DARLENE A. COOK, Complainant

COMMUNITY CARE RESOURCES, INC., Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on April 9, 2001. A timely petition for review was filed with the Equal Rights Division on April 24, 2001. The Equal Rights Division forwarded the file in this matter to the commission on June 21, 2002.

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 January 13, 2003
cookdar . rsd : 110 : 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

This case presents the question of whether Community Care Resources, Inc. ("CCR") discriminated against Darlene Cook because of her disability.

CCR is an outpatient mental health clinic which, among other things, provides foster home and group home services under contract with county and other social service agencies. Cook, who obtained a Master of Social Work degree from the University of Wisconsin at Madison in 1998, was hired by CCR in early June, 1999, as a Clinical Specialist, to perform professional social work services in connection with CCR's activities in providing foster home and group home services.

In mid-August, 1999, Cook became ill. As her condition worsened, she sought medical diagnosis and treatment. CCR, and in particular Cook's supervisor Alexandria von Kirschner, was made aware of information concerning Cook's illness, which was resulting in her being unable to work on some days. Eventually, in the last week of August, Cook asked CCR for an indefinite medical leave of absence.

Also in mid-August, 1999, von Kirschner had begun to become concerned with Cook's work performance. These concerns had begun as a result of a few incidents prior to that time, and they continued to grow as more issues came to von Kirschner's attention through August and into September. By about the end of the first week of September, von Kirschner had decided to recommend the termination of Cook's employment. This recommendation was concurred in by CCR's President, Dan Simon, and Cook was informed that she would be terminated unless she submitted a letter of resignation. Cook did not submit a letter of resignation and her employment was effectively terminated.

Cook alleged that CCR discriminated against her because of her disability in connection with the way she was treated during her brief period of employment at CCR and in connection with the decision to discharge her. (1)   Cook alleged that CCR fired her without warning shortly after learning that Cook had developed a severe illness. She alleged that no work performance issues had ever been brought to her attention prior to the discharge, and that she was treated differently from other employees who were given warnings and the opportunity to correct work performance issues. Cook argues that when she requested a Medical Leave of Absence it was never given to her, that CCR never made any attempt to obtain information about her condition in order to be able to offer her accommodations, and that CCR discharged her because of her disability.

CCR argues that its decisions concerning Cook's employment, including its decision to end the employment relationship, were not made because of the information CCR had learned about Cook's illness, but rather because of concerns which CCR had developed about Cook's work performance. CCR argues that based on observations of its supervisors and on complaints about Cook which were received from outside sources, it reasonably came to believe that Cook's performance was substandard in a number of respects, and that it was this which motivated its decision to terminate Cook.

The Administrative Law Judge ("ALJ") who presided over the five days of hearing in this matter made detailed findings of fact concerning the events at issue. The ALJ found that, while Cook demonstrated that she was an individual with a disability and that CCR was aware of her disability, the decisions made by CCR, including the decision to terminate Cook's employment, were not made because of Cook's disability, but because of CCR's concerns that Cook's work performance was inadequate, for reasons not caused by her disability. The ALJ thus concluded that CCR had not discriminated against Cook because of disability in violation of the Wisconsin Fair Employment Act.

To establish a claim of discrimination because of disability, a complainant must establish that he is an individual with a disability, and he must show that a challenged employment action was taken by the employer because of that disability. If those things are established, the question then becomes whether the employer can justify its actions under the exception set forth in Wis. Stat. § 111.34(2) for situations in which a disability is reasonably related to an employee's ability to adequately undertake the job-related responsibilities of his employment. See, Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991); Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). If the applicability of that exception is established, the question then becomes whether the employer can establish that it did not refuse to reasonably accommodate the complainant's disability, or that any accommodation which might have been made would have posed a hardship on the employer's program enterprise or business, within the meaning of Wis. Stat. § 111.34(1)(b).

It is important to bear in mind, that the question of the applicability of the "reasonably related to . . . ability to adequately undertake the job-related responsibilities" exception comes into play only if it appears that a challenged employment decision was made because of a disability. It is also important to bear in mind, that the question of whether reasonable accommodation was refused or would have posed a hardship comes into play only if it appears that a challenged employment decision was made because of a disability and that the disability which was the reason for a challenged employment action is reasonably related to the complainant's ability to do the job. See, Madaus v. International Stamping Co. (LIRC, 09/22/94), Schaafs v. Schultz Sav O Stores (LIRC, 11/06/86).

The record in this case establishes that Cook is an individual with a disability. As discussed above, the question which next arises is whether CCR made decisions concerning Cook's employment because of her disability. This is a question of fact, concerning as it does the intent and motivation of the agents of CCR responsible for the challenged employment actions here.

The commission, which has carefully considered the extensive evidentiary record as well as the written argument submitted by the parties, is persuaded that the ALJ arrived at the correct outcome on this question. Like the ALJ, the commission finds that the decisions made by CCR through its agents were not made because of what they knew concerning Cook's illness, but were instead made because of their concerns, genuinely held and reasonably based on the information available to them, that Cook's job performance as a Clinical Specialist was unsatisfactory.

