2018 WI 76
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP355
COMPLETE TITLE: Wisconsin Bell, Inc.,
Petitioner-Appellant-Petitioner,
v.
Labor and Industry Review Commission and Charles
E. Carlson,
Respondents-Respondents.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 293, 895 N.W.2d 57
PDC No: 2017 WI App 24 - Published
OPINION FILED: June 26, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 1, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Richard J. Sankovitz
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J., dissents, joined by
ABRAHAMSON, J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner-appellant-petitioner, there were briefs
filed by Julia S. Arnold, Laura A. Lindner, Casey M. Kaiser, and
Littler Mendelson, P.C., Milwaukee. There was an oral argument
by Laura A. Linder.
For the respondent-respondent, Labor and Industry Review
Commission, there was a brief filed by Jeffrey J. Shampo, John
L. Brown, and Wisconsin Labor and Industry Review Commission,
Madison. There was an oral argument by John L. Brown and
Jeffrey J. Shampo.
For the respondent-respondent, Charles E. Carlson, There
was a brief filed by Robert M. Mihelich and Law Offices of
Robert M. Mihelich, New Berlin. There was an oral argument by
Robert M. Mihelich.
There was an amicus curiae brief filed on behalf of
Wisconsin Manufacturers & Commerce by Timothy G. Costello, Mark
A. Johnson, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Milwaukee.
There was an amicus curiae brief filed on behalf of
Disability Rights Wisconsin and the Survival Coalition of
Wisconsin by Monica Murphy and Disability Rights Wisconsin,
Milwaukee.
There was an amicus curiae brief filed on behalf of
Wisconsin Employment Lawyers Association by Rebecca L. Salawdeh
and Salawdeh Law Office, LLC, Wauwatosa, with whom on the brief
was Caitlin M. Madden and Hawks Quindel, S.C., Madison.
2
2018 WI 76
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP355
(L.C. No. 2015CV2133)
STATE OF WISCONSIN : IN SUPREME COURT
Wisconsin Bell, Inc.,
Petitioner-Appellant-Petitioner, FILED
v. JUN 26, 2018
Labor and Industry Review Commission and Sheila T. Reiff
Charles E. Carlson, Clerk of Supreme Court
Respondents-Respondents.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DANIEL KELLY, J. Charles E. Carlson says Wisconsin
Bell, Inc. intentionally discriminated against him when it
terminated his employment because of his disability. Using the
"inference method" of finding discriminatory intent, LIRC agreed
and concluded that Wisconsin Bell violated the Wisconsin Fair
Employment Act ("WFEA"). See Wis. Stat. ch. 111, subchapter II
(2015-16).1
1
Because the relevant statutes have not changed during the
pendency of this matter, all subsequent references to the
Wisconsin Statutes are to the 2015-16 version unless otherwise
indicated.
No. 2016AP355
¶2 We granted Wisconsin Bell's petition for review to
determine whether LIRC's version of the "inference method"
impermissibly allows imposition of WFEA liability without proof
of discriminatory intent, and if so, whether that is consistent
with the requirements of Wis. Stat. § 111.322(1).2 Because
resolving that issue implicates the authoritativeness of an
administrative agency's interpretation and application of a
statute, we asked the parties to also address this issue: "Does
the practice of deferring to agency interpretations of statutes
comport with Article VII, Section 2 of the Wisconsin
Constitution, which vests the judicial power in the unified
court system?"
¶3 We conclude that LIRC's version of the "inference
method" is inconsistent with Wis. Stat. § 111.322(1) because it
excuses the employee from his burden of proving discriminatory
intent. We also conclude that the record lacks any substantial
evidence that Wisconsin Bell terminated Mr. Carlson's employment
because of his disability.
¶4 We heard arguments in this case on the same day we
heard Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ___ Wis. 2d ___,
___ N.W.2d ___. There, we decided to end our practice of
deferring to administrative agencies' conclusions of law. Id.,
2
This is a review of a published court of appeals opinion,
Wisconsin Bell, Inc. v. LIRC, 2017 WI App 24, 375 Wis. 2d 293,
895 N.W.2d 57, which reversed the Milwaukee County Circuit
Court, the Honorable Richard J. Sankovitz, presiding, and
remanded with instructions.
2
No. 2016AP355
¶3. However, we also said that, pursuant to Wis. Stat.
§ 227.57(10), we will give "due weight" to an administrative
agency's experience, technical competence, and specialized
knowledge as we consider its arguments. Tetra Tech EC, Inc.,
___ Wis. 2d ___, ¶3. Our Tetra Tech EC, Inc. opinion contains
our analysis of the issue, which we incorporate and apply here.
I. BACKGROUND
A. Mr. Carlson's Disability
¶5 Mr. Carlson suffers from bipolar I disorder, a mental
illness that can affect an individual physically, socially, and
intellectually.3 Symptoms of bipolar disorder include, but are
not limited to, irritability, racing thoughts, and impulsive
behaviors. Bipolar symptoms can ebb and flow, and both internal
and external conditions such as stress, changes in environment,
and conversations can trigger symptoms. Bipolar disorder is
primarily treated with medication and psychotherapy, and during
the relevant time period, Mr. Carlson was receiving treatment
from psychotherapist Edward L. Cohen, LCSW, who began treating
him in 1997, and psychiatrist Mark Siegel, M.D., who began
treating him in 2002.
3
Mr. Carlson has also been diagnosed with dysthymic
disorder and major depressive disorder, which are also mental
impairments. However, because the disability primarily
referenced throughout the record and briefing in regard to Mr.
Carlson's termination is Mr. Carlson's bipolar disorder, we,
too, focus on that disability.
3
No. 2016AP355
¶6 Mr. Carlson can recognize when he is having what he
refers to as a "bipolar episode" or "breakthrough episode."
According to Mr. Cohen, Mr. Carlson's reference to having one of
these "episodes" refers to a short time period in which he
experiences symptoms of mania, which can include racing
thoughts, impulsive behaviors, disregard for consequences, or
symptoms of depression. Through the course of his treatment,
Mr. Carlson has learned various coping techniques he can use to
address his symptoms when they arise. These coping techniques
include going to a separate room without distractions, using
deep breathing exercises, and communicating with others for
support.
B. Mr. Carlson's Wisconsin Bell Employment History
¶7 Mr. Carlson was a Wisconsin Bell employee for
approximately 25 years prior to his termination in May 2011.4 In
his last position with the company he served as a Technical
Support Representative II ("TSR") at the U-verse Tier II call
center. The terms of Mr. Carlson's position were governed by a
Collective Bargaining Agreement ("CBA") between Wisconsin Bell
and the Communication Workers of America Local 4603 (the
"Union").
¶8 As a TSR, Mr. Carlson worked with customers and field
technicians to resolve technical issues related to Wisconsin
4
Wisconsin Bell first employed Mr. Carlson in 1980 and at
some point he left Wisconsin Bell for approximately five or six
years prior to returning.
4
No. 2016AP355
Bell's "U-verse" telephone, internet, and television services.
TSRs generally received calls based on their availability and
could control receipt of calls by making themselves unavailable
by entering certain call-blocking codes——such as for meal and
rest breaks, short health breaks (such as for using the
restroom), and for approved training and staff meetings——into an
automated phone system. When call volume was high, the call
center would declare a "Code Red" status, which meant that all
TSRs were expected to be available to take calls. Wisconsin
Bell's Office Rules stated that inappropriate use of call-
blocking codes to avoid taking customer calls could result in
immediate termination.
