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

LAWRENCE GOLDSMITH, Complainant

SEARS ROEBUCK AND CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200203912


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:

1. In the last sentence of paragraph 12 of the FINDINGS OF FACT, the word "not" is inserted after the word "did".

2. In paragraph 3 of the ORDER, the figure "$21,809.58" is deleted and the figure of "$24,609.58" is substituted therefor.

3. Paragraph 4 of the ORDER is deleted and the following paragraph substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense."

DECISION

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

Dated and mailed June 29, 2006
goldsla . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The respondent, a retail store, implemented a no-fault attendance policy in June 2001, under which an employee reaching a total of 10 "occurrences" for absences and tardiness within a running twelve month period would be discharged. Lawrence Goldsmith, employed as a sales associate for the respondent and who is diagnosed as having Bipolar II Disorder, reached 10 occurrences within a twelve month period on April 16, 2002. Several of his occurrences were related to his Bipolar II Disorder and the medications he took for this disorder. The respondent terminated Goldsmith pursuant to its no-fault attendance policy effective on April 17, 2002.

Goldsmith filed a charge of discrimination with the EEOC, which was cross-filed with the ERD, alleging that the respondent terminated his employment on the basis of disability and failed to reasonably accommodate his disability. Following a hearing on the merits of Goldsmith's claim before the ERD, the administrative law judge concluded that Goldsmith is an individual with a disability within the meaning of the WFEA, that the respondent violated the WFEA by terminating Goldsmith's employment because of his disability and that the respondent violated the WFEA by failing to reasonably accommodate his disability.

In a disability discrimination claim under the WFEA a complainant must show that: (1) he or she is an "individual with a disability" within the meaning of Wis. Stat. § 111.32(8), and that (2) the employer took one of the actions enumerated in Wis. Stat. § 111.322 (e.g., terminated the complainant's employment). Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 42. 264 Wis. 2d 200, 225, 664 N.W.2d 651; Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998). In addition to the above showings, a complainant has the initial burden of proving that a reasonable accommodation is available. Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, 2, 35, 273 Wis. 2d 394, 398, 416, 682 N.W.2d 343. Should the complainant meet the above burdens, the employer has the burden of establishing that: (1) no reasonable accommodations could be made to enable the complainant to perform his or her job, or (2) the employer would experience hardship in making such accommodations. Hutchinson Technology, 2004 WI 90, 2, 35, 273 Wis. 2d at 398, 416.

Under the WFEA, an individual with a disability includes an individual who has a mental impairment which makes achievement unusually difficult or limits the capacity the work. Wis. Stat. § 111.32(8)(a). A showing of either condition satisfies this element of proof. The determination of whether a particular impairment makes achievement unusually difficult rests with whether or not that impairment places a substantial limitation on life's normal functions or a substantial limitation on a major life activity. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510 (1987). On the other hand, the determination of whether a particular impairment limits the capacity to work refers to the particular job in question. Id., citing Brown County v. LIRC, 124 Wis. 2d 560, 572, 369 N.W.2d 735 (1985).

The ALJ's decision provides ample detail regarding the facts of this case, and her memorandum opinion thoroughly explains why she rejected the respondent's arguments in support of a determination that there was no violation of the Act, so the commission will not repeat that here and instead address the respondent's arguments raised on appeal.

First of all, the respondent contests the ALJ's determination that Goldsmith is an individual with a disability on a different basis than argued before the ALJ. The respondent argues that Goldsmith's condition was temporary and therefore not a disability under the WFEA because the commission has interpreted the term disability under the WFEA to require a permanent impairment. Erickson v. LIRC, 2005 WI App. 208, 287 Wis. 2d 204, 704 N.W.2d 398 (Ct. App. 2005). Specifically, the respondent argues that Goldsmith's condition was temporary because it merely involved medication side effects which were causing Goldsmith to miss work and which could be resolved by simply making an adjustment to the medications being taken.

Dr. Donna Brehm, who began treating Goldsmith for his Bipolar II Disorder in August of 1998, testified that Bipolar II Disorder is a cycling mood disorder that moves from severe depression and cycles into hypomania with symptoms that include fluctuations in mood, at times severe dysphoria, at times euphoria, irritability, anxiety, agitation, sleep problems, appetite problems, energy problems, and sometimes thinking problems. Dr. Brehm's records show that over the course of her treatment of Goldsmith that Goldsmith has reported a variety of symptoms that he was experiencing as a result of his Bipolar II Disorder and the medications he was taking to control his Bipolar II Disorder. For example, Goldsmith has reported experiencing problems with mood stability, obsessing, dysphoria, anxiety, sleep, energy and avoidance of social situations. Goldsmith testified that at times, knowing that he was hungry he could not even get out of bed to feed himself and that he would isolate himself from the world because of his depression. Goldsmith also testified that due to his anxiety he would have multiple thoughts going through his mind all at once which made him unable to sleep.

