EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
721 Columbus Street
Sun Prairie, WI 53590
Elma Thorson, Executive Director
Creative Community Living
314 East Main Street
Watertown, WI 53094
HEARING EXAMINER'S DECISION AND ORDER ON APPEAL FROM INITIAL DETERMINATION
Case No. 21063
RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND
This matter came on for a hearing before Madison Equal Opportunities
Commission Hearing Examiner Clifford E. Blackwell, III, on January 15, 1991 at
8:30 am. The Complainant, Louise Lewis, appeared in person and without
representation. The Respondent appeared by its representative, Christine
Sarbacker and Dalmer Thorson and by its counsel Thomas Zaremba. On the basis of
the evidence presented, the Hearing Examiner now makes his Recommended Finds of
Fact, Conclusions of Law and Order, as follows:
RECOMMENDED FINDINGS OF FACT
- The Complainant is a woman who began working as a Program Administrator
for the Respondent on May 15, 1986. In 1988, she was the Program
Administrator for the Respondent's group home located at 5210 Cottage Grove
Road in the City of Madison.
- The Respondent is a Wisconsin corporation that runs or administers group
homes and independent living arrangements throughout Wisconsin for persons
with developmental and other disabilities. Its main business offices are
located in Watertown, Wisconsin. Its south central region includes Dane and
Rock counties. The offices of the south central region are located in
Madison. It maintains six group homes in Dane County and one in Rock County.
These homes or programs are funded by contracts with various governmental
units. The Respondent employs people to care for its clients and to maintain
its services, including three persons at its Cottage Grove Road group home.
At the Cottage Grove site, the Respondent, in 1988, employed a Program
Administrator and two Residential Coordinators, one living on-site and the
other living off the site. The Complainant held the position of Program
- A Program Administrator is responsible for scheduling the employees at the
home to assure that there is a staff person at the home whenever there is a
client at the home. While clients live at the home, they are often away from
the premises during weekdays for work or appointments of different kinds.
The Program Administrator is also responsible for overseeing the medical
care of the clients including the making of appointments with doctors,
assuring that treatments are followed, assuring that medical specimens are
taken and delivered, assuring that prescriptions are filled and the
medications taken, and that proper records concerning the clients medical
care are maintained. The Program Administrator is also responsible for the
development of Individual Service Plans (ISP). These plans are updated
semiannually and constitute the record of treatments and services needed by
a client and provided by the Respondent. The Program Administrator is
responsible for keeping accurate records concerning the client and for
assuring that records are transferred with the client if the client moves
from the group home. The Program Administrator also is responsible for the
actual provision of services to the client.
- The Residential Coordinators have less administrative responsibility than
the Program Administrator. The Residential Coordinator is primarily
responsible for the day-to-day provision of services to the client. It is
easier to replace a Residential Coordinator on a temporary basis because
there is a pool of emergency help and part-time employees from which to
pull. There is no easy way to replace a Program Administrator on a temporary
basis and if a Program Administrator were to be absent, the Regional
Director would have to assume the duties of an absent Program Administrator
in addition to fulfilling the regular duties of the Regional Director. On a
permanent basis, it is easier to replace a Residential Coordinator than a
Program Administrator because of the lack of administrative duties
accompanying the position of Residential Coordinator.
- On or about October 3, 1988, the Complainant contacted Christine Sarbacker,
the Regional Director for the Respondent, and indicated that she would be
looking for a new job. She also indicated that Jean Southerland, the live-in
Residential Coordinator at the Cottage Grove Road group home would be a good
replacement. Neither the Complainant nor the Respondent took any further
action with respect to this conversation.
- On November 13, 1988, the Complainant broke her wrist in a hunting
accident. The cause of this injury was in no way related to the
Complainant's employment. The Complainant kept the Respondent apprised of
her medical condition and indicated that she would not be able to return to
work until at least December 15, 1988 and possibly not until January 1,
1989. The Respondent acknowledged the Complainant's injury and indicated
that before the Complainant would be eligible for a medical leave, she would
have to use all of her vacation leave and sick leave.