¶9 TSRs also had access to an internal instant messaging
system referred to as "Q-chat," which allowed TSRs to
communicate with technicians and co-workers. Although Q-chat
was primarily meant to be used for business purposes, TSRs
occasionally used it for personal reasons such as making lunch
plans with other employees; however, TSRs were subject to
discipline if personal use of Q-chat became disruptive,
excessive, or interfered with customer service.
1. Mr. Carlson's 2010 Suspension
¶10 On February 18, 2010, Jeannette Weber, a Wisconsin
Bell Operations Manager, was remotely reviewing TSRs, including
Mr. Carlson, for quality assurance purposes. While doing so,
she noticed Mr. Carlson had been in the "call wrap" status——a
post-call code that allowed a TSR to briefly make himself
unavailable for incoming calls in order to document interactions
5
No. 2016AP355
from the prior call——for approximately 20 minutes. After
questioning Mr. Carlson about the length of his "call wrap"
status, Mr. Carlson opened his line for incoming calls.
Unbeknownst to him, Ms. Weber continued to observe him remotely,
and over the next ten minutes, she observed Mr. Carlson
deliberately hang up on at least eight customer calls.5 Ms.
Weber informed Jason Carl, the call center's top manager, about
Mr. Carlson's actions, and Mr. Carl thereafter suspended Mr.
Carlson pending termination for customer mistreatment and call
avoidance.
¶11 Mr. Carlson's Union representative requested a review
board hearing to challenge the suspension. At the hearing on
March 4, 2010, Mr. Carlson explained that he disconnected the
calls because he was upset that Ms. Weber had questioned the
length of his "call wrap" status. He also presented letters
from Mr. Cohen and Dr. Siegel, which described his disability
and its symptoms in general terms. Dr. Siegel's letter (dated
March 1, 2010) indicated that it was prepared at Mr. Carlson's
request and explained that Mr. Carlson suffered from "bipolar
disorder-depressed type," that "[b]ipolar disorder is a
condition characterized by extremes of mood that could manifest
5
There are conflicting references in the record as to
whether Mr. Carlson hung up on eight calls or twelve calls
during that time period. It appears the discrepancy is related
to the number of calls Mr. Carlson actually terminated
improperly versus the number of calls Ms. Weber personally
observed him improperly terminate. For the purposes of this
opinion, we need not resolve this discrepancy.
6
No. 2016AP355
in a significant depression with or without problems associated
with anxiety and irritability[,]" and that with bipolar
disorder, "[e]xtremes of moods can occur rather quickly and
[are] often triggered by relatively minor frustrations." Mr.
Cohen's letter (dated February 24, 2010) likewise indicated it
had been prepared for the review board hearing and stated that
Mr. Cohen was seeing Mr. Carlson for individual psychotherapy
services for dysthymia,6 major depressive disorder-recurrent, and
bipolar disorder. Neither letter drew a connection between Mr.
Carlson's bipolar disorder and his actions on February 18, 2010.
Prior to receiving these letters at the hearing, Mr. Carl, the
ultimate decision-maker as to whether to terminate Mr. Carlson's
employment, was unaware that Mr. Carlson suffered from bipolar
disorder.
¶12 Ultimately, Mr. Carlson received a 50-day suspension
without pay. Wisconsin Bell informed Mr. Carlson that if he
needed an accommodation for his condition in the future, he
should request one. As a condition of his return to work, Mr.
Carlson was required to sign a "last chance agreement." This
agreement was in effect from May 1, 2010, through April 30,
2011, and it detailed specific circumstances in which Wisconsin
Bell would have just cause to terminate Mr. Carlson's
employment, including the following:
6
Dysthymia has been defined as "despondency" and "morbid
anxiety and depression accompanied by obsession." Dysthymia,
Webster's Third New International Dictionary 712 (1986).
7
No. 2016AP355
Mr. Carlson understands that in the future, if it
is deemed that he has another Customer Care Issue be
it Customer Care, Customer Mistreat, disconnection of
any incoming or outgoing customer call or any
underlying issue that directly impacts the care of one
of our customers for any reason, the Company will have
just cause to terminate his employment. The Company
may consider mitigating circumstances in making its
dismissal decision but retains sole-discretion [sic]
to determine whether or not the dismissal is
appropriate under the circumstances.
Mr. Carlson understands that if it is determined
that he has lied or otherwise committed a breach of
integrity as demonstrated by violation of Tech
Expectations/work rules, Company policy, Code of
Conduct, or has falsified reasons for absences or
tardies, the Company will have just cause to terminate
his employment. The Company may consider mitigating
circumstances in making its dismissal decision but
retains sole-discretion [sic] to determine whether or
not the dismissal is appropriate under the
circumstances.
Mr. Carlson was eligible to return to work on May 1, 2010, and
he signed the last chance agreement on May 3, 2010.
2. Mr. Carlson's 2011 Termination
¶13 On April 20, 2011——ten days before the last chance
agreement expired——Mr. Carlson informed Wisconsin Bell shortly
before 12:00 p.m. that he was leaving work early due to illness.
About an hour earlier, he learned he had not passed a test that
would have made him eligible for a position in Wisconsin Bell's
collections department. Mr. Carlson became upset, tearful,
unfocused, and depressive. Within a few minutes, he entered the
call-blocking "health code" so he would not receive incoming
customer calls.
¶14 Mr. Carlson then approached his supervisor, Operations
Manager Kristi Reidy, to determine whether he would face
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No. 2016AP355
disciplinary action if he left work early due to illness. Ms.
Reidy told him he should do what he needed to do and advised him
the absence would be treated as an "occurrence" based on the
amount of time he would be absent.7 Although Mr. Carlson
informed her that he "wasn't doing well," he did not otherwise
explain his symptoms or mention his bipolar disorder.
¶15 After speaking with Ms. Reidy, Mr. Carlson returned to
his desk and, while remaining in the health code call-blocking
status, engaged in Q-chats with approximately 15 co-workers——the
majority of which he initiated——over the ensuing 30 minutes.8
The Q-chats primarily related to the collections department
position for which he did not qualify and inquiries as to
whether others who had applied for the position had passed the
exam. In one instance, Mr. Carlson encouraged a co-worker to
enter the health status call-blocking code for the purpose of
checking her test results, saying that doing so was "worth a
7
At the time, Wisconsin Bell counted work absences greater
than two hours and less than two hours differently. An absence
greater than two hours was considered an "occurrence," whereas
an absence less than two hours was considered a "partial
absence." The previous day, April 19, 2011, Mr. Carlson
received a written warning for his eighth partial absence in the
previous twelve months. If the absence Mr. Carlson was
contemplating were to be treated as a partial absence rather
than an occurrence, he could have been subjected to a one-day
suspension without pay.
8
After reviewing Mr. Carlson's Q-chats, Wisconsin Bell
determined that unlike Mr. Carlson, his co-workers had been
performing their job duties and had not been in call-blocking
status during the course of the chats.
9
No. 2016AP355
health break for." In addition to discussing test results with
numerous co-workers, Mr. Carlson also reached out to his Union
steward via Q-chat to confirm that his absence would qualify as
an "occurrence." When his Union steward confirmed that was
correct, Mr. Carlson responded "oh good I'm outta here I didn't
pass the interview for collections." Mr. Carlson suggested in
some of the Q-chat messages that he was upset about not
qualifying for the transfer and that he felt like crying, but he
never mentioned his bipolar disorder.
¶16 Shortly before 12:00 p.m., LaDonna Sneed-Brown, an
Operations Manager, was reviewing TSR availability because the
Tier II Call Center was in Code Red at the time and noticed that
Mr. Carlson had been in health break status——rendering him
unavailable for incoming customer calls——for 38 minutes. After
reaching out to Mr. Carlson via Q-chat to question his status,
Mr. Carlson responded that he "forgot" and that he was "leaving
ill." He then responded "ttyl [talk to you later] and thanks
for being there as one of my lesbian friends." When Ms. Sneed-
Brown questioned his response, Mr. Carlson stated "sorry wrong
window." Afterwards, he notified the help-desk he was leaving
for the day.
