Argument Date: December 1, 2017
Circuit Court Milwaukee County (L.C. No. 2015CV2133) Richard
J. Sankovitz Judge.
of a decision of the Court of Appeals. Reversed.
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.
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.
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
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,
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.
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.
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), 
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) . 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
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.
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.
Mr. Carlson suffers from bipolar I disorder, a mental illness
that can affect an individual physically, socially, and
intellectually. 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
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
Carlson's Wisconsin Bell Employment History
Mr. Carlson was a Wisconsin Bell employee for approximately
25 years prior to his termination in May 2011. 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
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.
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.
Carlson's 2010 Suspension
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. 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.
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,
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.
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
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
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.
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
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.
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. Although Mr.
Carlson informed her that he "wasn't doing
well," he did not otherwise explain his symptoms or
mention his bipolar disorder.
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.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.
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.
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.
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.
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.
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.
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
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
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.
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
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 ...