Wis.LIRC ER Decision: Carter, Terry - August 16, 1999 - Disability, accommodation of; scheduling meetings not to conflict with therapy sessions

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

TERRY W. CARTER, Complainant

MILWAUKEE BOARD OF SCHOOL DIRECTORS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700210, EEOC Case No. 26090129

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.

DECISION

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

Dated and mailed August 16, 1999
cartete.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant's claim in this case is that she was discriminated against on the basis of disability because her supervisor, Aramis Defort, denied her permission to attend physical therapy sessions due to her job as chairperson of the M-Team. The ALJ found that Mr. Defort had not failed to reasonably accommodate a physical or mental impairment when he refused to allow the complainant to continue to miss M-Team meetings as she had refused to provide him medical information establishing that she had a disabling condition that absolutely required that she attend therapy sessions rather than perform her duties as the chair of the M-Team.

On appeal the complainant argues that the ALJ completely discounted testimony that her chiropractor, Dr. Gerondale, decided upon a course of treatment of administering therapy in the morning to provide temporary relief of the pain she was experiencing so that she could reduce her intake of prescription medication, which was causing negative side effects, and be able to work more efficiently. This argument fails. The problem that had arisen was that the complainant was attending therapy sessions on Wednesday and Friday mornings at the same time that the M-Team meetings were scheduled. While the record does show that the complainant had supplied Mr. Defort with a statement from Dr. Gerondale that "Treatments are best performed in the mornings to maximize improvement and minimize prescription drug use," the complainant had never provided, as had been requested by Mr. Defort, a doctor's statement showing that she absolutely could not have her therapy at times other than Wednesday and Friday mornings when the M-Team meetings were scheduled.

The complainant argues that because she had been absent from work on a leave of absence for her work injury from March 10, 1995 through October 23, 1995, this had caused her to be "out of assignment," that Norma Jean Halburg had replaced her as the social worker at Washington High School, that she was assigned to assist Halburg upon returning to work, and that consequently, her presence at the M-Team meetings was not indispensable to the M-team's functioning. The record indicates, however, that while Ms. Halburg had been working at Washington High School as a substitute, that by November 1996 neither Ms. Halburg nor Mr. Defort believed that Ms. Halburg possessed the experience necessary to be the high school social worker, which therefore made it imperative that the complainant attend the M-Team meetings.

Finally, the complainant also argues that the ALJ erred in precluding her from presenting testimony from Mr. Don Wallace, another social worker. This argument also fails. Apparently the complainant wanted Mr. Wallace to present testimony showing that when she returned to work there were new duties for social workers that had not existed before, that she had missed the training on some of the things expected of her, and that this had resulted in some "difficulties" between her and Mr. Defort. Whatever the difficulties that may have existed between the complainant and Mr. Defort over the new duties expected of social workers, this did not prevent her from submitting a doctor's statement showing that she absolutely could not have her therapy at times other than Wednesday and Friday mornings when the M-Team meetings were scheduled.

cc: Leonard A. Tokus

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