¶17 Because of Mr. Carlson's reference to the "wrong
window," Ms. Sneed-Brown suspected he had been engaged in
additional Q-chats while in health code status and reported the
interaction and her suspicion to Ms. Reidy. When asked about
the Q-chats upon returning to work the following day, Mr.
Carlson made no reference to having been ill, using the Q-chats
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No. 2016AP355
as a coping mechanism, or to his absence having been related to
his bipolar disorder.
¶18 After reviewing Mr. Carlson's Q-chats, Mr. Carl
concluded that, based on their tone and content, Mr. Carlson had
not really been ill and that he had simply been "chitchatting"
with his co-workers while in a call-blocking code status. Mr.
Carlson thereafter received a notice of Suspension Pending
Termination dated April 21, 2011, for violating Wisconsin Bell's
zero tolerance policy for inappropriate use of call-blocking
codes to avoid taking customer calls.
¶19 Mr. Carlson again requested a review board hearing,
which occurred on May 26, 2011. At that hearing, Mr. Carlson
said he had used the health code on April 20th because he was
upset after learning he had not qualified for the collections
department position and that he reached out to co-workers via Q-
chat as a coping mechanism. Mr. Carlson's union representative
also explained that Mr. Carlson "doesn't react to things like
everybody else." As he had done at the 2010 review board
hearing, Mr. Carlson presented a letter from Dr. Siegel, this
one dated May 9, 2011, regarding his bipolar disorder. The
letter indicated that Mr. Carlson's "diagnosis remains bipolar
disorder-depressed type" and briefly described increases in some
of Mr. Carlson's medications. After Mr. Carlson presented the
letter, Mr. Carl indicated that they had "seen this before."
Nothing in Dr. Siegel's 2011 letter connected Mr. Carlson's
bipolar disorder to his actions on April 20, 2011.
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No. 2016AP355
¶20 Following the review board hearing, Mr. Carl concluded
that Mr. Carlson had violated the last chance agreement and
Wisconsin Bell's zero tolerance policy when he used the health
code to make himself unavailable for customer calls for 38
minutes. Specifically, he concluded that Mr. Carlson had
engaged in "call avoidance" and committed an integrity violation
when he left work early because he did not believe Mr. Carlson
was being truthful about having been ill. Wisconsin Bell
formally terminated Mr. Carlson's employment on June 7, 2011.
C. Procedural Background
¶21 Mr. Carlson filed two complaints with the ERD. In the
first, ERD Case No. CR201102363, Mr. Carlson alleged his 2010
suspension was because of his disability. In the second, ERD
Case No. CR201200428, Mr. Carlson alleged that Wisconsin Bell
terminated his employment because of his disability and as
retaliation for having filed the first ERD complaint. The two
complaints were consolidated for a multi-day hearing before
Administrative Law Judge James A. Schacht ("ALJ") in 2013.
Prior to beginning the hearing, the ALJ confirmed that Mr.
Carlson was withdrawing his retaliation claim.9
9
Although the ALJ confirmed that Mr. Carlson was
withdrawing his retaliation claim, the ALJ (and later LIRC), for
whatever reason, included a finding in his decision that Mr.
Carlson had failed to establish that Wisconsin Bell had violated
the WFEA by terminating him in retaliation for his having
previously filed a complaint.
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No. 2016AP355
¶22 In an April 25, 2014 decision, the ALJ concluded that
Wisconsin Bell violated the WFEA when it suspended Mr. Carlson
in 2010 and when it terminated Mr. Carlson's employment in 2011.
The ALJ also concluded that Wisconsin Bell could have, but did
not, accommodate Mr. Carlson's disability with respect to his
February 2010 conduct. Accordingly, the ALJ ordered that
Wisconsin Bell reinstate Mr. Carlson with back pay, reasonably
accommodate his disability, and pay Mr. Carlson's attorney's
fees and costs.
¶23 Wisconsin Bell appealed the ALJ's decision to LIRC.
LIRC reversed the ALJ's decision as to Mr. Carlson's suspension
and accommodation claims. It found that although Mr. Carlson's
bipolar disorder caused his conduct (repeatedly hanging up on
customers) and that the suspension was therefore because of his
disability, the conduct violated a uniform rule prohibiting
customer mistreatment and that excusing him for his behavior
would not have been a reasonable accommodation. LIRC further
explained that its conclusion was based on its finding that at
the time Mr. Carlson engaged in the February 2010 conduct, his
supervisor and manager had no knowledge of his disability.
Thus, LIRC dismissed Mr. Carlson's 2011 ERD complaint.
¶24 With respect to the termination claim, however, LIRC
concluded that Wisconsin Bell violated the WFEA. It found that
Mr. Carlson's supervisors and managers were aware of his bipolar
disorder at the time of the April 20th incident, his disability
caused his conduct on that day, he did nothing more than take
"advantage of two benefits of his employment"——use of the health
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No. 2016AP355
code and taking a partial sick day——that "were available to any
other sick employee," and therefore he "did not violate any
attendance or performance requirement." But it also found that
Mr. Carl did not believe Mr. Carlson's claim on April 20th that
he used the health code and left for the day because he was
sick: "Based on their own interpretation of Carlson's Q-chats,
they [Mr. Carlson's supervisors] concluded that Carlson was not
sick, and they terminated his employment for faking an illness
to get out of work." Accordingly, LIRC affirmed the ALJ's order
that Wisconsin Bell reinstate Mr. Carlson with back pay and pay
Mr. Carlson's attorney's fees and costs.
¶25 In the memorandum opinion accompanying its decision,
LIRC explained the rationale it used to conclude Wisconsin Bell
violated the WFEA. It said that "if an employer discharges a
disabled employee for some unsatisfactory conduct, and the
employee is able to show that his or her conduct was caused by a
disability, the discharge was 'in legal effect' because of the
employee's disability." LIRC said this analytical device allows
the decision-maker to shift his focus "from whether the
disability caused the discharge to whether the disability caused
the unsatisfactory conduct."
¶26 Wisconsin Bell petitioned the circuit court for review
of LIRC's decision regarding the termination of Mr. Carlson's
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No. 2016AP355
employment.10 In a very thoughtful written decision, the circuit
court concluded that it is reasonable to infer intent from
surrounding circumstances, but decided LIRC's findings and
analysis were incomplete because it had failed to address
whether Wisconsin Bell knew at the time it terminated Mr.
Carlson that his conduct was caused by his bipolar disorder. So
it remanded the matter to LIRC for further proceedings.
¶27 Wisconsin Bell appealed the circuit court's order.
The court of appeals determined that great weight deference to
LIRC's interpretation was appropriate11 and concluded that LIRC's
use of the "inference method" was reasonable, but that the
employer must know of the causal link between the disability and
the conduct on which the employer based its employment action.
Wis. Bell, Inc. v. LIRC, 2017 WI App 24, ¶¶45-46, 375
Wis. 2d 293, 895 N.W.2d 57. The court of appeals concluded,
contrary to the circuit court, that there was sufficient
evidence known to Wisconsin Bell at the time it terminated Mr.
Carlson's employment that his behavior on April 20th was caused
10
Mr. Carlson did not seek review of LIRC's denial of his
claim related to Wisconsin Bell's suspension decision (ERD Case
No. CR201102363). Therefore, the only matter before the court
is ERD Case No. CR201200428, which addresses Wisconsin Bell's
termination of Mr. Carlson's employment.