- The Respondent arranged for a meeting with the Complainant on November 28,
1988 to discuss leave arrangements. The Respondent also decided to inform
the Complainant on November 28, 1988, that she would be changed from the
position of Program Administrator to the position of Residential Coordinator
as of December 1, 1988 with a corresponding decrease in pay effective
December 16, 1988.
- In a Personnel Notice dated November 28, 1988, the Respondent notified the
Complainant of her transfer and stated as the reasons for the action that
the Complainant was unable to perform the duties of Program Administrator,
the Regional Director (Christine Sarbacker) was unable to assume the
additional duties of the Complainant, the Complainant had indicated an
intention to leave the Respondent's employment and a new Program
Administrator needed to be trained. The Complainant and Respondent did not
discuss this notice. Sarbacker did not consider whether there would be
things that could be done to accommodate the Complainant's broken wrist in
deciding to transfer her from the position of Program Administrator.
- On or about December 2, 1988, the Complainant filed the Complaint of
Discrimination that commenced this action. The Complaint was amended on
December 15, 1988. The original complaint was served on December 5, 1988 and
was actually received by the Respondent at its Watertown office and its
Madison office on December 7, 1988.
- During the Complainant's absence, her duties were partially filled by the
Regional Director, Christine Sarbacker. While Sarbacker was at the Cottage
Grove home, she became aware of significant neglect of duties on the part of
the Complainant. This included the discovery of fecal samples that were a
year old and had not been sent for analysis, client record summaries that
should have been completed in June or July of 1988 and had not been
completed, evidence that prescriptions for custom fit shoes had not been
followed up and that client files had not been transferred with the client
when the client moved from the home. Sarbacker was disturbed by this
evidence of neglect and on December 6, 1988 began to write a Notice of
Discipline for the Complainant.
- On December 6, 1988, Sarbacker was informed by Jean Southerland that
doctors working with the Respondent's clients were very upset about the
failure to have specimen samples processed and the apparent failure to have
set a follow-up appointment for a client. The follow-up appointment was
critical because prolonged use of a medication in question could cause
serious side effects.
- Based upon the new information that she had received on December 6, 1988,
Sarbacker changed her mind about disciplining the Complainant and instead
decided that the Complainant's employment should be terminated for gross
neglect. Sarbacker prepared a Notice of Improper Performance and a Notice of
Termination on December 6, 1988 and delivered it on the same day to the
typing service used by the Respondent. Sarbacker picked up the personnel
actions from the typing service at approximately noon on December 7, 1988
and mailed it prior to 1:00 p.m. on the same day. Upon returning to her
office after mailing the personnel action to the Complainant, Sarbacker
found a notice that there was mail to be picked up at the local post office.
She did not pick this mail up until December 8, 1988 because she had
received a telephone call at approximately 3:30 p.m. on December 7, 1988
from Theresa Lopez, the Personnel Manager for the Respondent. Lopez informed
Sarbacker that the Respondent had received the complaint in that day's mail.
Sarbacker assumed correctly that the mail to be picked up was a copy of the
- The Respondent became aware of the complaint filed by the Complainant
between 11:30 a.m. and noon on December 7, 1988 when the Respondent's
Controller first reviewed the mail that had arrived on that day. He placed
copies of the Complaint on Lopez's desk so that she would see it upon her
return from lunch and on the desk of the Executive Director who was not
expected in the office that day.
- The Complainant had not returned to work prior to her receiving the Notice
of Termination. She was unable to write and did not regain any ability to
write until around December 16, 1988. Her arm was in a form of a hard cast
from the day she broke it until the cast was replaced with a brace in late
December of 1988. The brace was removed around the end of January.
Throughout this period, the Complainant was significantly limited in her
ability to hold or lift objects.
