MARTIN D KAYE, Complainant

CITY OF MILWAUKEE

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

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

Dated and mailed September 30, 2008
kayemar . rsd : 115 : 9

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

(1) Harassment by his supervisor, specifically:

(a) followed complainant around on a daily basis;

(b) continually asked complainant questions regarding the settlement of an earlier charge;

(c) continually asked complainant questions about his personal life;

(d) complained about complainant's work restrictions.

(2) Investigations/reprimands of complainant by respondent in response to allegations that he had engaged in the following conduct:

(a) harassed female coworkers after his June 1, 2004, transfer to first shift;

(b) impersonated a police officer to a bank teller in June 2005;

(c) harassed coworker Reyes in January 2006 by kissing him;

(d) was insubordinate and confrontational to his supervisor on April 17, 2006. 
 

Retaliation

A claim of retaliation, like other cases of alleged discrimination, follows the same burden shifting framework that was initially set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). First, the complainant must establish by a preponderance of the evidence a prima facie case of retaliation. Second, if the complainant succeeds in proving the prima facie case, the burden shifts to the respondent to articulate a legitimate, nondiscriminatory reason for its action. Third, should the respondent carry this burden, the complainant then has an opportunity to prove that the reason offered by the respondent for its action was a mere pretext for retaliation. See, Matthews v. Bassett Bedding, ERD Case No. 8902772 (LIRC Oct. 27, 1993).

To establish a prima facie case of retaliation here, the complainant must initially prove that (1) he engaged in statutorily protected fair employment activity, (2) the respondent took an adverse action against him, and (3) a causal connection exists between the protected activity and the adverse action. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).

It is axiomatic that, in order for a causal connection to exist, the alleged retaliator must have been aware of the protected activity. See, Wucherpfennig v. Personal Development Center, ERD Case No. CR200201383 (LIRC June 29, 2006).

The complainant filed his first charge of discrimination against respondent on April 30, 2002.

The complainant alleges that the harassment by his supervisor began immediately after he was reinstated, on June 23, 2003, as a part of the settlement of this April 2002 charge. However, the record shows that the complainant's supervisor (Raddatz) had no reason to be aware of the April 2002 charge until several months after the complainant's reinstatement.

In addition, the record shows that the complainant was not singled out for this type of treatment by his supervisor since another worker (Darryl), who was not shown to have engaged in a protected fair employment activity, received similar treatment from Raddatz.

As a result, the record does not establish a causal connection between the complainant's protected fair employment activity and the alleged harassment by his supervisor, and, as a result, the complainant failed to establish a prima facie case of fair employment retaliation in this regard.

The complainant also alleged that he was retaliated against both when complaints were filed against him, and when the respondent investigated these complaints and issued reprimands to him.

In regard to the filing of the complaints, the evidence of record does not show that the female coworkers, the bank teller, or coworker Reyes, when they made their complaints to respondent about his conduct, had any reason to be aware of the fair employment charges filed by complainant, and the complainant consequently failed to establish a prima facie case of retaliation as to the filing of these complaints.

Even if a causal connection could be inferred from the circumstances here in regard to the supervisor's April 2006 complaint, and in regard to the respondent's investigation of the subject complaints and reprimands of the complainant, the respondent articulated legitimate, non-retaliatory reasons for its actions, and the complainant failed to sustain his burden to show these reasons were a pretext for retaliation.

Given the nature of the three earlier complaints, i.e., that the complainant had sexually harassed female coworkers, impersonated a police officer, and harassed a male coworker by kissing him, the respondent was reasonably justified in investigating these complaints, and the record does not show that the resulting reprimands were not merited. In addition, the record does not show that other workers, against whom similar complaints were filed, were treated more favorably than the complainant.

In regard to the April 2006 incident, the record shows, as the administrative law judge (ALJ) found, that the complainant had ignored his supervisor's page to continue what his supervisor believed was a personal phone conversation, told his supervisor he did not have to "take this shit," made a further statement which his supervisor understood referred to him as "a piece of shit," and left the work site claiming he was going home sick. After the supervisor complained, the respondent conducted an investigation and reprimanded the complainant for disrespectful conduct toward his supervisor. Given the nature of the complainant's conduct, both the investigation and the reprimand were reasonably justified. Moreover, the record shows that the supervisor had been involved in filing a complaint against another worker who had engaged in similar conduct. The record does not show that this other worker had ever engaged in a protected fair employment activity.

