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Doepke-Kline v. Labor and Industry Review Commission8/18/2005
Before Lundsten, P.J., Vergeront and Higginbotham, JJ.
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), and the circuit court affirmed. Doepke-Kline contends on appeal that the Commission erred in deciding that Chicago, Milwaukee, St. Paul & Pacific R.R. 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.
BACKGROUND
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.
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.
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.
Doepke-Kline filed a complaint with the Department of Workforce Development, Equal Rights Division, alleging that SBC violated the WFEA by discharging
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