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

Supreme Court of Wisconsin

June 26, 2018

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

          Oral Argument Date: December 1, 2017

          Circuit Court Milwaukee County (L.C. No. 2015CV2133) Richard J. Sankovitz Judge.

         REVIEW of a decision of the Court of Appeals. Reversed.

          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 Lndustry 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.

          DANIEL KELLY, J.

         ¶1 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]

         ¶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., ¶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.

         ¶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 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 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 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:

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 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 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 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.

         ¶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]

         ¶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 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 ...

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