11
See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661,
539 N.W.2d 98 (1995) ("Once it is determined . . . that great
weight deference is appropriate, we have repeatedly held that an
agency's interpretation must then merely be reasonable for it to
be sustained."), overruled by Tetra Tech EC, Inc. v. DOR, 2018
WI 75, ¶¶82-84, ___ Wis. 2d ___, ___ N.W.2d ___.
15
No. 2016AP355
by his disability. Id., ¶¶54-59. Accordingly, it reversed the
circuit court and directed it to enter an order affirming LIRC's
decision. Id., ¶64. We granted Wisconsin Bell's petition for
review.
II. STANDARD OF REVIEW
¶28 In cases involving administrative agencies we review
the decision of the agency, not the decision of the court of
appeals or circuit court. Estate of Szleszinski v. LIRC, 2007
WI 106, ¶22, 304 Wis. 2d 258, 736 N.W.2d 111. Judicial review
of LIRC's decisions is governed by Wis. Stat. § 111.395, which
provides that "[f]indings and orders of the commission under
this subchapter are subject to review under ch. 227."
¶29 We review an administrative agency's interpretation
and application of statutes de novo. Tetra Tech EC, Inc., ___
Wis. 2d ___, ¶84 ("[W]e will review an administrative agency's
conclusions of law under the same standard we apply to a circuit
court's conclusions of law——de novo."). Consequent upon that
review, "[t]he court shall set aside or modify the agency action
if it finds that the agency has erroneously interpreted a
provision of law and a correct interpretation compels a
particular action, or it shall remand the case to the agency for
further action under a correct interpretation of the provision
of law." Wis. Stat. § 227.57(5).
¶30 Our review of LIRC's findings of fact is limited: "If
the agency's action depends on any fact found by the agency in a
contested case proceeding, the court shall not substitute its
judgment for that of the agency as to the weight of the evidence
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No. 2016AP355
on any disputed finding of fact." Wis. Stat. § 227.57(6). We
will set aside or remand a matter to the agency based on a
factual deficiency only if "the agency's action depends on any
finding of fact that is not supported by substantial evidence in
the record." Id.; see also Crystal Lake Cheese Factory v. LIRC,
2003 WI 106, ¶27, 264 Wis. 2d 200, 664 N.W.2d 651. "Substantial
evidence does not mean a preponderance of evidence. It means
whether, after considering all the evidence of record,
reasonable minds could arrive at the conclusion reached by the
trier of fact." Milwaukee Symphony Orchestra, Inc. v. DOR, 2010
WI 33, ¶31, 324 Wis. 2d 68, 781 N.W.2d 674.
III. ANALYSIS
A. Employment Discrimination Under the WFEA
¶31 An employer engages in employment discrimination if it
terminates a person from employment "because of any basis
enumerated in s. 111.321." Wis. Stat. § 111.322(1). As
applicable here, Wis. Stat. § 111.321 prohibits an employer from
engaging in employment discrimination on the basis of a
"disability." Id. However, an employer may nonetheless
terminate a person's employment if "the disability is reasonably
related to the individual's ability to adequately undertake the
job-related responsibilities of that individual's employment."
See Wis. Stat. § 111.34(2)(a).
¶32 Mr. Carlson's claim of employment discrimination under
Wis. Stat. § 111.321 can succeed only if the following three
propositions are true: (1) he has a disability; (2) Wisconsin
Bell terminated his employment "because of" that disability; and
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No. 2016AP355
(3) Wisconsin Bell had no justification under Wis. Stat.
§ 111.34 for terminating his employment. See Crystal Lake
Cheese Factory, 264 Wis. 2d 200, ¶67 (citing Target Stores v.
LIRC, 217 Wis. 2d 1, 9-10, 576 N.W.2d 545 (Ct. App. 1998)); see
also Brown Cty. v. LIRC, 124 Wis. 2d 560, 572-73, 369 N.W.2d 735
(1985).12 The parties agree that Mr. Carlson has a disability
cognizable by § 111.321. Therefore, our analysis begins with
the second proposition.
¶33 Under the disparate treatment theory, an employer
engages in employment discrimination contrary to Wis. Stat.
§ 111.321 if it "treats some people less favorably than others
because they belong to a protected class." Racine Unified Sch.
Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707 (Ct. App.
1991). To be actionable, the employer must have acted with
discriminatory intent. Id. ("[A] complainant asserting a
disparate treatment theory must prove discriminatory intent to
prevail, . . . .").
B. LIRC's Intentional Discrimination Analysis
¶34 LIRC says it may use either of two methods in
determining whether Wisconsin Bell intentionally terminated Mr.
Carlson's employment "because of" his disability. The first
12
Mr. Carlson bears the burden of proof with respect to the
first two propositions; with respect to the third proposition,
Wisconsin Bell bears the burden of proving it had a legally-
cognizable justification for the adverse employment action. See
Brown Cty. v. LIRC, 124 Wis. 2d 560, 572-73, 369 N.W.2d 735
(1985); see also Crystal Lake Cheese Factory v. LIRC, 2003
WI 106, ¶67, 264 Wis. 2d 200, 664 N.W.2d 651.
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No. 2016AP355
method asks whether the employer held "actual discriminatory
animus against an employee because that employee was an
individual with a disability[.]" Maeder v. Univ. of Wisconsin-
Madison, ERD Case No. CR200501824 (LIRC June 28, 2013). The
alternative method, known as the "inference method," finds
intent to discriminate when an employer bases its adverse action
on "a problem with that employee's behavior or performance which
is caused by the employee's disability." See id. ("If an
employee is discharged because of unsatisfactory behavior which
was a direct result of a disability, the discharge is, in legal
effect, because of that disability.").
¶35 LIRC used the inference method in Mr. Carlson's case,
and described it as follows:
[T]he commission determines the employer's intent by
inference based on the surrounding circumstances. Its
analysis begins by stating a logical chain of
causation: 1) if an employee's disability causes
certain behavior, and 2) the employer takes action
against the employee on the basis of that behavior,
then 3) the employer has taken action against the
employee because of the disability.
Inferring discriminatory intent from circumstantial evidence is,
of course, quite common. See, e.g., Stern v. Thompson & Coates,
Ltd., 185 Wis. 2d 220, 236-37, 517 N.W.2d 658 (1994) (stating
that a person's state of mind "must be inferred from the acts
and statements of the person, in view of the surrounding
circumstances." (citation and quotation marks omitted)). The
question, therefore, is whether LIRC's version of the "inference
19
No. 2016AP355
method" preserves the employee's burden of proving an employer's
intent to discriminate against him because of his disability.
¶36 LIRC assures us it has always required "proof of an
employer's discriminatory state of mind . . . before liability
could attach," and cites several of its cases to illustrate its
commitment to this principle. The citations, however, do not
support the proposition. In Conley v. DHSS, Case No. 84-0067-
PC-ER (Wis. Personnel Comm'n June 29, 1987), the Personnel
Commission13 said the employer cannot defeat the "because of"
element of the employee's claim "simply by stating that its
motivation for discharging the complainant was his inability to
perform his duties where any such inability has resulted
directly from the handicapping condition." Although the causal
link between Conley's disability and his inability to perform
his duties was obvious to all concerned, nothing in the
Personnel Commission's analysis actually required the employee
to prove the employer was aware of the link. That is, the
Personnel Commission's analysis would allow an employee to prove
discrimination simply by demonstrating he had a disability and
he was terminated because of behavior caused by that disability.
The same is true of Bell-Merz v. Univ. of Wis. Sys.