- Had the Complainant been able to return to work prior to her termination,
there were aspects of her job that she could have performed. The Respondent
made no inquiry of the Complainant concerning possible accommodations that
could have been made to allow her to perform her tasks. The Respondent
performed no individual analysis of the Complainant's ability to work and
perceived the Complainant to be unable to work so long as her wrist was
broken. The Complainant suffered no long-term disability as a result of her
broken wrist and was hampered by the injury for approximately two and a half
- The Respondent's decision to terminate the Complainant's employment was
not based upon her injury and was completed prior to receiving actual or
constructive notice of the complaint filed with the Commission.
- Sarbacker, the Complainant's immediate supervisor perceived the
Complainant to be handicapped by her broken wrist.
- The Complainant suffered no economic loss or any other loss recognized by
CONCLUSIONS OF LAW
- The Complainant was handicapped within the meaning of Madison General
- The Respondent, in changing the Complainant's position from Program
Administrator to Residential Coordinator, discriminated against the
Complainant on the basis of her handicap.
- The Respondent did not retaliate against the Complainant for the filing of
her complaint with the Commission or for any other reason.
- The Complainant suffered no economic loss because she received her full
pay and benefits for the approximately one week that she held the position
of Residential Coordinator prior to her justified termination of employment
for gross misconduct.
- The Complainant failed to demonstrate any entitlement to other
non-economic damages such as embarrassment or humiliation.
- The Respondent is ordered to cease and desist from its discrimination
against the Complainant or any other employee on the basis of handicap.
The Ordinance does not define handicap and so the Commission has used other
sources such as the Wisconsin Fair Employment Act (FEA), Wis. Stats. sec. 111.31
et seq. for guidance in applying the prohibitions against discrimination against
the handicapped. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551
(October 7, 1980), Omachinski vs. Seireg, MEOC Case No. 1395 (May 2,
1989). As a general matter, cases decided under the FEA have held that
temporary conditions such as the broken arm suffered by the Complainant in this
case are not handicapping conditions that qualify for the protection of the Act.
Keith v. AFK (LIRC, 08/14/82), Terrell v. Pabst Brewing (LIRC,
03/04/81). However, there are conditions, though apparently temporary, that
qualify for coverage.
Goldberg v. Dept of Personnel (Wis. Personnel Comm., 10/17/1980). This
would seem to apply with particular strength when the definition of handicap is
met by the Respondent's perception that the Complainant is unable to do the job.
In this case, there is no question that the Complainant's supervisor, Christine
Sarbacker, believed that the Complainant was unable to perform the job. The
personnel action taken on November 28, 1988, to be effective on December 1,
clearly states that among other reasons, one reason for the action was the
inability of the Complainant to do the work. This was echoed in Sarbacker's
testimony at the time of hearing. The Complainant was never given the
opportunity to explain or suggest to what extent she might be able to perform
the duties of her job with or without accommodation. Sarbacker suggests that
there were elements of the job that the Complainant could perform and that there
might be ways for the Complainant to perform other functions. Given these facts,
I conclude that the Complainant was handicapped within the meaning of the
Ordinance because the Respondent perceived her to be handicapped and unable to
perform her job because of her broken wrist.
Having found the Complainant to have been handicapped, we would normally see
if the Complainant could perform the requirements of her job without
accommodation or whether some accommodation might be necessary. Since the
finding of handicap is based upon the Respondent's perception that the
Complainant was handicapped, this analysis is not necessary. The case of State
ex Rel. Elizabeth Busto v. Madison Equal Opportunities Commission and Wisconsin
Power and Light Co., Case No. 90 CV 1594 (Dane Cty. Cir. Ct., January 9,
1991) clearly holds that there is no duty to accommodate a perceived handicap in
the absence of an actual handicapping condition. In this case, the Complainant's
broken wrist by itself would not constitute a handicapping condition because it
was a very temporary condition that is not the type of condition that was
intended to be protected by the Ordinance's prohibition against handicap
discrimination. This is primarily because the Complainant's broken wrist is not
the type of condition that would make achieving work or obtaining work unusually
difficult beyond the short time needed for her wrist to mend. Without a truly
handicapping condition, the Respondent had not obligation or duty to accommodate
the perceived handicap.
