PUBLISHED
OPINION
COURT OF
APPEALS
DECISION
DATED AND FILED
September
21, 2000
Cornelia G. Clark
Clerk, Court of Appeals
of
Wisconsin
NOTICE
This opinion is subject to further editing. If published, the official version will
appear in the bound volume of the Official Reports.
A party may file with
the Supreme Court a petition to review an adverse decision by the Court of Appeals.
See
Wis. Stat. §808.10
and Rule 809.62.
No. 99-2632
STATE OF
WISCONSIN IN COURT OF APPEALS
DISTRICT
IV
Wal-Mart Stores, Inc.,
Plaintiff-Appellant,
v.
Labor and Industry
Review Commission,
Defendant-Respondent,
James R. Schneider,
Interested Party-Respondent.
APPEAL from an order of the circuit court for Dane County:SARAHB.O'BRIEN,
Judge.Reversed and cause remanded with directions.
Before Vergeront, Roggensack and Deininger, JJ.
¶1. DEININGER,J.Wal-Mart Stores, Inc., appeals an order which affirmed a
determination by the Labor and Industry Review Commission that Wal-Mart had
discriminated against James Schneider by terminating his employment because of his
disability.1 Wal-Mart claims the
commission erred in several of its findings and conclusions, but we address only one of the
claimed errors inasmuch as it is dispositive. We agree with Wal-Mart that, because there
was no expert testimony establishing that the behavior for which Schneider was fired was
caused by his mental illness, the commission erred in finding that Wal-Mart terminated his
employment because of his disability. Accordingly, we reverse the circuit order affirming
the commission's determination, and we remand for the entry of an order setting aside the
commission's determination.
BACKGROUND
¶2. Schneider was employed by Wal-Mart as a tire and lubrication technician,
and his principal duties consisted of draining oil and changing oil filters on customers'
automobiles. He suffers from a form of mental illness known as obsessive-compulsive
disorder (OCD). This anxiety disorder is caused by a chemical imbalance, which affects the
way the brain influences a person's thoughts, feelings and actions. A pamphlet introduced as
an exhibit at the hearing on Schneider's discrimination complaint explains that OCD sufferers
have "recurring and unwanted thoughts or images that the person knows are excessive
or unreasonable but cannot stop," such as a fear of contamination by dirt or germs,
fear of harming themselves or others, or a preoccupation with having a serious illness such
as cancer.2 These obsessive thoughts
then lead to "repetitive behaviors or mental acts that consume at least one hour each
day," such as excessive hand washing, repeatedly checking items such as locked doors,
or arranging items in a certain way.
¶3. Schneider was receiving treatment for his OCD in the form of medications
and psychotherapy. About three months before he was fired, Wal-Mart granted him an
extended leave to allow him to undergo a change in his medications. He then returned to
work, at first part-time, progressing to full-time over a four-week period. Soon after his
return to work, Schneider's supervisor announced to the automobile service technicians that
another employee was being promoted to the position of "bay manager." The
commission found that the following then ensued:
Schneider immediately became upset and voiced his opposition
to the promotion saying, among other things, that it was unfair and that [the other employee]
was unqualified. [The supervisor] told Schneider two or three times to be quiet, and at one
point to shut up, and that they could discuss it one on one later. Schneider responded by
saying he was going to quit and then asking if he could go home for the day because he was
sick. [The supervisor] told Schneider that he could leave for the day.
After obtaining written statements from the employees
present, and discussions among "upper management," Wal-Mart terminated
Schneider's employment, citing his "insubordination" on the day in
question.
¶4. Before his leave of absence, Schneider had discussed with his supervisor the
possibility of his being promoted to the position of bay manager, and he was counseled on
areas in which he could improve in order to enhance his opportunity for promotion.
Schneider believed that it was "all but certain" that he would get the promotion,
and he committed himself to hard work and improvement to that end. He testified:
The way I was talked to and the times that I was talked to,
again, I was led to believe that this position was going to be mine. And after a while, the
OCD just takes over. It just-it consumed me for weeks and months, that I couldn't wait to
get this position, just as it would consume me for weeks at a time of not going out of my
apartment, not opening my drapes, and that type of thing.