(Whitewater), Case. No. 90-0138-PC-ER (Wis. Personnel Comm'n
Mar. 19, 1993), where the employer knew of the causal connection
between disability and conduct resulting in termination, but
13
LIRC inherited part of the Personnel Commission's duties
after it was abolished in 2003.
20
No. 2016AP355
nothing in the analysis required that it know of the
connection.14 And Stroik v. Worzalla Publishing Co., ERD Case
No. CR200002461 (LIRC July 16, 2004), did not even attempt to
address whether discriminatory intent requires an employer to
know the connection between an employee's disability and the
conduct for which his employment is terminated. In fact, LIRC
did not cite a single case in which it required proof that the
employer knew the employee's disability caused his conduct.
¶37 LIRC approached the proposition most closely when it
cited Volkmann, in which it found no discriminatory intent
because the employer had never been informed that the employee
had a disability. Volkmann v. Colonial Mgmt. Grp. LP, ERD Case
No. CR201102513 (LIRC Jan. 30, 2015). That is a necessary, but
not sufficient, step in showing that it always requires proof of
intent before finding liability. Ignorance of the employee's
disability must certainly foreclose a finding of intentional
discrimination. But that still leaves the question of whether
LIRC would require the employee to prove the employer knew of
the connection between a disability and the conduct for which it
terminated employment. That is the question before the court,
and Volkmann provides no answer. Similarly, in Wester v.
14
See also Stelloh v. Wauwatosa Sav. Bank, ERD Case No.
CR200700340 (LIRC June 19, 2012) (same); Crivello v. Target
Stores, ERD Case No. 9252123 (LIRC Aug. 14, 1996), aff'd sub nom
Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App.
1998) (same); Staats v. Ctys. of Sawyer and Bayfield, ERD Case
No. 9500906 (LIRC Oct. 27, 1997) (same).
21
No. 2016AP355
Charter Media/Communications, LIRC said an employee may prove
intentional discrimination by showing "the alleged
discriminators would have had reason to be aware that she was
disabled, or perceived her to be disabled, at the time the
allegedly discriminatory actions were taken." ERD Case No.
CF200003872 (LIRC Oct. 15, 2004). But it said nothing about any
requirement that the employer know of the connection between the
disability and the employee's conduct.
¶38 LIRC has been cautioned before about the significance
of the causal relationship between an employee's disability and
his conduct when establishing discriminatory intent under the
inference method. Almost two decades ago, the court of appeals
reviewed a case in which LIRC "declared, without further
discussion, that a firing for misconduct equates to a firing
because of the underlying causal disability." Wal-Mart Stores,
Inc. v. LIRC, 2000 WI App 272, ¶28, 240 Wis. 2d 209, 621
N.W.2d 633. The court of appeals delicately questioned whether
this rationale was sufficient for a finding of intentional
discrimination:
The question of whether a firing for misconduct caused
by a disability equates, as a matter of law, to a
firing because of disability, is of some importance,
and it involves significant policy implications. We
therefore invite the commission on remand to expand on
the rationale for its adoption of the Personnel
Commission's interpretation, which is the subject of
some disagreement among federal courts.
22
No. 2016AP355
See id. The Wal-Mart Stores, Inc. matter settled before the
agency could address it on remand, so there was no occasion to
explore the question further.
¶39 We pick up where Wal-Mart Stores, Inc. left off. We
agree that the transitive nature of LIRC's inferential
methodology is an important matter. In fact, the methodology
cannot function without it. LIRC says this is where its
analysis of discriminatory intent begins, but it also appears to
be where it ends. And it is a very premature end. Because it
goes no further, LIRC's methodology actually requires a double
inference to reach its goal, and only one of them is
justifiable. The first is that, when an employer observes
conduct caused by an employee's disability, the employer knows
of the causal connection. The other is that, in terminating
employment because of the employee's conduct, the employer is
actually terminating him because of his disability.
¶40 The first inference presents an insuperable problem
for LIRC's methodology. In the search for discriminatory intent
via the inferential method, there is, quite literally, no
evidence more important than the employer's knowledge of the
causal connection between conduct and disability. This
knowledge is what allows us to logically transfer the employer's
intent from the former to the latter. If Wisconsin Bell did not
know of this connection, the most that could be said of its
state of mind would be that it intended to terminate Mr.
Carlson's employment because of his conduct. The WFEA does not
forbid this. It forbids Wisconsin Bell from terminating his
23
No. 2016AP355
employment because of his disability. Excusing the employee
from proving the employer's knowledge of the causal connection
allows LIRC to find intentional discrimination where there is no
proof of it.
¶41 For these reasons, LIRC's double-inference methodology
is structurally flawed. We conclude that an employer does not
engage in intentional discrimination when it bases an adverse
employment action on the employee's conduct unless the employee
proves the employer knew his disability caused his conduct.15
¶42 As we considered LIRC's arguments concerning its
double-inference methodology, we gave "due weight" to its
"experience, technical competence, and specialized knowledge."
See Wis. Stat. § 227.57(10); see also Tetra Tech EC, Inc., ___
Wis. 2d ___, ¶¶77-79, 84. The factors informing how much weight
is due include the considerations we previously used in deciding
whether we would defer to an administrative agency's conclusions
15
Justice Ann Walsh Bradley endorses LIRC's double-
inference methodology because without it, she says, the WFEA
loses its "teeth." Dissent, ¶¶55, 63. She says this approach
"reasonably equates discrimination against the symptoms of a
disability with discrimination against a person who has a
disability." Id., ¶66. The WFEA protects individuals against
discrimination because of a disability; Justice Bradley wants to
protect disabilities against discrimination because of a
symptom. The two are not the same, and only the former may be
found in our statutes. Allowing one to stand in for the other
could make an employer liable for intentionally discriminating
against a person because of his disability without even knowing
he has one. There is quite certainly nothing reasonable about
that. And that is why we cannot countenance LIRC's double-
inference methodology.
24
No. 2016AP355
of law, such as: "(1) whether the legislature made the agency
responsible for administering the statute in question; (2) the
length of time the administrative agency's interpretation has
stood; (3) the extent to which the agency used its expertise or
specialized knowledge in developing its position; and (4)
whether the agency's perspective would enhance uniformity and
consistency of the law." Tetra Tech EC, Inc., ___ Wis. 2d ___,
¶79.
¶43 We recognize that the legislature charged LIRC with
deciding contested cases under the WFEA, and it certainly
handles many such cases every year.16 Additionally, we recognize
the importance of "uniformity and consistency" in the
application of the WFEA. Employers and employees alike need a
stable framework within which they can manage their
relationships. However, the need for stability and LIRC's long-
standing practice do not persuade us that its double-inference
methodology is consistent with the WFEA.
C. Wisconsin Bell's Knowledge
¶44 The inferential method of proving discriminatory
intent, properly formulated, requires that we now address what
Wisconsin Bell knew about the causal link between Mr. Carlson's
behavior and his disability. Specifically, we are interested in
16
Statistics regarding the number of appeals LIRC receives
and the number of decisions issued per year can be found at
http://lirc.wisconsin.gov/lirc_stats.htm (last visited June 5,
2018). Over the past five years (2013-2017), LIRC has issued an
average of 87 equal rights decisions per year.
25
No. 2016AP355
what Wisconsin Bell knew about that subject at the time it
terminated Mr. Carlson's employment. This is the necessary
temporal point of reference, of course, because our project here
is to discover the intent behind Wisconsin Bell's termination
decision. One cannot retroactively intend something, so the
intent must precede or accompany the act.17 Therefore, what
Wisconsin Bell (or the ALJ or LIRC, for that matter) learned
about the causal connection after the termination is of no
import because only contemporaneous knowledge can account for
the intent that motivates an action.
