Doepke-Kline v. LIRC

287 Wis.2d 337

2005 WI App 209

704 N.W.2d 605

Sharal Y. DOEPKE-KLINE, Petitioner-Appellant,¹ v. LABOR AND INDUSTRY REVIEW COMMISSION and SBC Communications, Inc., Respondents-Respondents.

No. 2005AP106.

Court of Appeals of Wisconsin.

Submitted on briefs June 14, 2005.

Decided August 18, 2005.

On behalf of the petitioner-appellant, the cause was submitted on the briefs of John S. Williamson, Jr., Appleton.

On behalf of the respondent-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of David C. Rice, asst. attorney general, and Peggy A. Lautenschlager, attorney general.

On behalf of the respondent-respondent, SBC Communications, Inc., the cause was submitted on the brief of Lisa M. Bergersen, Lindner & Marsack, S.C., Milwaukee.

Before Lundsten, P.J., Vergeront and Higginbotham, JJ.

¶ 1. VERGERONT, J.

This appeal concerns the claim of Sharal Doepke-Kline that her employer violated the Wisconsin Fair Employment Act (WFEA) by discharging her because of her asthma, refusing to accommodate her disability, and discriminating against her in the terms and conditions of her employment because of her disability. The Labor and Industry Review Commission dismissed her claim, concluding that she did not demonstrate she was an individual with a disability within the meaning of WIS. STAT. § 111.32(8),² and the circuit court affirmed. Doepke-Kline contends on appeal that the Commission erred in deciding that Chicago, Milwaukee, St. Paul & Pacific Railway Co. v. DILHR, 62 Wis. 2d 392, 215 N.W.2d 443 (1974), did not determine that a diagnosis of asthma alone establishes a disability under the WFEA; consequently, Doepke-Kline asserts, the Commission erred in deciding she had not established a disability. We conclude that Chicago, Milwaukee does not hold that a diagnosis of asthma alone establishes a disability within the meaning of the WFEA. We also conclude that the Commission applied the correct legal standard in deciding that Doepke-Kline failed to establish she had a disability within the meaning of § 111.32(8). We therefore affirm.³

BACKGROUND

¶ 2. Doepke-Kline began working for SBC Communications, Inc., in February 1989. In 1997 she began working at its customer call operations center in Appleton as a service representative. Her position involved handling calls from residential customers related to orders and billing issues; she was also required to recommend and sell products and services to customers.⁴

¶ 3. SBC has an attendance policy under which there is a threshold for "incidental absences" in a rolling twelve-month period. An employee who exceeds that threshold is considered to have unsatisfactory attendance and a progressive discipline begins at that point. Incidental absences do not include certain types of absences, among others, Family and Medical Leave Act (FMLA) absences, absences under the company's sickness and accidental disability benefit plans, and vacations. In April 1999, SBC initiated a new attendance program, which was explained to all employees, including Doepke-Kline. As of August 1999, Doepke-Kline had accumulated a sufficient number of incidental absences so that, under the new attendance program, she should have been at the third step of discipline, which is a suspension. However, because of the number of her absences that year, there was confusion regarding her disability leave time and her FMLA time; as a result, no disciplinary steps were taken and her attendance status was maintained at a satisfactory level. At that time the attendance manager met with Doepke-Kline and explained the status of her attendance record and the fact that she would be progressed in the disciplinary system if she were to incur any further incidental absences.

¶ 4. Doepke-Kline did incur further incidental absences and was subject to progressive discipline, beginning with a written warning for excessive incidental absences in October 1999. She was eventually terminated for unsatisfactory attendance in April 2000. The various causes of the absences between April 1999 and March 27, 2000, that SBC considered to be a violation of its attendance program, were, as reported by Doepke-Kline, stomach flu, "sick," back pain, asthma, pneumonia and a cold. The March 27, 2000 incident involved being more than one hour late for her shift due to an asthma attack.