He also testified that problems with "anger
control" were a part of his OCD, and that some of the medication that he was taking at
the time "was to help relieve those feelings."
¶5. The deposition of Schneider's therapist, Betty Cameron, was made a part of
the record in the administrative proceedings. She is a registered nurse "with a degree
in nursing and an undergrad degree with a minor in psychiatry, and ... a master's degree in
marriage and family therapy." Her experience included "many years as a
psychiatric nurse on inpatient psychiatry in Waukesha and Shorewood, Wisconsin, and also
at DePaul in Milwaukee, which is an alcoholic recovery hospital, which also had certain dual
diagnosis patients with obsessive-compulsive disorders." She testified that she felt
"very confident in assessing for that diagnosis."
¶6. Cameron testified that she had spoken on several occasions with Schneider's
supervisor regarding Schneider's need for a leave and the phased transition back to work
following his medication change. She recalled telling the supervisor that Schneider's former
medication "was not holding him" and that he was thus "highly
reactive," meaning that he was "quick to anger." She also testified that
"anger is so much a part of the predominant symptom when the medications are not
appropriate," and that the gradual transition back to work was recommended so that
Schneider would not "lose his temper or kind of sabotage himself." According to
Cameron, Schneider's supervisor came across as being very understanding and amenable to
both the leave and the transition, saying at one point that "he would do anything in his
power to help" Schneider.
¶7. The administrative law judge (ALJ) who heard Schneider's complaint
concluded that the record established that Wal-Mart had discriminated against Schneider
because of his disability when it fired him following the incident described above. He
ordered Wal-Mart to reinstate Schneider and to pay his back wages, costs and attorney fees.
Wal-Mart appealed to the commission, which, with minor modifications, adopted the ALJ's
findings and conclusions as its own. Wal-Mart then petitioned the circuit court for review,
and the court affirmed the commission's determination. Wal-Mart renews its claims of error
in this court.
ANALYSIS
¶8. We independently review the commission's determination, not the decision
of the circuit court. See Barnes v. DNR, 178 Wis.2d 290, 302, 506
N.W.2d 155 (Ct. App. 1993), aff'd, 184 Wis.2d 645, 516 N.W.2d 730 (1994).
The scope of our review depends, initially, on whether the agency determination under
review is its finding of a fact or its interpretation of law. See Wis. Stat.
§227.57(3), (5) and (6) (1997-98).3
¶9. Wal-Mart concedes that Schneider has a disability within the meaning of
Wisconsin's fair employment law. See Wis. Stat. §111.32(8). In order to
prevail on his discrimination claim, however, Schneider must also show that Wal-Mart
terminated his employment because of his disability. See Target Stores v.
LIRC, 217 Wis.2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998). In this regard, the
commission concluded as follows:"It is undisputed that [Schneider] was discharged
because of his outburst at a staff meeting. If [Schneider] established that the outburst was
caused by his disability, then his termination must be considered, in legal effect, to have
been because of his disability." Wal-Mart argues both that Schneider failed to establish
the causal link between his disability and the "outburst" which led to his
dismissal, and that, even if cause had been established, a firing for misconduct cannot be
deemed, "in legal effect," to be an action taken "because of his
disability." Because we agree with Wal-Mart's first argument, which challenges the
sufficiency of the evidence before the commission, we do not reach the second, which raises
a purely legal question.4
¶10. Our review of an agency's factual finding is highly deferential:
If the agency's action depends on any fact found by the agency
in a contested case proceeding, the court shall not substitute its judgment for that of the
agency as to the weight of the evidence on any disputed finding of fact. The court shall,
however, set aside agency action or remand the case to the agency if it finds that the
agency's action depends on any finding of fact that is not supported by substantial evidence
in the record.
Wis. Stat. §227.57(6). "Substantial
evidence" is that quantum of relevant evidence as a reasonable mind might accept as
adequate to support a conclusion, and we will only set aside an agency's decision where,
"upon an examination of the entire record, the evidence, including the inferences
therefrom, is found to be such that a reasonable person, acting reasonably, could not have
reached the decision from the evidence and its inferences." Target
Stores, 217 Wis.2d at 11 (citation omitted).