It is the responsibility of the Complainant to establish not only entitlement
to an award of damages but to the amount of damages to be awarded. This proof
must be made by the preponderance of the evidence for non-economic emotional
damages. That such damages can be awarded by the Commission, in employment
cases, was established in the case of Nelson v. Weight Loss Clinic of America
Inc. et al, MEOC Case No. 20684, (September 29, 1989). Other than the
Complainant's request for an award of such damages, there is nothing in the
record from which the amount of such damages may be determined. While, in some
cases, such an emotional injury may be inferred or presumed, the facts in the
record are insufficient to justify such a presumption in this case. The only
facts testified to by the Complainant, with respect to the issue of emotional
damage, was that she was shocked to hear of her demotion and that she did not
discuss it with Sarbacker because she felt that it would do no good. Beyond her
immediate reaction, the Complainant did not testify about any other emotional
feelings of loss, embarrassment or humiliation. It is not possible to separate
out one's understandable surprise at being told of an unexpected demotion and
those emotions generated from the realization that one has been discriminated
against. Since it is the Complainant's burden to prove all elements of her
claim, she will receive no award for non-economic damages because she has failed
to prove them.
In all employment cases, it must be determined whether the Complainant who
has been the victim of discrimination shall be awarded their job back. The facts
in this case do not support an order to rehire. The Complainant was properly
terminated from the Respondent's employment after what can only be termed gross
misconduct was discovered. While the Complainant was on sick leave recovering
from her injury, Sarbacker took over the Complainant's day-to-day duties. Upon
examining the Complainant's office, Sarbacker discovered medical samples that
had been taken almost a year prior that had not been sent for analysis. She also
found client records that had not been completed and records that should have
been sent with a client that had not been sent. The Complainant does not
seriously dispute these findings. The lack of attention to fecal samples is
particularly shocking. Sarbacker also determined that the Complainant had failed
to use the proper procedure to follow-up on a prescription for shoes for a
client and that a client was allowed to continue on a dangerous medication for
several months because of a failure to establish a follow-up medical
appointment. The Complainant disputes her culpability with respects to these
last two items. Her protests are not credible. These were items under her
control and she should have seen that they were accomplished. Initial problems
which the Complainant does not dispute were in themselves sufficient grounds for
her dismissal without reference to the disputed items. Given these instances of
neglect, there can be no consideration of ordering the Respondent to reinstate
the Complainant as a Program Administrator. It would appear fortunate that the
Respondent escaped liability for its neglect of its duty to its clients while
the Complainant was a Program Administrator, it would be harsh to expect it to
assume such a potential liability again.
With respect to the Complainant's claim that she was retaliated against by
the Respondent for the filing of her complaint, she fails to meet her burden of
proof. In essence, her case is that since the Respondent received the complaint
on the same day that it sent its notice terminating her employment, that it must
have been retaliation. She made no effort to contradict the explanation of the
time sequence laid out by the Respondent. While the Complainant's position was
sufficient for a finding of probably cause, it is insufficient at the hearing
stage. I find that the Respondent's explanation of the sequence of events is
entirely credible and is consistent with the operation of an enterprise with
several different worksites. The Respondent clearly had sufficient cause to
terminate the Complainant's employment without regard to its receipt of the
Commission's complaint. The schedule of work performed by the Respondent's
typing service supports the Respondent's explanation that the termination was
sent before Sarbacker knew of the discrimination complaint. The Complainant has
failed to demonstrate that the Respondent took its action of termination because
of the complaint filed by the Complainant with the Commission.
Signed and dated this 28th day of September, 1992.
EQUAL OPPORTUNITIES COMMISSION
Clifford E. Blackwell, III