Goldsmith began employment with the respondent in December of 2000. There were occasions when Goldsmith was absent from work during the first six months of his employment due to his Bipolar II Disorder and the medications he was taking to control his Bipolar II Disorder, but this preceded the respondent's implementation of its no-fault attendance policy which went into effect on June 1, 2001. Goldsmith testified that he was absent on June 9 and 10, 2001, and on July 25, 2001, for reasons associated with his depression, anxiety and the fact that he was on multiple medications. During August and September of 2001, Goldsmith was having trouble with early morning depressive and anxiety symptoms, which caused him to have difficulty arising and going to work. He also on occasion experienced profound early morning fatigue. He was absent from work on August 12, 26 and 27, 2001. Dr. Brehm testified that "[Goldsmith] was avoiding situations, hiding in bed because of his anxiety and depression. He was able to function at work as long as he could get there. But it looked like his depression and anxiety symptoms and maybe some of the side effects of the medication were making it very hard for him to arise and get to work." In a letter to the respondent dated August 16, 2001, Dr. Brehm informed the respondent that she was treating Goldsmith for depression and anxiety. She also stated that Goldsmith was experiencing some side effects from his medication that may result in absences from work, but over the next few months they would be working with medication adjustments to remedy this situation. Dr. Brehm prepared a second letter for Goldsmith dated September 11, 2001, stating that he was unable to work from September 7 to September 10, 2001 due to complications from medication adjustments.

The above evidence shows that Goldsmith is an individual with a disability within the meaning of the WFEA. Goldsmith's Bipolar II Disorder placed a substantial limitation on life's normal functions of sleeping, getting out of bed in the morning, thinking and even caring for himself. Goldsmith's Bipolar II Disorder also limited his capacity to work as a sales associate since at times it limited his ability to even get to work. Further, Goldsmith's condition cannot be considered as a temporary condition. Goldsmith was first diagnosed with depression and anxiety in 1997. Dr. Brehm testified that it was her opinion to a reasonable degree of medical certainty that Goldsmith was having difficulty arising and getting to work in August and September of 2001 both because Goldsmith was experiencing early morning depressive and anxiety symptoms and because of the side effects his medication was having on him. Dr. Brehm Deposition, pp. 8-9, 12, 21, 24. Furthermore, at the time of the May 13, 2005 hearing in this matter Goldsmith was still being treated by Dr. Brehm and also seeing a psychologist for his Bipolar II Disorder. The only thing temporary about Goldsmith's condition was the few months needed to adjust his medication to remedy the side effects his medication was having on him.

Next, the respondent argues that if it is concluded Goldsmith has a disability that it accommodated his disability by offering a leave of absence so that he might get his medication levels adjusted, but Goldsmith refused this offer. The respondent asserts that the testimony of its former store manager, Jodi McClellan, shows that Goldsmith was offered a leave of absence but refused it. However, McClellan's testimony shows that she could not state with any degree of certainty that she had offered Goldsmith a leave of absence to get his medication levels adjusted. McClellan testified at the hearing that she recalled talking to Goldsmith regarding a need to get his "illnesses" under control, but did not remember when that conversation took place, referred to this conversation as a conversation involving his "illnesses" generally and she could not recall Goldsmith's response during this alleged conversation. T. 119-120. Furthermore, at her prior deposition, McClellan had testified that she did not recall having any conversation with Goldsmith regarding a medical leave during his employment. T. 124. Moreover, Goldsmith was positive that neither McClellan nor any other management employee had ever told him that he could take time off to get his medication levels adjusted. T. 94-95.

The respondent further argues that Goldsmith knew of the procedures for requesting a leave under the Federal Family and Medical Leave Act but refused to pursue such leave by consulting Dr. Brehm because he (Goldsmith) did not believe he qualified for his depression and medication problems. However, Goldsmith did not qualify for a FFMLA because the information provided by the respondent regarding the FFMLA included a notice that eligibility for protection under the FFMLA required at least 1 year of service and Goldsmith had had less than 1 year of service as of August and September of 2001 at the time of his absences due to his Bipolar II Disorder and complications from his medical adjustments. See Exhibit 3, p. 2.

Next, the respondent argues that the ALJ's determination that it should have exempted Goldsmith from its attendance policy for a few months while he was having his medications adjusted to control his Bipolar II Disorder was not a reasonable accommodation. The respondent argues that this is not a reasonable accommodation because this required it to keep Goldsmith on staff and continue to schedule him for work with no guarantee he would show up, forcing it to schedule an additional employee to cover the position or to contact employees daily to fill the shift if Goldsmith cannot work. Further, the respondent argues that unlike in Target Stores, supra, where the treatment to remedy the problems associated with the complainant's disability (sleep apnea) would be resolved in "a reasonably short time", Dr. Brehm predicted anywhere between two to six months to remedy the problem. However, considering that prior to August 2001 Goldsmith had had only occasional absences as a result of his Bipolar II Disorder and that Dr. Brehm's August 2001 letter merely stated that Goldsmith was currently experiencing some side effects from his medication "which may result in absences from work", the respondent greatly over exaggerates the actual situation that presented itself and what would have been required of it as an accommodation for Goldsmith's disability. Furthermore, the respondent never even offered to temporarily exempt Goldsmith from its attendance policy for even a "short period of time" to determine if in fact the adjustments to his medication would remedy the problems he was having with his Bipolar II Disorder. The record shows that Goldsmith only missed three days of disability-related absences in August 2001 and three days of disability-related absences in September 2001, for which he was charged with three occurrences under the respondent's no-fault attendance policy.