¶45 When Wisconsin Bell terminated Mr. Carlson's
employment, here is what it knew:
At the review hearing related to the incident of
February 18, 2010, Mr. Carlson claimed that his
disability caused him to hang up on customer
calls.
Dr. Siegel's letter of March 1, 2010, said Mr.
Carlson suffers from "bipolar disorder-depressed
type," which is "characterized by extremes of
mood that could manifest in a significant
depression with or without problems associated
with anxiety and irritability[,]" and that with
bipolar disorder, "[e]xtremes of moods can occur
17
Black's Law Dictionary defines "intent" as "[t]he state
of mind accompanying an act, esp[ecially] a forbidden act."
Intent, Black's Law Dictionary (10th ed. 2014). Likewise,
Webster's definition of "intent" includes "the state of mind or
mental attitude with which an act is done" and "the design or
purpose to commit any wrongful . . . act that is the natural and
probable consequence of other voluntary acts or conduct."
Intent, Webster's Third New International Dictionary 1176
(1986).
26
No. 2016AP355
rather quickly and [are] often triggered by
relatively minor frustrations."
Mr. Cohen's letter, also prepared for the review
board hearing, said he was seeing Mr. Carlson for
individual psychotherapy services for dysthymia,
major depressive disorder-recurrent, and bipolar
disorder.
At the review hearing related to the incident on
April 20, 2011, Mr. Carlson maintained that he
had become upset when he learned he had failed
the collections test and put himself in health
code because he was too upset to take calls. He
said that he Q-chatted as a way to get support
from his co-employees. As with the prior
incident, Mr. Carlson said his disability caused
his conduct.
Mr. Carlson offered a new letter from Dr. Siegel
to support his claim. The letter said that Mr.
Carlson continued to be diagnosed as bipolar,
depressed type, and it summarized recent
medication changes.
¶46 The sum total of information at Wisconsin Bell's
disposal consisted of Mr. Carlson's claim of causation and three
letters confirming his bipolarism——none of which mentioned any
causal nexus between his disability and conduct. The
consequences of bipolarism are not matters of common knowledge.
27
No. 2016AP355
Because of the amorphous nature of this disability,18 an
employee's bare assertion of causality cannot be credited as
authoritative. To conclude otherwise would allow Mr. Carlson to
unilaterally bring any of his misbehavior under the protective
cloak of the WFEA. As LIRC has previously recognized, this is
neither practical nor rational. See, e.g., Maeder, ERD Case No.
CR200501824 (LIRC June 28, 2013) ("[I]t is clear that it cannot
simply be presumed that every act of bad behavior engaged in by
a person with a mental disorder is caused by that mental
disorder."). And as the circuit court aptly observed, "[i]f an
employer isn't aware that certain behavioral or performance
problems are symptomatic of a given disability, it hardly seems
reasonable to accuse the employer of being motivated by the
underlying disability."
¶47 The letters Mr. Carlson presented do not even purport
to put Wisconsin Bell on notice of the connection between Mr.
Carlson's disability and his behavior at work. Doctor Siegel's
letter of March 1, 2010, says "I am writing this letter at your
18
Dr. Siegel said "[b]ipolar disorder is a condition
characterized by extremes of mood that could manifest in a
significant depression with or without problems associated with
anxiety and irritability[,]" and that with bipolar disorder,
"[e]xtremes of moods can occur rather quickly and [are] often
triggered by relatively minor frustrations." The amorphousness
of this description is why expert testimony is needed to
determine whether "an individual's bad behavior is caused by a
mental disorder from which the individual suffers." Maeder v.
Univ. of Wisconsin-Madison, ERD Case No. CR200501824 (LIRC June
28, 2013) (citing Wal-Mart Stores, Inc. v. LIRC, 2000
WI App 272, ¶16, 240 Wis. 2d 209, 621 N.W.2d 633).
28
No. 2016AP355
request to identify your current diagnosis." So not only does
the letter not describe a causal connection regarding the events
of February 18, 2010, Mr. Carlson apparently did not ask him to
say anything about that subject. This omission is especially
significant because Dr. Siegel knew how Mr. Carlson was going to
use the letter. He wrote: "I understand you will be passing
this letter along to your employer in a current work-related
problem." And yet the letter says not a word about any
causative link.
¶48 Mr. Cohen's four-sentence letter of February 24, 2010,
is no more enlightening than Dr. Siegel's missive. It, too,
identified several diagnoses and acknowledged that Mr. Carlson
had requested the letter for use in the upcoming review board
hearing. As with Dr. Siegel's letter, it says nothing about any
connection between Mr. Carlson's disability and his conduct on
February 18, 2010 and April 20, 2011.
¶49 Doctor Siegel provided his second letter after the
events of April 20, 2011. He said he was "writing to update you
[Mr. Carlson] on your treatment, condition and diagnosis and
following up on my previous letter to you on 03/01/2010." The
update was that his diagnosis remained as it was before.19
19
Notwithstanding the letters' enigmatic generalities,
Justice Ann Walsh Bradley claims "these letters precisely
describe the actions that ultimately led to Carlson's
termination." Dissent, ¶73. There was, quite literally,
nothing precise about these letters, and she offers no quote to
suggest otherwise.
29
No. 2016AP355
¶50 Therefore, when Wisconsin Bell terminated Mr.
Carlson's employment, it knew nothing more than that its
employee claimed his bipolarism caused his conduct. LIRC's
memorandum opinion persuasively (albeit unintentionally)
demonstrates that this sparse evidence could not have informed
Wisconsin Bell that Mr. Carlson's conduct was the result of his
bipolarism. LIRC conceded that spotting such a connection is
beyond the ken of laymen when it acknowledged that the evidence
"is technical and scientific and calls for expert testimony."
And even with the benefit of hindsight, expert testimony, and a
three-day hearing, the causal connection can best be described
as questionable. LIRC admits that "neither Cohen nor Dr. Siegel
gave unequivocal opinions that Carlson's behavior on February
18, 2010 was caused by his mental illness." The most it could
say was that "his behavior was outside his normal pattern of
behavior, and was consistent with several of the symptoms of his
illness." "Consistent with" is the language of correlation, not
causation. Nonetheless, LIRC found causality in both incidents.
¶51 With all the benefit of hindsight, LIRC's belief that
there is substantial evidence of a causal connection between Mr.
Carlson's disability and his conduct may be reasonable. But
that is not the issue we must address. Our task here is to
determine whether there is substantial evidence in the record
that Wisconsin Bell, not LIRC, knew that Mr. Carlson's
bipolarism caused his conduct. And we must answer that inquiry
as of the date Wisconsin Bell terminated Mr. Carlson's
employment, not retrospectively with the benefit of a three-day
30
No. 2016AP355
hearing and the testimony of two experts. Based on the record
before us, and for the reasons described above, we conclude
there is no substantial evidence that Wisconsin Bell knew Mr.
Carlson's disability caused his conduct on April 20, 2011.20
¶52 For the sake of completeness, we note that LIRC
addressed the state of Wisconsin Bell's knowledge as of April
20, 2011, but cryptically, and not for the purpose of
discovering discriminatory intent. After an employee proves the
employer intentionally discriminated against him because of his
disability, the employer may nonetheless avoid liability by
proving the disability prevented the employee from adequately
undertaking his job-related responsibilities. See Wis. Stat.
§ 111.34(2)(a).21 The inquiry under § 111.34(2)(a), however,
does not commence until after there is a conclusion that the
20
This does not require us to set aside any of LIRC's
factual findings because, in determining whether Mr. Carlson
established that Wisconsin Bell intentionally discriminated
against him because of his disability, it made no findings at
all about whether Wisconsin Bell knew of the causal connection
between the disability and his conduct.