¶11. Wal-Mart's challenge to the sufficiency of the evidence rests on two
premises:(1)that expert testimony is required to prove the causal link between Schneider's
disability and his conduct; and (2)that there is none in the record doing so. As to the first
proposition, we note that whether expert testimony is necessary in a given situation is a
question of law, which we decide without deference to a trial court's opinion on the matter.
See Grace v. Grace, 195 Wis.2d 153, 159, 536 N.W.2d 109 (Ct. App.
1995). Whether we should defer to an administrative decision maker on the question of the
need for expert testimony on a factual issue in dispute before it, and if so, to what degree,
are perhaps more difficult questions.
¶12. The commission did not directly rule on whether expert testimony was
needed to establish that Schneider's OCD caused him to react vociferously to the
announcement that a fellow employee, and not he, would be promoted. The commission
gave the following explanation of its finding that Schneider had established the requisite
causation:
The commission believes that the complainant has satisfied his
burden in this regard. [Schneider] established that he suffers from OCD, and that people
with OCD are plagued by obsessive thoughts. The record also established that [Schneider]
was obsessively focused on the idea of obtaining the bay manager position-[Schneider]
testified that he had been consumed for "weeks and months" with the position,
and this is well borne out by the record. In addition to the fact that [Schneider]'s OCD
resulted in obsessive thoughts, [his] therapist indicated that [his] condition made it difficult
for him to control his anger and that, at the time of the events which resulted in his
discharge, she was in the process of trying to adjust his medication to help him achieve
better anger management. Under these circumstances, the commission is satisfied that
[Schneider]'s actions in becoming profoundly upset and acting out at a meeting in which he
learned that someone else had been selected for the bay manager position were attributable to
his OCD ....
¶13. It is not clear from the foregoing whether
the commission deemed expert testimony unnecessary on the question of causation, or if it
considered the pamphlet describing OCD which Schneider introduced into evidence, together
with the testimony of his therapist, sufficient expert evidence on the issue. Because the
commission did not directly address the question, our consideration of whether expert
testimony is required to link Schneider's "outburst" with his OCD is, of
necessity, denovo.
¶14. Even if the commission had ruled on the matter, however, we would
conclude that denovo review is appropriate. The question appears to be one of first
impression, and it addresses the necessary quantum of proof required to establish a
medical/psychiatric fact. Thus, it is a question that is at best tangential to the commission's
legislative charter to administer certain employment-related statutes, and it lies outside of the
commission's acknowledged expertise in employment discrimination matters. We conclude
that a reviewing court is as competent as the commission to decide the legal question of
whether expert testimony is required to establish a causal link between a psychiatric disorder
and certain behavior. See Jicha v. DILHR, 169 Wis.2d 284, 290-91, 485
N.W.2d 256 (1992) ("[T]he denovo standard is applied where it is clear from the lack
of agency precedent that the case is one of first impression for the agency and the agency
lacks special expertise or experience in determining the question presented.") (citations
omitted).
¶15. The commission's failure to directly address whether expert testimony was
necessary to establish causation is understandable. Wal-Mart did not make its present
arguments regarding the need for expert testimony during the review proceedings before the
commission. The commission thus asks us to declare the issue waived. See, e.g.,
Lange v. LIRC, 215 Wis.2d 561, 572, 573 N.W.2d 856 (Ct. App. 1997). For
several reasons, however, we choose not to do so. First, the waiver rule is one of
administration, not jurisdiction, and it is a general rule to which there are exceptions.
See Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140 (1980).
