from an order of the circuit court for Milwaukee County Cir.
Ct. No. 2016CV2133: RICHARD J. SANKOVITZ, Judge. Reversed and
cause remanded with instructions.
Brennan, P.J., Kessler and Brash, JJ.
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,  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
WFEA with regard to Mr. Carlson's suspension, but
determined that there was a violation with regard to Mr.
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.
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.
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.
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.
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.
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).
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
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.
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
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.
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.
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.
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
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
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
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.
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
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
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
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, ...