The question of what motivated von Kirschner and Simon in the decisions they made is one which must be answered by evaluating the credibility of their own declarations as to their intent, and also by drawing inferences from what the record shows as to the circumstances they were aware of and the information they had at the time they made the decisions.

Turning first to the matter of the inferences that can be drawn from the circumstances, the commission initially acknowledges that the coincidence in time between CCR's acquiring knowledge of Cook's illness, and CCR's decision to terminate Cook, can be seen as supporting an inference that the former caused the latter. However, relying solely on this post hoc ergo propter hoc reasoning overlooks other circumstances here that strongly support a different inference.

One significant circumstance, in the commission's view, is the fact that Cook was a new employee. She was still in the very early stages of learning what was expected of her in the position, and CCR was still in the very early stages of learning about Cook's capabilities and characteristics. It is less surprising to see an employer develop concerns about an employee's performance when that employee is newly hired, than it is when the employee has been on the job for some time and has apparently been performing to the satisfaction of the employer.

A related circumstance, also significant, has to do with the evident shortcomings in the training and supervision provided to Cook in the first months of her job. As the ALJ found, Cook's supervisor von Kirschner left on a 3-week vacation almost immediately after Cook started on June 7. Then, after von Kirschner returned, she declined Cook's request to attend Cook's first treatment plan meeting with one of her clients. Shortly after this, CCR's President, Dan Simon, left on a 3-week vacation. These and other things detailed by the ALJ could well have caused the employment relationship to "get off on the wrong foot", and to delay or interfere with Cook's acclimatization to the job and CCR's expectations of her. However, these shortcomings in the training and supervision provided to Cook occurred before Cook had become ill and before CCR had any idea that Cook had a disability, and they therefore could not have been things that CCR did because of Cook's disability.

Of particular importance, of course, is the evidence that CCR and its agents had genuine and serious concerns about Cook's performance. The facts concerning these matters are described in detail in the ALJ's Findings of Fact, which the commission is satisfied are well-grounded in the record evidence. By August 18, 1999, von Kirschner had become aware of and had concerns about: Cook's late arrival at her first staff meeting; Foster parent Ruth Kirk's July 21 complaints to von Kirschner about Cook; the fact that von Kirschner did not receive Cook's paperwork for July by the August 5 deadline; the quality of Cook's report writing; whether Cook was making the necessary number of contacts with social workers, parents and therapists on the cases she was handling; foster parent Krystal Ruthe's August 10 complaints to Mary Simon about Cook; and Wood County Social Worker Sandra Reinke's written complaints about Cook in a "Quality Care Inventory" form.

The commission does not doubt, that the complaints from outside parties (foster parents, social worker) were seen as particularly problematic, and that of these the complaints of Social Worker Reinke would have been seen as the most alarming. Reinke had rated Cook's case management services at "2" on a scale of 1 ("dissatisfied") to 5 ("satisfied"). She had noted in connection with this that Cook was "not good at passing on info" and that Cook had "misrepresented some info." Reinke also gave a "2" (on a scale from 1, "poor," to 5, "excellent") to an inquiry asking whether she received adequate, timely and substantive documentation and reports, treatment plans and summaries, noting in answer to the question, "Yes with Christie - not with Darlene [Cook]." In closing comments, Reinke had emphasized that Cook wasn't good at keeping her informed about placement, that Cook's reports were poorly written and she wasn't always given the whole story, that regarding permanency planning review, Cook "shared some information, but nothing of substance," and that Cook later shared information which could have affected her discharge date if it had been shared earlier. (2)

As of August 18, 1999, von Kirschner thus had acquired significant reasons to be concerned that Cook's performance was unsatisfactory. While she had also acquired some information by this point that Cook had some type of illness, the coincidence of these events does not lead the commission to doubt the genuineness of von Kirschner's concerns about Cook's performance.

After August 18, while CCR continued to learn more about Cook's illness, it was also continuing to learn more about Cook's performance as a Clinical Specialist. Thus, there were further complaints about Cook's performance which von Kirschner heard from Kirk around September 1. Also, by September 7, von Kirschner had come to believe based on comparison of the August Clinical Specialist Time Sheets (that Cook's husband made mistaken entries on when he helped her complete them) and the Schlobacher foster family paperwork about August contacts with Cook, that Cook had falsified her time sheet to show contacts that she had not actually had made. Then, by September 8, von Kirschner learned about follow-up contacts from Cook to Reinke about Reinke's criticisms of Cook in the August Quality Care Inventory, which von Kirschner felt were unprofessional and had an improper tone. At around this time, von Kirschner also became aware of Rock County Social Worker Tracy Mayer's August 25 complaints to Cook about inaccuracies in a report Cook filed, and about Cook's testy response to Mayer.

Thus, while von Kirschner was continuing to learn more about Cook's disability during this period, what the commission considers more important as an indicator of von Kirschner's motives is that she was continuing to get more information and reports suggesting that Cook's job performance was unsatisfactory.

