo, ERD Case No. CR200102517 (LIRC March 30, 2005).
The complainant now alleges that the respondent violated its duty of reasonable accommodation when it failed to provide certain accommodations she had not requested, e.g., an indefinite medical leave of absence or FMLA leave, or exemption from the respondent's punctuality and attendance requirements.
First of all, this allegation appears to be outside the scope of the complainant's charge and her appeal.
Moreover, after her request for flexibility, which was granted, the complainant did not expand her list of requested accommodations, did not present medical restrictions to the respondent, and did not specifically attribute her absences and tardiness to her claimed disability. As a result, the respondent had no reason to be aware that the complainant required further accommodation for her panic disorder/medications. Any responsibility on the respondent's part to explore further possible accommodations would not arise in such circumstances.
The record does not show that the complainant was discriminated against as alleged in regard to the accommodation of her claimed disability.
The respondent's motion to strike is denied. Exhibits C27A, and C42 through C46, are received into the record consistent with the above discussion. Exhibit C8 is not received into the record. The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed May 8, 2006
schulda . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
Attorney JoAnne Breese-Jaeck
Attorney Brian A. Price
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(1)( Back ) The ALJ credited the testimony of Hageman and Ayers to the effect that they were not aware, at the time of the termination decision, that the complainant had been diagnosed with panic disorder, had been prescribed medications to treat this disorder, or had attributed some of her absences/tardiness to oversleeping resulting from this disorder or the medications prescribed to treat it. The commission has found no persuasive reason to overturn these credibility determinations. The commission notes that Hageman and Ayers had responsibility for numerous employees, and it is certainly plausible that the receipt of emails or other information not requiring or resulting in further action would not have received much notice or attention by them, and would not have been recalled.