Second, as we have noted, the necessity for expert testimony to establish a given fact
presents a question of law, and the parties have fully briefed the issue, both here and in the
circuit court.5 See
id. Finally, we conclude that "the question presented is of sufficient
public interest to merit a decision," see State v. Gaulke, 177 Wis.2d
789, 794, 503 N.W.2d 330 (Ct. App. 1993), and it is one that is likely to recur. See
Waukesha County v. Pewaukee Marina, Inc., 187 Wis.2d 18, 22, 522 N.W.2d
536 (Ct. App. 1994).6
¶16. We thus turn to a consideration of whether Schneider needed to present
expert testimony to establish that his vociferous reaction to the announcement that another
employee was being promoted to the position of bay manager was caused by his OCD. We
conclude that expert testimony was a prerequisite for this finding. The supreme court has
explained that there is a distinction "between matters of common knowledge and those
needing expert testimony to explain." Cramer v. Theda Clark Memorial
Hosp., 45 Wis.2d 147, 150, 172 N.W.2d 427 (1969). "[E]xpert
testimony should be adduced concerning matters involving special knowledge or skill or
experience on subjects which are not within the realm of the ordinary experience of mankind,
and which require special learning, study, or experience." Id.
(citations omitted). In situations where the factual question of causation is "so complex
or technical" that a lay fact finder "without the assistance of expert testimony
would be speculating," the absence of expert testimony "constitutes an
insufficiency of proof." Id. at 152. We conclude that that is
precisely the circumstance regarding the question before us.
¶17. The pamphlet introduced by Schneider states that "OCD is a complex
and baffling medical illness," and that "[d]uring the past decade, scientific
research has made enormous progress in understanding the biochemical features of OCD, and
doctors and other mental health professionals are now able to diagnose and treat the
illness." Schneider himself testified that OCD "is a very much misunderstood
disease still at this date and time." We agree. There is nothing in the record from
which we might conclude that the symptoms and manifestations of OCD are "within the
realm of the ordinary experience of mankind." See Cramer, 45
Wis.2d at 150. We thus conclude that the question of whether Schneider's OCD caused him
to react angrily and vociferously to the news that he had been passed over for promotion,
and thereby to commit the alleged insubordination for which he was fired, is sufficiently
"complex or technical" that a lay fact finder "without the assistance of
expert testimony would be speculating" on the matter.7 See id. at 152.
¶18. We acknowledge that the commission is not necessarily a "lay fact
finder" in the same sense that a trial judge or a jury is. The legislature has designated
the commission as the final administrative arbiter of work-related claims, including
discrimination claims. See Wis. Stat. §103.04. Consequently, as we have
noted, owing to its authority and expertise in employment-related matters, our review of the
commission's factual findings is highly deferential, requiring that we uphold a finding unless
"a reasonable person, acting reasonably, could not have reached the decision from the
evidence and its inferences." See Target Stores, 217 Wis.2d at 11.
We are not persuaded, however, that we must defer to an inference by the commission that
clearly lies outside its area of expertise. Whether a causal link exists between Schneider's
disability and the conduct which triggered his firing is a question of medical/scientific fact,
not one of employment policies or practices. Thus, we conclude that, on the issue at hand,
the commission stands in no better position than a judge or jury, and that if the commission
made its finding on causation, "without the assistance of expert testimony" to
support that finding, the commission "would be speculating." See
Cramer, 45 Wis.2d at 152.8
¶19. We must next consider, therefore, whether there is expert testimony in the
present record to support the commission's conclusion that Schneider's OCD caused his
outburst. It appears from the previously quoted passage from its decision that the
commission relied on three things to conclude that causation was established:(1)Schneider's
own testimony that he was "obsessed" with attaining the bay manager's position;
(2)the pamphlet describing OCD; and (3)therapist Cameron's deposition testimony. Even
though he suffers from the disease, Schneider is not an "expert" on OCD for the
present purposes, in that there is no indication in the record that he possesses
"scientific, technical, or other specialized knowledge" by way of
"experience, training, or education" that would qualify him to give an expert
opinion on whether a certain behavior was caused by his OCD. See Wis. Stat.
§907.02. The OCD pamphlet in the record, as we have noted, comments that
"doctors and other mental health professionals" are now able to diagnose and
treat the "complex and baffling" illness of OCD. The commission must therefore
look to these professionals, and not to their patient, for the necessary expertise to testify on
the question of causation.9
¶20. We will assume for present purposes that the OCD pamphlet introduced by
Schneider constitutes "expert testimony" regarding the nature and manifestations
of OCD. (See footnotes 2 and 9.) The pamphlet obviously provides no direct evidence that
Schneider's outburst on the day in question was caused by his OCD, nor does it provide any
evidence from which that conclusion might be inferred. If anything, the pamphlet
undermines Schneider's contention regarding causation. The OCD-related behaviors cited in
the pamphlet involve repetitive performance of routine acts, such as hand washing, the
touching or arranging of objects, locking of doors, or hoarding useless items. There is no
mention of anger-control problems, or of a tendency to engage in vociferous outbursts in
response to unwelcome news.