The complainant has failed to sustain his burden to prove that he was retaliated against as alleged. 
 

Disability discrimination

The complainant's initial burden in a disability discrimination case is to establish that he 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). See, also, 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 the existence of a disability is 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).

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 him or limited his capacity to work. See, Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).

The complainant has identified his claimed disability as limited strength and range of motion in his right arm resulting from cancer surgery, for which certain unspecified lifting restrictions were imposed.

For a claim of disability discrimination to be actionable under the WFEA, a disability must be permanent. Erickson v. LIRC and Quad Graphics, Inc., 2005 WI App 208, 704 N.W.2d 398.

There is no competent medical evidence in the record as to the permanency of the complainant's condition.

The evidence of record also does not establish how or to what extent the complainant's condition placed a limitation on his normal functions or on a major life activity. In addition, the existence of lifting restrictions would not be sufficient alone to support a conclusion that the complainant's condition imposed a substantial limitation on his capacity to work. See, Gramza v. Kwik Trip, Inc., ERD Case No. CR200004205 (LIRC Feb. 20, 2003); Wucherpfennig v. Personal Development Center, ERD Case No. CR200201383 (LIRC June 29, 2006).

Finally, the complainant appears to argue that the record supports a conclusion that the respondent perceived him to be disabled. The nature and extent of the medical restrictions the complainant presented to the respondent in regard to this condition, i.e., certain unspecified lifting restrictions, would not reasonably have led the respondent to believe that the complainant suffered from a disabling impairment. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).

The complainant has failed to sustain his burden to prove that he qualifies as an individual with a disability within the meaning of the WFEA.
 

Procedural issue

In his petition to the commission, the complainant takes issue with the ALJ's decision not to permit the testimony of Lt. Mercedes Cowan, Police Chief Hegerty, and Inspector Hoerig, asserting that Lt. Cowan had "signed off on the medical," and Chief Hegerty and Inspector Hoerig had signed off on his reprimands and he wanted to determine what they knew of the investigative process that had been followed.

The file in this matter indicates that the complainant requested that the ALJ issue subpoenas to these individuals in order to compel their testimony at hearing. In response, the respondent, through its attorney, objected, arguing that none of these individuals had any personal or direct knowledge of the actions at issue. The complainant's only response was that he disagreed and that, "...[t]he hearing should show that the complaint is supported by Lieutenant Mercedes Cowan of the Medical Section." Attached to this response by the complainant is a February 2007 letter from Lt. Cowan ordering him to appear for a fitness for duty examination.

By letter dated April 26, 2007, the ALJ denied the complainant's requests for subpoenas for Cowan, Hegerty, and Hoerig, stating as follows in this regard:

I am denying the Complainant's requests for subpoenas for Chief Nannette Hegerty, Inspector Mary Hoerig, and Lt. Mercedes Cowan. The Complainant has not shown that these people [will] have any information to support his complaint in this matter. The Complainant could have used discovery in this matter to establish if these persons had knowledge of the Complainant's complaint, but the Complainant has not done so. I will not allow the Complainant to take up the witnesses' time and our valuable hearing time, so he can see if these witnesses have any information that might be helpful to him. In particular, the Complainant will not be allowed to call Lt. Cowan, since the Complainant apparently wants to ask him questions about something that is not in the Complainant's complaint and that occurred after his complaint was filed....

The commission agrees with the ALJ that the only basis offered by the complainant for calling Lt. Cowan as a witness related to a circumstance occurring after the filing of the charge which the complainant failed to link to the matter at issue.

In addition, the complainant has not disputed the respondent's assertion that neither Hegerty nor Hoerig had personal knowledge regarding the actions underlying the complaints made against the complainant, or was directly involved in investigating these complaints or imposing the resulting reprimands. Without this personal knowledge or direct involvement, the commission agrees that the ALJ properly denied the complainant's request that these individuals be subpoenaed.

cc: Attorney Leonard A. Tokus

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