The Wisconsin Court of Appeals in a decision late last month affirmed an Equal Rights Division Administrative Law Judge and Labor and Industry Review Commission's ("LIRC") decision that found that a former Wisconsin Bell/AT&T employee's termination violated the Wisconsin Fair Employment Act ("WFEA") when he was terminated for conduct caused by his disability (bipolar I disorder). As is the case with almost every employment law case, the facts are very intensive and specific, but important lessons are still to be learned from this case.
The plaintiff, Charles E. Carlson ("Carlson") had worked for Wisconsin Bell/AT&T since 1986 and worked in several positions but at the time of his termination he was serving as a customer service representative, which is a position he held from November 2007 until his termination in June 2011. In 1997 Carlson began treatment for his eventual diagnosis for bipolar I disorder, which is an illness characterized by having at least one episode of mania, combined with episodes of depression.
Carlson disclosed his condition to a supervisor prior to moving to the call center. At the discretion of that supervisor, temporary accommodations for limited periods could be made when Carlson's symptoms arose at work and when he could not get the symptoms under control, he sometimes requested time off to be covered under FMLA. Carlson informed his next supervisor about his condition as well. This next supervisor informed Carlson that she already knew about his condition from his previous supervisor. When Carlson moved to his recent position at the call center, he did not inform his new supervisor because he thought this information was passed on by management.
In 2010, Carlson was disciplined after he was observed disconnecting 8 consecutive calls over a period of 9 minutes, without explanation, in violation of AT&T's policy that prohibits call avoidance. Carlson was issued a suspension pending termination for this incident. A Review Board hearing was held regarding this suspension where Carlson presented letters from his physicians describing his illness and its symptoms, such as "extreme moods" that can come on rather quickly, triggers by a "relatively minor frustration." Prior to this hearing, Carlson's supervisor had not been informed about Carlson's condition. Nevertheless, Carlson's supervisor found the physician letters to have no impact on the proceeding because the conduct for which Carlson was being disciplined, intentionally disconnecting customers, would never be allowed under any circumstances. Instead of termination, Carlson was issued a 50-day suspension. Carlson was then told by AT&T's Labor Relations Manager that if he needed accommodation for his condition in the future, that he should request it through their 3rd party administrator.
AT&T required Carlson to enter into a "Back to Work Agreement" which permits an employee to return to work with the understanding that at any time during a one-year time frame, they would have just cause to terminate that employee for any infractions relating to customer care, or for a breach of integrity. This Agreement was to commence when he returned to work on May 1, 2010 and continue through April 30, 2011. A mere 10 days prior to the expiration of this Agreement, Carlson left work just before lunch due to illness. Prior to leaving, around 11am, he activated a "health code" which took him temporarily offline and kept him from receiving any incoming customer calls, for a variety of reasons, from illness to simply having to use the restroom. The average "health code" is 3-5 minutes. The total time Carlson's health code was activated that day was 38 minutes. Carlson's use of AT&T's inter-office communication system (Q-Chat) was questioned and it was revealed that he had initiated Q-Chats with coworkers during his health code times discussing various things. Based on these Q-Chats, his supervisors concluded that he was not really ill and he was subsequently issued another suspension pending termination.
Another Review Board hearing was held regarding Carlson's latest suspension and Carlson again obtained a letter from his physician about his bipolar disorder. His supervisor dismissed this letter stating, "[w]e've seen this before." After the hearing AT&T determined that Carlson's termination was warranted. Carlson then filed 2 complaints with the Wisconsin Department of Workforce Development Equal Rights Division. The first was after his 50-day suspension and the other after his termination.
ERD, LIRC and Circuit Court Appeals
Carlson's 2 complaints were consolidated for hearing before an ALJ where Carlson alleged that AT&T violated the WFEA in suspending and terminating him because they were based on his disability and that AT&T failed to accommodate his disability. In a decision dated April 24, 2014, the ALJ determined that Carlson's conduct was caused by his condition and thus both actions taken by AT&T were "because of" his disability and therefore violated the WFEA.
AT&T appealed the ALJ's decision to LIRC. LIRC, in a decision dated February 19, 2015, reversed the ALJ's ruling regarding the suspension, and found that although Carlson's conduct in February 2010 was caused by his bipolar disorder, his supervisor and managers at that time did not have knowledge of his disability. However, LIRC affirmed the determination that AT&T had terminate Carlson because of his disability because at that point his supervisors had been informed of his condition and the types of symptoms which could arise at work (because of the Review Board hearings and physician letters).
AT&T then filed a petition for judicial review of LIRC's decision with the Milwaukee County Circuit Court. The circuit court found that the inference theory of causation utilized by LIRC in finding AT&T liable was reasonable. However, the circuit court remanded the case to LIRC, finding LIRC's analysis of the issues and facts of the case to be "incomplete," specifically with regard to LIRC's findings relating to whether AT&T had known that Carlson's conduct was caused by his condition at the time of his termination. AT&T appealed the circuit court's decision to the Wisconsin Court of Appeals, arguing that the inference method of establishing causation is NOT a reasonable interpretation of the WFEA; or, in the event that it is found reasonable and applied in this case, that the evidence is not sufficient to support a finding of liability.
Court of Appeals Decision
There was no dispute that Carlson had a qualified disability or that he was terminated. The main issue on appeal (a second issue was the level of deference given to LIRC given the main issue) addressed whether LIRC's interpretation of the WFEA is reasonable, specifically with regard to the "because of" language in the statute, whereby LIRC applies the inference theory of causation to impose liability on employers. Under the inference theory of causation, "[i]f 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."
The Court of Appeals agreed with LIRC and held that AT&T had sufficient information and knowledge about Carlson's disability due to the evidence and information provided at the 2010 Review Board hearing and that Carlson's conduct in April 2011 was consistent with the symptoms described in those letter presented by Carlson's physicians. These findings were further supported by deposition testimony from Carlson's physicians which stated Carlson's engaging in Q-Chats with coworkers was indicative of his bipolar condition as he was seeking out help during a difficult time. Based on all of this evidence, LIRC determined, and the Court of Appeals agreed, that Carlson had established a link between his conduct and his condition, and that AT&T's response was insufficient to contradict this evidence.
If an employee has a known disability, it's important to review what you know about this employee's disability when reviewing their disciplines and certainly before you terminate them. This may involve not only reviewing their personnel file but also speaking to their supervisors as often times employees reveal information about their disabilities to their managers and supervisors. In this case, the employer knew a great deal about Carlson's disability because they had a hearing on the issue where medical evidence was introduced and where his supervisor was present. If the employee is behaving in a manner consistent with their disability, it is more than likely more proper to consider engaging in the interactive process to see how they may be accommodated instead of disciplining them as it may lead to liability in a disability discrimination claim.
The case is Wisconsin Bell, Inc. v. LIRC and Charles E. Carlson, Appeal No. 2016AP355 (WI Ct. App. March 28, 2017)