¶21. Similarly, the pamphlet describes "typical OCD obsessions" as
"recurring and unwanted thoughts or images that the person knows are excessive or
unreasonable but cannot stop." Examples cited include the fear of dirt, germs, or
diseases; an irrational preoccupation with illnesses; and the fear of committing "sinful
acts." By contrast, the pamphlet notes that certain normal or desirable personality
traits are often said to be "obsessive," such as the desire to lose weight, and that
some forms of obsessive thinking or compulsive actions, such as "perfectionism"
and "conscientiousness," may be evidence of an "obsessive-compulsive
personality" rather than OCD. In short, nothing in the pamphlet supports a claim that
a preoccupation with getting ahead in one's job, or an emotional outburst when that goal is
thwarted, represent "typical" manifestations of OCD.
¶22. That leaves the testimony of therapist Cameron, whose credentials as a
registered nurse specializing in psychiatric care we have described. Wal-Mart suggests that
she was not qualified to give testimony on whether OCD caused Schneider's outburst. We
need not address the issue of Cameron's qualifications to give such testimony, however,
because she did not do so. Like the pamphlet, therapist Cameron provided no direct
evidence that Schneider's outburst at the staff meeting was caused by his OCD. Quite
simply, she was never asked whether, in her professional opinion, Schneider's behavior on
the day in question, as described by other witnesses or their statements, was caused by, or
likely to have been caused by, Schneider's OCD. Cameron also gave no testimony
corroborating Schneider's claim that he was obsessed with attaining a promotion, or more
importantly, that a preoccupation with being promoted was in any way related to his
OCD.
¶23. Most of Cameron's testimony was transactional, relating to communications
she had had with Schneider's supervisor regarding his leave from and return to work. She
testified that she was on vacation at the time of Schneider's firing, that another therapist was
covering her "more difficult clients," and that she did not "personally call
anybody at Wal-Mart to talk about the incident." The commission, however, relied on
Cameron's testimony that Schneider's difficulty in controlling his anger was one of the
reasons he had undergone a change in medications prior to the incident which led to his
firing. We conclude that this testimony (which we have summarized in the Background
section of this opinion) is insufficient to serve as a proxy for direct, expert testimony linking
the behavior in question to Schneider's OCD.10
¶24. In summary, we conclude that expert testimony was required to establish
that the conduct which formed the basis for Wal-Mart's action in terminating Schneider's
employment was caused by his disability, and that the record lacks such expert testimony.
We thus conclude that the commission's determination is not supported by substantial
evidence. A "reasonable person, acting reasonably, could not have reached the
decision from the evidence" before the commission, see Target
Stores, 217 Wis.2d at 11 (citation omitted), because the causal link between
OCD and Schneider's behavior that led to his firing "are not within the realm of the
ordinary experience of mankind." See Cramer, 45 Wis.2d at 150.
The commission may not infer the required causal link from the evidence before it, for to do
so without expert testimony on the issue, is speculation, not the drawing of a reasonable
inference to which we must defer. See id. at 152.
CONCLUSION
¶25. For the reasons discussed above, we reverse the circuit court's order and
direct that, on remand, an order be entered setting aside the commission's decision and
order.11
By the Court.-Order reversed and cause remanded with directions.
Recommended for publication in the official reports.