The respondent apparently argues, however, that it would not be a reasonable accommodation to allow Goldsmith to be excused from application of its no fault attendance policy because he had also incurred absences for reasons that were not disability-related. However, this argument completely ignores the Act's purpose of protecting individuals from being discriminated against on the basis of their protected status. The fact that an individual with a disability incurs absences not related to that individual's disability does not permit an employer to ignore its obligation to reasonably accommodate that individual with respect to disability-related absences over which the individual has no control.

Further, citing Geen v. Stoughton Trailers, Inc. (LIRC, 08/31/00 & 09/11/03), the respondent also argues that without regard to any disability-related absence, Goldsmith's attendance record "indicates a termination was likely"; that Goldsmith cannot simply choose "certain absences from his numerous accrued occurrences and complain the termination was based on those absences and not others." In Geen, the commission suggested the possibility of a whole continuum of situations involving no-fault attendance policies in which the role of absences caused by the disability would not be significant enough to justify that a discharge was "because of" disability, while at the other end of the continuum the opposite conclusion would be required. However, Geen provides no support for the respondent's argument. In Geen, where discharge resulted if an employee accrued 6 occurrences, 4.5 of Scott Geen's occurrences were not disability-related and the commission still concluded that Geen had been discharged because of his disability. In the instant case, an even higher percentage of Goldsmith's occurrences were disability-related as 5 of the 10 occurrences accrued by Goldsmith were the result of his Bipolar II Disorder and medication side effects. In Geen, the commission concluded that applying the "in part" (or mixed motive) test in discrimination cases under the WFEA endorsed by the Court of Appeals in Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (1994), the decision to discharge Geen was because of his disability. Like Geen, Goldsmith's discharge resulted in part because of absences from work caused by his disability, and in part because of absences from work not caused by his disability. Also, like Geen, Goldsmith would not have been discharged if the respondent had not counted his occurrences which were caused by his disability.

Finally, the respondent argues that the ALJ's conclusion that Goldsmith's absences caused no hardship to the respondent is unsupported because there was testimony by the respondent and Goldsmith that Goldsmith's absences caused hardship to the respondent. The respondent's argument fails. No factual information was provided to establish that Goldsmith's absences caused any hardship to the respondent's business. Jodi McClellan, the respondent's store manager at the time in question, asserted that Goldsmith's absences left the floor improperly staffed which affected customer service and potentially affected sales. McClellan had no specific evidence to show that Goldsmith's absences actually affected sales. T. 121. Roy Lemmer, Goldsmith's supervisor, asserted that Goldsmith's absences caused a hardship for the respondent, but when asked to explain how simply stated, "When we are short-staffed, it can lead to not servicing a customer in a manner that many customers would, you know, appreciate being taken care of." T. 143-144. (Emphasis added.) Furthermore, Lemmer indicated that Goldsmith's absences presented a "mixed bag" because while other commissioned sales associates would be forced to take care of customers instead of carrying on with their normal duties, some of Goldsmith's fellow commissioned salespeople would be happy with his absence because it increased their opportunity to make more money. T. 151. Finally, Goldsmith stated that his absences were an inconvenience for the employer, not that his absences caused a hardship for the respondent. T. 107-108.
 

Attorney's Fees

The ALJ included an award of attorney's fees and costs for Goldsmith totaling $21,809.58.

The ALJ awarded the total requested amounts of $19,315.00 for attorney's fees and $2,494.58 for costs. Two attorneys were involved in the representation of Goldsmith. The documentation for their fee petition showed 92.3 hours of work performed in this matter by Attorney Rebecca Salawdeh, at the rate of $200.00 per hour, and 3.8 hours of work performed by Attorney Scott Taylor performed at the rate of $225.00 per hour. Affidavits submitted by these attorneys indicate that these are their normal hourly rates. Apparently, the respondent has not objected to the requested amount for attorney's fee or costs.

Attorney Salawdeh's fee petition included affidavits from two other attorneys stating that her fee request of $200.00 per hour was reasonable in light of her background, skills and experience. The request for costs totaling $2,494.58 is also reasonable.

Attorney Salawdeh has petitioned for an additional fee request of $2,800.00 (14.0 hours @ $200.00 per hour) for work performed since the filing of the petition for review in this matter. The respondent has not contested the reasonableness of this fee request. The commission finds this additional fee request to be reasonable and has therefore increased the attorney fee award by this amount.

cc:
Attorney Rebecca L. Salawdeh
Attorney Michael J. Ganzer


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