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Wisconsin Bell, Inc. v. Labor & Industry Review Commission

Court of Appeals of Wisconsin, District I

March 28, 2017

Wisconsin Bell, Inc., Petitioner-Appellant,
v.
Labor and Industry Review Commission and Charles E. Carlson, Respondents-Respondents.

          APPEAL from an order of the circuit court for Milwaukee County Cir. Ct. No. 2016CV2133: RICHARD J. SANKOVITZ, Judge. Reversed and cause remanded with instructions.

          Before Brennan, P.J., Kessler and Brash, JJ.

          BRASH, J.

         ¶1 Wisconsin Bell, Inc., appeals an order of the circuit court remanding the decision of the Labor and Industry Review Commission (LIRC) based on the sufficiency of the evidence. Respondent Charles E. Carlson filed two disability discrimination claims against his former employer, Wisconsin Bell, [1] alleging that Wisconsin Bell had suspended him without pay in 2010 and subsequently terminated his employment in 2011 because of his disability, bipolar disorder, in violation of the Wisconsin Fair Employment Act (WFEA). See generally W . S . § 111.31. LIRC found that Wisconsin Bell had not violated IS TAT [2] the WFEA with regard to Mr. Carlson's suspension, but determined that there was a violation with regard to Mr. Carlson's termination.

         ¶2 Wisconsin Bell then filed a petition for judicial review of LIRC's decision with the Milwaukee County Circuit Court. The circuit court found LIRC's analysis of the issues and facts of the case to be "incomplete" and remanded it to LIRC to further analyze and weigh the evidence.

         ¶3 Wisconsin Bell now appeals that decision, arguing that LIRC's theory of causation, referred to as the "inference method, " is not a reasonable interpretation of the WFEA, and thus LIRC's decision should be reversed. In the alternative, if the inference method is found by this court to be reasonable, Wisconsin Bell asserts that LIRC's decision should be reversed as a matter of law because there is insufficient evidence to support the imposition of liability using that method.

         ¶4 We disagree with Wisconsin Bell. Upon review, we find the inference method of causation to be a reasonable interpretation of the WFEA by LIRC, and further, that the evidence in the record is sufficient to support LIRC's findings and decision. We therefore reverse the circuit court, and affirm LIRC.

         Background

         ¶5 Mr. Carlson was a long-time employee of Wisconsin Bell, having been hired on March 4, 1986. During the tenure of his employment he worked in a number of different areas of the company, most recently as a customer service representative, holding this position since November 2007. For this position, Mr. Carlson worked at the Tier II Call Center, providing technical support to Wisconsin Bell's customers and technicians for AT&T U-verse services by answering incoming phone calls and responding to electronic messages.

         ¶6 Mr. Carlson began treatment in 1997 for what was eventually diagnosed as bipolar I disorder by his psychiatrist, Dr. Mark Siegel. This illness is characterized by having at least one episode of mania, combined with episodes of depression. These "extreme moods" can come on rather quickly; for example, a "relatively minor frustration" can trigger an episode. Mr. Carlson's condition is treated by both medication prescribed by Dr. Siegel and by therapy with his psychotherapist, Edward Cohen.

         ¶7 In 2006, prior to moving to the Tier II Call Center, Mr. Carlson disclosed his condition to his supervisor at the time, John Reichertz. Under Wisconsin Bell's policy, Mr. Reichertz could, at his discretion, allow temporary accommodations for limited periods of time for Mr. Carlson when his symptoms arose at work. These accommodations included time spent offline from taking calls, talking with Mr. Reichertz in a conference room, and the opportunity to call his therapist. When Mr. Carlson could not get his symptoms under control and had to leave work, he sometimes requested that the time off be covered under the Family and Medical Leave Act (FMLA).

         ¶8 Additionally, Mr. Carlson took medical leaves from Wisconsin Bell using FMLA on several occasions due to his condition, in 2008 and 2009. These requests were made to a separate entity, the AT&T Integrated Disability Service Center (IDSC), which is utilized by Wisconsin Bell for short-term or long-term disability claims, including the review of requested accommodations for disabilities. Any health information received by the IDSC about employees remains confidential.

         ¶9 Mr. Carlson also informed his next supervisor, Michaela Wirtz, about his condition. However, at the time of his disclosure, Ms. Wirtz told Mr. Carlson that Mr. Reichertz had already informed her about it. When Mr. Carlson moved to his most recent position at the Tier II Call Center, however, he did not inform his new supervisor about his condition because he thought this information was passed on by management.

         ¶10 In 2010, Mr. Carlson was disciplined after he was observed violating company policy. On February 18, 2010, Jason Carl, the area manager for the Tier II Call Center, and Jeanette Weber, an operations manager, observed Mr. Carlson disconnect eight consecutive calls over a period of nine minutes, without explanation, in violation of Wisconsin Bell's policy that prohibits call avoidance. As a result of this policy violation, Mr. Carlson was issued a suspension pending termination.