¶26. VERGERONT, J. (dissenting). I disagree with the analysis
and conclusion of the majority opinion. Whether the conduct that led to Schneider's
dismissal was caused by his obsessive-compulsive disorder (OCD) is a question of fact. I
conclude that Cameron is qualified to testify as an expert both on whether Schneider has
OCD and on the symptoms he manifests that are caused by OCD. Cameron testified that
Schneider has OCD, and, as the majority states, Wal-Mart concedes that Schneider has a
disability within the meaning of the statute. Cameron also testified:
A. ... I remember telling [Schneider's supervisor] that
[Schneider] was in crisis from the standpoint that his medication was, was not holding him,
that as part of his disorder, being the obsessive-compulsive disorder, that he was highly
reactive. And anger is so much a part of the predominant symptom when the medications
are not appropriate to address the symptoms. So we were in the process of getting him on
different medications and trying to alleviate the high reactiveness of Jim Schneider.
Q. Did you talk with [Schneider's supervisor] about the obsessive-compulsive
disorder and explain it to him?
A. I don't remember exactly how much in depth I went with him, but I remember
telling [him] something to the effect that [Schneider] is highly affective. He doesn't like
being that way; it is part of his disorder. And that's the part we're addressing in therapy but
therapy is not sufficient for him. He is one of those clients that needs medication as
well.
¶27. Given our deferential standard of review
of the factual findings of the commission, I conclude that Cameron's deposition testimony is
sufficient for a reasonable person acting reasonably to decide that being highly reactive and
quick to anger are symptoms of Schneider's OCD. I conclude that testimony, together with
Schneider's testimony, is sufficient to permit a reasonable person acting reasonably to decide
that his "outburst" at the meeting was caused by his OCD. I agree with the
majority that Schneider's testimony alone is not sufficient to establish that his conduct at the
meeting was caused by his OCD. However, I do not agree that it is necessary for Cameron
or some other expert to specifically opine that Schneider's conduct at the meeting was caused
by his OCD in order for the commission to make that finding. Therefore, I respectfully
dissent. Were I writing for the majority, I would affirm the commission's finding that the
behavior for which Schneider was fired was caused by his OCD, and proceed to decide the
other issues that Wal-Mart raises on appeal. Because I am writing in dissent, I confine my
comments to the issue decided in the majority opinion.
1 During the course of administrative proceedings in this case, the legislature revised the
pertinent statutes to replace the obsolete term "handicap" with the term
"disability." See 1997 Wis. Act 112. Although some documents in
the record refer to Schneider's "handicap," we will employ the current term
throughout this opinion.
2 The pamphlet introduced as an exhibit is entitled "Understanding the Inner Workings
of Obsessive-Compulsive Disorder (OCD)." Its author or publisher cannot be readily
determined from the copy in the record. Schneider testified that he had received the
pamphlet "from the Marshfield Clinic," and that it "explain[s] the different
steps and how it [OCD] affects some people one way and some people another way."
3 All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise
noted.
4 The Wisconsin Manufacturers & Commerce (WMC) filed an amicus brief in which it
argues that "An employer who discharges an employee because of conduct does not
discharge the employee because of a disability-even if the disability caused the conduct that
caused the discharge." Cf. Squires v. LIRC, 97 Wis.2d 648, 294
N.W.2d 48 (Ct. App. 1980). The WMC does not address whether expert testimony is
necessary to establish that Schneider's OCD caused his misconduct, and accordingly, we will
not further discuss the arguments advanced in the amicus brief.
5 The circuit court concluded that "[n]o specific expert testimony was required,"
but that, in any event, "Cameron's testimony as a therapist with specific expertise as a
psychiatric nurse was expert testimony," which "assisted the Commission in
making its determination."
6 We also note that challenges to the sufficiency of evidence are not as susceptible to waiver
arguments as are other claims of error. See, e.g., Wis. Stat. §805.17(4)
(challenges to the sufficiency of the evidence to support a trial court's findings "may be
raised on appeal whether or not the party raising the question has objected in the trial court
to such findings."). As we have noted, Wal-Mart's first challenge is essentially that
there was insufficient evidence to support the commission's finding that it fired Schneider
because of his disability, because he did not present expert testimony that his outburst was
caused by his OCD. In its petition for review to the commission, Wal-Mart asserted that
"[t]here is no evidence" that its firing of Schneider on account of his outburst was
a "pretext for discrimination," and that, at the time of the incident, Schneider was
no longer disabled "because his alleged disability was under control through the use of
medication." Thus, while it did not specifically cite the lack of expert evidence,
Wal-Mart did alert the commission to what it believed to be an insufficient record on which
to base a determination that it had fired Schneider because of his disability. Finally, we note
that, in some instances, specific challenges to an agency's findings can be raised for the first
time on appeal. Cf. Goranson v. DILHR, 94 Wis.2d 537,
546, 289 N.W.2d 270 (1980) (Where a hearing examiner's findings are challenged before an
administrative agency, but are adopted by the agency unmodified, "[i]f these findings
are inadequate or contrary to law, the applicant cannot be deemed to have waived the defects
by failing to point out the error to the agency.")