¶ 5. Doepke-Kline filed a complaint with the Department of Workforce Development, Equal Rights Division, alleging that SBC violated the WFEA by discharging her because of a disability, asthma; refusing to reasonably accommodate her disability; and discriminating against her in the terms and conditions of employment because of her disability. After a hearing the examiner issued a written decision dismissing her claims. Doepke-Kline appealed to the Commission and the Commission affirmed the examiner's decision, with some modifications and additions to the findings of facts and conclusions of law. The Commission concluded that Doepke-Kline had not sustained her burden of proving that she had been discriminated against because of her disability.⁵

¶ 6. In its decision the Commission adopted the examiner's finding that Doepke-Kline's termination was in accordance with SBC's attendance guidelines. The Commission adopted as modified or added the following findings relating to her asthma:

5. Doepke-Kline's claimed disability is asthma. Doepke-Kline, who was age 35 at the time of the hearing, alleges that she has had asthma since she was 16. Over the years Doepke-Kline's physicians have prescribed inhalers, a nebulizer and occasionally Prednisone (a steroid), to treat her asthma.

40. In 1997 ..., Doepke-Kline was seen by Jordan Fink, M.D., a specialist in allergy and immunology. Dr. Fink primarily relied on Doepke-Kline's self-reported symptoms and health history in concluding that she had been diagnosed and treated for asthma over a period of 13 years.

41. Richard Effros, M.D., a pulmonary specialist, examined certain of Doepke-Kline's medical records, including Dr. Fink's report of his 1997 examination, at [SEC's] request. Dr. Effros opined that asthma can be a very mild illness or a life-threatening problem; there is no essential difference between receiving a nebulizer treatment at home or at a hospital. Doepke-Kline's medical records did not establish she had bronchial asthma; there was no record that a total pulmonary function test had ever been administered; the results of the spiratometry test administered in 1997 appear to demonstrate that Doepke-Kline had mild restriction of her breathing passages and that she was not putting forth her full effort in participating in the tests; and his conclusion, based on the medical records that he reviewed, was that Doepke-Kline suffered from chronic bronchitis probably due to her lengthy history of smoking cigarettes.

41. [sic] Doepke-Kline explains that her asthma restricted her life activities because she became incapacitated when she had a severe attack.

¶ 7. In its opinion the Commission considered the definition of "disability" in WIS. STAT. § 111.32(8)(a): "a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work." Relying on case law construing this definition, the Commission stated that Doepke-Kline had to prove that she had an impairment that places a substantial limitation on life's normal functions or on a major life activity or limits her capacity to work at her job. The Commission concluded the evidence did not establish that Doepke-Kline's pulmonary condition — whether the proper diagnosis is asthma or chronic bronchitis — met this standard. In particular, the Commission determined the occasional absences that she self-reported as attributable to asthma were not sufficient to establish that her pulmonary condition substantially limited normal life functions or a major life activity or limited her capacity to work. The Commission rejected Doepke-Kline's argument that under Chicago, Milwaukee a diagnosis of asthma alone supports a conclusion that Doepke-Kline is disabled. The Commission first observed that the evidence placed a diagnosis of asthma for Doepke-Kline "in serious question." But even if that diagnosis were established, the Commission stated, Chicago, Milwaukee does not hold that every diagnosis of asthma constitutes a disability.

¶ 8. Doepke-Kline appealed the Commission's decision to the circuit court, which affirmed the decision.

DISCUSSION

¶ 9. On appeal from the circuit court's order, Doepke-Kline repeats her contention that the Commission erred in its reading of Chicago, Milwaukee. That case, Doepke-Kline asserts, holds that a diagnosis of asthma alone establishes a disability within the meaning of the WFEA,⁶ and the Commission is not free to disregard that holding.

¶ 10. On an appeal from a circuit court's order affirming or reversing an administrative agency's decision, we review the decision of the agency, not that of the circuit court, and our scope of review is the same as that of the circuit court. Target Stores v. LIRC, 217 Wis. 2d 1, 11, 576 N.W.2d 545 (Ct. App. 1998). We affirm the agency's findings of fact if there is credible and substantial evidence in the record upon which reasonable persons could rely to make the same findings. Id. Whether the facts as found by the Commission establish that Doepke-Kline is an individual with a disability under WIS. STAT. § 111.32(8) is a question of law. Hutchinson Tech., Inc. v. LIRC, 2004 WI 90, ¶ 10, 273 Wis. 2d 394, 682 N.W.2d 343. Although we generally review a question of law de novo, when the question of law involves the construction of a statute that an agency is charged with administering, we may give deference to the agency's construction. Target, 217 Wis. 2d at 13. The supreme court has held that the Commission's determination of whether an individual is disabled under § 111.32(8) is entitled to great weight deference. See Hutchinson Tech....