21
Wisconsin Stat. § 111.34(2)(a) provides:
Notwithstanding s. 111.322, it is not employment
discrimination because of disability to refuse to
hire, employ, admit or license any individual, to bar
or terminate from employment, membership or licensure
any individual, or to discriminate against any
individual in promotion, compensation or in terms,
conditions or privileges of employment if the
disability is reasonably related to the individual's
ability to adequately undertake the job-related
responsibilities of that individual's employment,
membership or licensure.
31
No. 2016AP355
employer engaged in intentional discrimination pursuant to Wis.
Stat. § 111.322. See Target Stores, 217 Wis. 2d 1 at 9-10. At
that stage of the analysis, the employer has the burden of
proving it satisfied the terms of § 111.34(2)(a). Target
Stores, 217 Wis. 2d 1 at 9-10. LIRC said Wisconsin Bell could
not have had a good-faith belief in its need to terminate Mr.
Carlson's employment under this provision because the evidence
available to it demonstrated his disability caused his conduct:
"[I]t was not an act of good faith for [Wisconsin Bell] to
proceed with termination on the assumption that Carlson was
lying about his ability to work on April 20th, in the face of
the information that Carlson had presented to them from his
doctor and therapist about his bipolar disorder as a cause for
his conduct." Even if LIRC had included this in the "intent to
discriminate" part of its analysis, it would not change our
conclusion. The information provided by Mr. Carlson's doctor
and therapist did not mention "his bipolar disorder as a cause
for his conduct." It said nothing about his conduct at all,
much less provide a link between it and his disability.
¶53 Wisconsin Bell terminated Mr. Carlson's employment
because he violated the "last chance agreement" when he used the
health code to avoid taking customer calls, engaged in personal
conversations with his co-workers on the Q-Chat system, and left
work before he finished his shift. There is no substantial
evidence that Wisconsin Bell knew that Mr. Carlson's disability
caused this conduct. Therefore, Wisconsin Bell did not
32
No. 2016AP355
discriminate against Mr. Carlson "because of" his disability in
violation of Wis. Stat. § 111.322. The case must be dismissed.22
IV. CONCLUSION
¶54 We hold that LIRC may not conclude that a violation of
Wis. Stat. § 111.322(1) occurred by using the inference method
of proving intentional discrimination unless the employee proves
the employer knew his disability caused the conduct on which the
employer based an adverse employment decision. And the employer
must have had this knowledge at the time it made the decision.
Because the record lacks substantial evidence that Wisconsin
Bell knew Mr. Carlson's disability caused his conduct on April
20, 2011, we reverse the court of appeals and dismiss Mr.
Carlson's complaint.
By the Court.—The decision of the court of appeals is
reversed and the case is dismissed.
22
We need not reach the parties' discussion of whether
Wisconsin Bell failed to reasonably accommodate Mr. Carlson's
disability under Wis. Stat. § 111.34(1)(b). That issue does not
arise until the employee establishes his employer intentionally
discriminated against him because of his disability in violation
of § 111.322. Mr. Carlson has not made that showing, and so
this issue is moot. See Target Stores, 217 Wis. 2d at 9-10; see
also Hutchinson Tech, Inc. v. LIRC, 2004 WI 90, ¶32, 273
Wis. 2d 394, 682 N.W.2d 343; Crivello, ERD Case No. 9252123
(LIRC Aug. 14, 1996) ("Obviously, an employer is not required to
raise the issue of accommodation if the employer is unaware of
an employe[e]'s handicap . . . .").
33
No. 2016AP355.awb
¶55 ANN WALSH BRADLEY, J. (dissenting). The majority
upholds Charles Carlson's termination, concluding the record
lacks substantial evidence that the termination was "because of"
Carlson's disability. In doing so, it removes the teeth from
the Wisconsin Fair Employment Act's protections and creates an
unworkable standard. By tossing out the long established
inference method of proof in employment discrimination cases,
the majority places an untenable burden on all employees with
disabilities, and those with mental health disabilities in
particular.
¶56 Thus, the majority becomes the only entity reviewing
this matter that discards the inference method and concludes
that the termination is lawful. It alone declines to heed the
warning that "if the law fails to protect the manifestations of
[a] disability, there is no real protection in the law because
it would protect the disabled in name only." Gambini v. Total
Renal Care, Inc., 486 F.3d 1087, 1095 (9th Cir. 2007).
¶57 I would heed that warning. Because I agree with the
administrative law judge who upheld the use of the inference
method and determined that Carlson was wrongfully terminated;
and with a unanimous LIRC that applied the inference method,
determining that Wisconsin Bell wrongfully terminated Carlson;
and with the circuit court that concluded that use of the
inference method was reasonable; and with the unanimous court of
appeals that embraced the long standing use of the inference
1
No. 2016AP355.awb
method and agreed with LIRC that Carlson was wrongfully
terminated, I respectfully dissent.
I
¶58 Prior to his termination, Carlson worked for Wisconsin
Bell for approximately 25 years. Majority op., ¶7. During this
time, Carlson made his employer aware of his bipolar disorder,
providing letters from his doctors. Id., ¶11.
¶59 The letters identified Carlson's diagnosis as "bipolar
disorder-depressed type." Id. They also indicated that
"[b]ipolar disorder is a condition characterized by extremes of
mood that could manifest in a significant depression with or
without problems associated with anxiety and irritability" and
that "[e]xtremes of moods can occur rather quickly and [are]
often triggered by relatively minor frustrations." Id.
¶60 At the time of the events giving rise to his claim,
Carlson worked in a Wisconsin Bell call center as a Technical
Service Representative. Wisconsin Bell terminated Carlson's
employment after Carlson entered a call-blocking health code1
subsequent to learning that he had not passed a test required
for a position in another department. Id., ¶¶15-20. While he
1
As the majority opinion explains, Technical Service
Representatives generally receive calls based on their
availability. Majority op., ¶8. They can, however, control
receipt of calls by making themselves unavailable by entering
certain call-blocking codes, such as for meal and rest breaks,
short health breaks, and training and staff meetings. Id.
Improper use of call blocking codes to avoid taking calls could
result in immediate termination. Id.
2
No. 2016AP355.awb
was in the health code status, Carlson "Q-chatted"2 with co-
workers. Id., ¶¶15-16. Carlson asserted that he entered the
health code because he was upset after learning of his test
result and that he reached out to co-workers as a coping
mechanism. Id., ¶19.
¶61 Carlson brought an employment discrimination claim on
the basis of disability. An administrative law judge reinstated
Carlson and LIRC upheld that decision. Id., ¶24. In doing so,
LIRC applied the "inference method" of determining
discriminatory intent. Pursuant to this method, "if an employer
discharges a disabled employee for some unsatisfactory conduct,
and the employee is able to show that his or her conduct was
caused by a disability, the discharge was 'in legal effect'
because of the employee's disability." Id., ¶25.
¶62 The majority concludes that LIRC's "inference method"
is inconsistent with Wis. Stat. § 111.322(1)3 because it excuses
the employee from the burden of proving discriminatory intent.
Majority op., ¶3. It further determines that the record lacks
substantial evidence that Wisconsin Bell terminated Carlson's
employment because of his bipolar disorder. Id.
2
"Q-chat" is an internal instant messaging program used by
Wisconsin Bell.
3
Wis. Stat. § 111.322(1) provides in relevant part: "[I]t
is an act of employment discrimination to . . . terminate from
employment . . . any individual . . . because of any basis
enumerated in s. 111.321." Among the bases enumerated in
§ 111.321 is "disability."