7 Expert testimony may not be a necessity in every case involving a claim that certain
behavior or misconduct is caused by a disability. The causal linkage between certain
behaviors and some disabilities may well be "within the realm of the ordinary
experience of mankind," such as the consumption of alcoholic beverages by one who
suffers from alcoholism. See, e.g., Wis. Stat. §51.45(1); State ex
rel. Jacobus v. State, 208 Wis.2d 39, 48-52, 559 N.W.2d 900 (1997).
8 Our conclusion that expert testimony is required to causally link Schneider's disability with
his misconduct finds support in a decision from another administrative body, the Personnel
Commission, which the commission cited in its present decision. As we have noted,
Wal-Mart contends that, even if a causal link were established between Schneider's OCD and
his outburst, a firing for misconduct cannot be deemed, "in legal effect," to be an
action taken "because of his disability." See, e.g.,
Palmer v. Circuit Court of Cook County, 117 F.3d 351, 352 (7th Cir.
1997). The commission did not discuss this issue in its decision, other than to state its
conclusion that if Schneider "established that the outburst was caused by his disability,
then his termination must be considered, in legal effect, to have been because of his
disability." In support, the commission cited two Personnel Commission decisions,
Bell-Merz v. University of Wisconsin, No. 90-0138-PC-ER (Wis.
Personnel Commission, March 19, 1993), and Conley v. DHSS, No.
84-0067-PC-ER (Wis. Personnel Commission, June 29, 1987).
The Personnel Commission in its Bell-Merz decision noted that
there was no dispute that the complainant suffered from depression and was "perceived
as an alcoholic" by a UW-Whitewater personnel official, and that she was thus
"clearly" a "handicapped individual." It then declared that firing for
misconduct equates to a firing because of the underlying causal disability. Significantly,
however, the Personnel Commission found that while the complainant had established that
some of her absences from work were related to her depression, for many others "there
was no medical opinion whether the depression was causal." Thus, although the
Personnel Commission was willing to equate a firing for misconduct to a firing because of
the underlying disability, it apparently deemed expert opinion necessary to establish the
causal link between the conduct and the disability.
9 We acknowledge that the commission is not "bound by common law or statutory
rules of evidence." See Wis. Stat. §227.45(1). The question, however, is not
whether Schneider should have been permitted to offer his opinion as to what caused his
outburst at the employee meeting, but whether his lay opinion on the matter is sufficient to
sustain his burden of proof on the issue of causation. Notwithstanding a relaxation of the
formal rules of evidence, "[b]asic principles of relevancy, materiality and probative
force shall govern the proof of all questions of fact" in agency proceedings.
Id.
10 Schneider, who filed a separate response brief, points to a letter from an Equal Rights
Division investigator to Cameron which asked her, "[i]n layperson's terms, what is the
[disability]?" Cameron wrote in response, "[s]evere Obsessive Compulsive
Disorder with extreme difficulty with anger management." We agree with Wal-Mart,
however, that the document in question was not introduced into evidence at the hearing on
Schneider's claim, and thus it was not before the ALJ or the commission.
11 Because we conclude that there was insufficient evidence to support the commission's
finding that Schneider's outburst was caused by his OCD, we do not address the several
other issues Wal-Mart raises:whether a firing for misconduct caused by a disability equates to
discrimination on the basis of the disability; whether Schneider's disability was reasonably
related to his ability to adequately perform his job-related responsibilities; and whether
Wal-Mart refused to reasonably accommodate Schneider's OCD.
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