         ¶11 Subsequently, a Review Board hearing was held on March 4, 2010, with regard to Mr. Carlson's disciplinary action. Mr. Carl and Peggy Texeira, the AT&T Labor Relations Manager at that time, were present at that hearing, representing management. During this hearing, Mr. Carlson presented letters from Dr. Siegel and Mr. Cohen describing his illness and its symptoms, such as "extreme moods" that can come on rather quickly, triggered by a "relatively minor frustration." Prior to this, Mr. Carl had not been informed about Mr. Carlson's condition. Nevertheless, Mr. Carl found that the letters had no impact on the proceeding because the conduct for which Mr. Carlson was being disciplined, intentionally disconnecting customers, would never be allowed under any circumstances.

         ¶12 Ultimately, Wisconsin Bell imposed a fifty-day unpaid suspension on Mr. Carlson instead of terminating him. Mr. Carlson was told by Ms. Texeira that if he needed an accommodation for his condition in the future, that he should request it through IDSC. He was also informed that Wisconsin Bell would not permit an accommodation that involved call avoidance in the workplace.

         ¶13 To that end, Wisconsin Bell required Mr. 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, Wisconsin Bell would have just cause to terminate that employee for any infractions relating to customer care, or for a breach of integrity. The enforcement of the Back to Work Agreement commenced when Mr. Carlson returned to work after his suspension on May 1, 2010, and was to continue through April 30, 2011.

         ¶14 Ten days prior to the expiration date of the Back to Work Agreement, on April 20, 2011, Mr. Carlson left work just before lunch due to illness. Prior to leaving, around 11:00 am, he had activated a "health code." During the workday an employee may activate a health code which takes that employee temporarily offline and keeps him or her from receiving any incoming customer calls, for a variety of reasons, from illness to simply needing to use the restroom. There are no written rules relating to the time limit of a health code; however, the average health code is three to five minutes.

         ¶15 Around 11:15 am, while his health code was still active, Mr. Carlson spoke to his direct supervisor at the time, Kristi Reidy, about leaving work for the day due to illness. He returned to his desk, eventually notifying the help desk that he was leaving due to illness, in accordance with Wisconsin Bell's internal procedures. He then left work at 11:50 am. He did not submit a request for FMLA leave for this absence.

         ¶16 The total time Mr. Carlson's health code was activated that day was thirty-eight minutes. During this time, he was questioned about the excessive length of the health code by an operations manager, LaDonna Sneed-Brown, by means of "Q-Chat, " Wisconsin Bell's computerized inter-office communication system. Mr. Carlson replied to Ms. Sneed-Brown that he was going to leave work due to illness. However, he then sent another Q-Chat to Ms. Sneed-Brown that said "TTYL. Thank you. Talk to you later and thanks for being there as one of my lesbian friends." When Ms. Sneed-Brown responded with a question as to the nature of his message, Mr. Carlson replied "[s]orry wrong window."

         ¶17 Suspecting that Mr. Carlson had been engaged in Q-Chatting about personal matters with other employees during the time he had activated the health code, Ms. Sneed-Brown reported Mr. Carlson's health code and message to Ms. Reidy. They reviewed a number of Q-Chats showing that Mr. Carlson had indeed initiated Q-Chats with coworkers during that time, discussing the fact that he had failed a test that was required in order to transfer to the Collections Department and was having a hard time being "customer friendly and perky." He had also "chatted" with his union representative regarding how his absence would be documented if he were to leave work early.

         ¶18 Based on the tone and content of the Q-Chats, Ms. Reidy and Ms. Sneed-Brown concluded that Mr. Carlson was not really ill, and had merely been "chitchatting" about personal matters and engaging in "gossip" with his coworkers during the time his health code was activated. They reported their findings to Mr. Carl. The next day, on April 21, 2011, Mr. Carlson received a notice of suspension pending termination.

         ¶19 A Review Board hearing for this incident was held on May 26, 2011. Mr. Carlson obtained another letter from Dr. Siegel regarding his bipolar disorder, noting that his medication had been increased recently as a result of an increase in his depression. This letter was dismissed by Mr. Carl, who stated, "[w]e've seen this before." Mr. Carlson explained that he had put himself into the health code on April 20, 2011, after he learned that he had failed the test for the Collections Department, which had greatly upset him, and he "doesn't react to things like everybody else."

         ¶20 Mr. Carlson stated that he then went to see Ms. Reidy about leaving for the day, and she told him to "do what you need to do." He further explained that after speaking to Ms. Reidy, he had returned to his desk, as he was going to try to continue working since the call center was in a "Code Red" that day, meaning there were very heavy call volumes. He explained that he had been Q-Chatting with other employees who were friends of his for support, as had been suggested by his therapist. He did this until he was questioned by Ms. Sneed- Brown. He ultimately decided to leave work for the day because he was crying and "would not be able to handle calls and be professional" with customers.

         ¶21 After the Review Board hearing, Wisconsin Bell determined that Mr. Carlson's termination was warranted. In a letter dated June 7, 2011, Wisconsin Bell described what it determined were breaches of the provisions of the Back to Work Agreement, namely the mistreatment of customers by Q-Chatting with other employees while having activated a health code for an excessive amount of time, and a breach of integrity in leaving work early because it did not believe that he was truly ill. In sum, ...


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