3
No. 2016AP355.awb
II
¶63 The majority removes the teeth from the Wisconsin Fair
Employment Act's protections. To succeed on his disability
discrimination claim, Carlson must demonstrate that he has a
disability, that he received an adverse action from his
employer, and that the adverse action was "because of" his
disability. Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, ¶9,
240 Wis. 2d 209, 621 N.W.2d 633; Target Stores v. LIRC, 217
Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998). Additionally, the
employer must have acted with discriminatory intent. Racine
Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707
(Ct. App. 1991).
¶64 LIRC's inference method of demonstrating
discriminatory intent is based on the premise that the symptoms
of a disability are inseparable from the disability itself. If
the employee is intentionally discriminated against because of a
symptom of a disability, that is the same as intentional
discrimination on the basis of the disability.
¶65 This premise is reasonable and correct. As amicus
Disability Rights Wisconsin and the Survival Coalition of
Wisconsin persuasively explain by way of analogy, "[e]pilepsy
and seizure go hand-in-hand." If an employer terminates an
employee with epilepsy for having a seizure, that employee is in
effect being terminated "because of" having epilepsy. Likewise
here, Carlson was terminated because of his reaction to learning
he did not pass a test and the steps he took to reach out to
coworkers for support as a means of coping with his bipolar
4
No. 2016AP355.awb
disorder. The termination was "because of" his bipolar
disorder.4
¶66 Contrary to the majority's assertion, the inference
method does not relieve the employee of the burden to prove
intent. Rather, it reasonably equates discrimination against
the symptoms of a disability with discrimination against a
person who has a disability. See Gambini, 486 F.3d at 1093.
The employee still must show a causal link between the
manifested symptoms and the adverse action.
¶67 The inference method is not overly restrictive on
employers. An employer can still terminate the employee if he
"cannot 'adequately undertake the job-related
responsibilities.'" Target Stores, 217 Wis. 2d at 10 (quoting
Wis. Stat. § 111.34(2)(a)). The majority, however, errs in the
other direction. Its restriction on the use of the inference
method gives an employer carte blanche to fire an employee
4
LIRC's finding of fact number 24 aptly describes this
causal link:
Carlson's mood and his inability to work on April 20,
2011 upon learning that he failed the collections test
were caused by his bipolar disorder. The Q-chats he
engaged in were reflective of his mood disorder, and
were consistent with his psychotherapist's
recommendation that he reach out to others for support
as a means of coping with his mood. The fact that he
used slang, including some humor, and checked on the
consequences of his taking a medical leave, were not
inconsistent with the conclusion that his mood and
inability to work were a manifestation of his mental
illness. He was unable to work because of symptoms of
his mental illness, and appropriately used the health
code and sick leave just as it was available to any
sick employee.
5
No. 2016AP355.awb
because of a symptom of a disability, as long as the employer
does not overtly state that the disability is the reason for the
dismissal.
¶68 Gambini forewarned: "[I]f the law fails to protect
the manifestations of [a] disability, there is no real
protection in the law because it would protect the disabled in
name only." 486 F.3d at 1095. Similarly, over four decades
ago, the United States Supreme Court cautioned that disability
discrimination laws are necessary not only to protect against
prejudice, but to combat "the fact that the American people are
simply unfamiliar with and insensitive to the difficulties
confront[ing] people with [disabilities]." School Bd. of Nassau
Cty., Fla. v. Arline, 480 U.S. 273, 279 (1987) (citation
omitted).
¶69 The Wisconsin Fair Employment Act is to be "broadly
interpreted to resolve the problem it was designed to address."
Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶46, 264
Wis. 2d 200, 664 N.W.2d 651 (quoting McMullen v. LIRC, 148
Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988)). The purpose
of the law is "to encourage and foster to the fullest extent
practicable the employment of all properly qualified individuals
regardless of any [disabilities]." McMullen, 148 Wis. 2d at
275. The majority's restrictive interpretation undermines this
purpose and provides no protections at all to employees with
disabilities.
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No. 2016AP355.awb
III
¶70 Further, the majority's approach is unworkable. By
decoupling the disability from its symptoms and requiring an
employer's knowledge of a disability prior to the adverse
action, the majority places an impossible burden on an employee
with a disability. This burden falls particularly heavily on
those with mental health conditions that are not always
immediately apparent to a layperson or employer.
¶71 The majority states that "[e]xcusing the employee from
proving the employer's knowledge of the causal connection allows
LIRC to find intentional discrimination where there is no proof
of it." Majority op., ¶40. Yet it concedes that "[t]he
consequences of bipolarism are not matters of common knowledge."
Id., ¶46. It then concludes that "[b]ecause of the amorphous
nature of this disability, an employee's bare assertion of
causality cannot be credited as authoritative." Id. Thus, the
majority examines what Wisconsin Bell knew at the time it
terminated Carlson's employment. Id., ¶47.
¶72 So what did Wisconsin Bell know at the time it
terminated Carlson's employment? As the majority details,
Wisconsin Bell knew a full year before the incident that led to
his dismissal that Carlson had bipolar disorder that could
manifest in significant depression. Id., ¶11. It knew that
bipolar disorder may include "[e]xtremes of moods" that "can
occur rather quickly and [are] often triggered by relatively
minor frustrations." Id. It knew that Carlson was receiving
psychotherapy. Id.
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No. 2016AP355.awb
¶73 Yet despite the fact that these letters precisely
describe the actions that ultimately led to Carlson's
termination, the majority discounts the letters because they do
not mention any "causal nexus" between bipolar disorder and
Carlson's conduct. See id., ¶¶46-47. With Wisconsin Bell's
knowledge of Carlson's condition and its manifestations, one
wonders what kind of nexus would satisfy the majority.
¶74 The majority's requirement that the employer have
knowledge of the disability prior to the adverse action
encourages rash and uninformed decision-making on the part of
employers. Under the majority's approach, an employee must
provide immediate medical proof that an action was caused by a
disability or face termination. This is a nearly impossible
hurdle.
¶75 What are Carlson and others similarly situated to do?
Should they notify their employers of their mental health
conditions and all of their possible manifestations immediately
upon being hired in order to protect their employment if
symptoms manifest themselves at a later date? But it is often
impossible to predict in advance all of the ways that a
disability may manifest itself in a workplace. Symptoms as well
as work environments may change and disabilities may progress
and regress. This burden falls particularly severely on those
with mental health disabilities, which are less apparent to the
layperson.
¶76 If employees do not present a sufficient medical
report prior to an adverse action, how are they going to meet
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No. 2016AP355.awb
the majority's apparent requirement that medical proof be
immediately available in order to thwart termination? Such a
requirement seems divorced from the reality of medical treatment
and workplace relations.
¶77 Often a medical professional will want to have an
appointment with the employee to discuss what happened before
issuing a report on causation. Scheduling medical appointments
and receiving subsequent reports opining on causation will
likely take weeks, if not longer, to accomplish.
¶78 Further, the specter of providing a disclosure of all
possible manifestations, even if they may never happen, puts an
employee in a very difficult position. It forces an employee to
disclose a mental health disability and its potential
manifestations just in case. Aside from being an unnecessary
invasion of privacy and potentially embarrassing, it also may
discourage people with disabilities from applying for employment
in the first place. Far from advancing the purpose of the WFEA,
the majority's unworkable approach runs completely counter to
its objectives.
¶79 On the other hand, application of the inference method
of determining discriminatory intent avoids placing an undue
burden on people with disabilities. Further, it gives meaning
to the protections of the Wisconsin Fair Employment Act and
avoids rendering those protections merely illusory.
¶80 For the foregoing reasons, I respectfully dissent.
¶81 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2016AP355.awb
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