The commission is in agreement with the ALJ's finding, that von Kirschner did not believe that there was a relationship between Cook's illness and her unsatisfactory job performance in August, 1999. This is reasonable finding based on this record. The little information that von Kirschner was being provided did not include any indication that Cook's disability would cause her to demonstrate the kinds of performance problems that were the focus of von Kirschner's concern.

Resolving the question of the intent of von Kirschner and Simon should also take into account their declarations as to their motives and state of mind. It is evident from the ALJ's decision, that she accepted the contentions of von Kirschner and Simon, that they were motivated in their decisions by their beliefs that Cook's performance as a Clinical Specialist was unsatisfactory. It is reasonable to assume that at least part of the ALJ's decision in this regard was a result of her assessment of witness credibility based on observation of the demeanor of the witnesses while they were testifying. Cook, von Kirschner and Dan Simon, among others, all testified in person, at length, and on multiple occasions, over the course of the five-day hearing. In such circumstances, the commission is inclined to give weight to the ALJ's assessment of witness credibility.

Cook has raised a few specific arguments about alleged errors made by the ALJ in her findings of fact. Thus, she has argued that the ALJ erred in finding (in Finding of Fact 13) that she went to a court proceeding with Kirk, in finding (in Finding of Fact 39) that Kirk did not talk to von Kirschner about how sick Cook was until early September (Cook contending this occurred on August 25 or 26), in finding (in Findings of Fact 45 and 46) that von Kirschner went to see Simon and wrote a memo to Simon on September 7, and in finding (in Finding of Fact 47) that Tracy Mayer had faxed Cook information about a meeting in July. Cook also argues that CCR never granted her a leave of absence. However, the commission believes that the ALJ's findings are consistent with the record evidence. The ALJ did not err in her finding regarding the granting of a leave of absence, as the ALJ expressly noted that Cook was never told that such a leave was being granted; the ALJ's finding that the leave was "tacitly granted" is a fair characterization of what happened. Concerning the matter of when von Kirschner went to see Simon and wrote him a memo, the commission credits the testimony from von Kirschner that she spoke to Simon on September 7 about her concerns with Cook and that he told her to put her concerns in writing. As to the question of when Kirk talked to von Kirschner about Cook being sick, Kirk testified that she did not remember exactly when this happened, and von Kirschner testified that it occurred on September 1, which is what the ALJ found. Finally, Kirk did testify that she went to a court proceeding in Rock County with Cook. In any event, the commission considers that the overall weight of all of the other evidence supports the inferences made concerning the employer's intent.

The commission would note, however, that it does disagree with one element of the ALJ's decision. In her Memorandum Opinion, she indicated that she believed that Cook's illness in August 1999 contributed in a significant way to her work performance problems - although she also indicated that she was convinced that it was not obvious to von Kirschner that Cook was so ill during that month that she was unable to fulfill her work duties. The commission does not agree, that Cook's disability contributed to her work performance problems. The commission finds the evidence in the record, including the testimonial deposition of Dr. Krumpos, to be inadequate to establish that the types of performance problems that led to the decision to discharge Cook were cause by her ulcerative colitis. The commission notes in this connection, that the ALJ specifically found as a matter of fact that von Kirschner

. . .did not believe that there was a relationship between Cook's illness and her unsatisfactory job performance in August of 1999.

Finding of Fact No. 45. The commission agrees with this finding as to what beliefs von Kirschner had and was motivated by, and it would specifically note that it also agrees with von Kirschner's belief. It is necessary to draw a distinction between the performance problems which were caused by Cook's disability, and the performance problems which were the reason that the decision was made to discharge Cook. The only performance issues which the record establishes were caused by Cook's disability, were absences from work on a number of occasions and possibly limitations on her physical abilities and the number of hours she might be able to work. The performance problems which led to the discharge decision were something else: they were the things (noted above) which had to do with how Cook did her job when she was working.

For all of the foregoing reasons, the commission agrees with the ALJ, that CCR's decision to terminate Darlene Cook was not made because of Cook's disability. Therefore, the commission has adopted and affirmed the decision of the ALJ.

cc: Attorney Harry E. Van Camp

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(1)( Back ) Cook also initially included her supervisor, Alexandria von Kirschner, and CCR's President, Dan Simon, as named respondents in addition to CCR itself. Her complaint was dismissed as against those individually-named respondents by way of a "Preliminary Determination and Order" issued at the same time as the Initial Determination. Cook did not appeal that "Preliminary Determination and Order" and has not otherwise preserved any objection to the dismissal of her complaint as against these individually-named respondents, and the commission therefore treats that issue as having been abandoned and will not address it further herein.

(2)( Back ) The ALJ noted in her decision that these complaints from Reinke were admitted only for the purpose of establishing their effect on von Kirschner. This was the correct analysis of this type of evidence. See, e.g., Jones v. Milwaukee County (LIRC, 04/06/95), acknowledging the appropriateness of considering statements made by third parties offered in evidence not to prove the truth of their contents, but to prove that the person who heard them believed and relied upon them in making a subsequent, challenged employment decision.

uploaded 2003/01/27