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  • WisBar News
    July 02, 2018

    Supreme Court Says Employee Did Not Prove Firing Because of Disability

    Joe Forward

    Employment Law

    July 2, 2018 – The state Supreme Court has ruled (5-2) that an employer did not violate the Wisconsin Fair Employment Act (WFEA) when it fired an employee for conduct that violated workplace rules, even though the employer knew he had bipolar disorder.

    Charles Carlson alleged that his employer, Wisconsin Bell Inc., violated Wis. Stat. section 111.322(1), which prohibits employers from terminating employees “because of” a disability. Carlson, who worked in Wisconsin Bell’s customer service call center, was terminated for engaging in personal conversations on an internal chat-messaging system, using a “health code” to avoid customer calls, and leaving work early.

    Carlson, who was diagnosed with bipolar disorder and depression and worked at Wisconsin Bell for 25 years, argued that Wisconsin Bell fired him for conduct caused by his mental health disabilities and thus violated section 111.322(1).

    That is, he became very upset one day because he failed a test necessary to work in the collections department. He alleged that his bipolar disorder triggered the conduct.

    Carlson was under a “last chance agreement” after a 50-day suspension for hanging up on customers and avoiding customer calls. Subsequently, Carlson’s supervisors learned that he was medically diagnosed with bipolar disorder, so Carlson argued that when he was ultimately fired, Wisconsin Bell engaged in intentional discrimination.

    A three-judge panel for the District I Appeals Court concluded that the Labor and Industry Review Commission’s interpretation of the facts under the “inference theory of causation” was reasonable and there was enough evidence to find discrimination.

    But in Wisconsin Bell Inc. v. Labor and Industry Review Commission, 2018 WI 76 (June 26, 2018), a 5-2 Supreme Court majority reversed, concluding there is no violation of state law “unless the employee proves the employer knew his disability caused the conduct on which the employer based on adverse employment decision.”

    The majority said Carlson failed to meet his burden to prove that Wisconsin Bell knew it was his bipolar disorder that caused the conduct for which he was fired.

    “[W]hen Wisconsin Bell terminated Mr. Carlson’s employment, it knew nothing more than that its employee claimed his bipolarism caused his conduct,” wrote Justice Daniel Kelly for the majority.

    “LIRC’s memorandum opinion persuasively (albeit unintentionally) demonstrates that this sparse evidence could not have informed Wisconsin Bell that Mr. Carlson’s conduct was the result of his bipolarism,” Justice Kelly continued.

    Justice Kelly noted that neither of Carlson’s health care providers gave unequivocal opinions that the behavior for which Carlson was fired was caused by his mental illness, only that his behavior was “consistent with several of the symptoms of his illness.”

    “Based on the record before us, and for the reasons described above, we conclude there is no substantial evidence that Wisconsin Bell knew Mr. Carlson’s disability caused his conduct on April 20, 2011,” Justice Kelly wrote.

    The majority held that Carlson could not succeed on his claim and the case must be dismissed because “an employer does not engage in intentional discrimination when it bases an adverse employment action on the employee’s conduct unless the employee proves the employer knew his disability caused his conduct.”


    Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Shirley Abrahamson, concluding the majority’s opinion “removes the teeth from the Wisconsin Fair Employment Act’s protections and creates an unworkable standard.”

    A.W. Bradley said “tossing out the long established inference method of proof” in discrimination cases will place an “untenable burden” on employees with disabilities.

    The dissenters also noted that the administrative law judge, LIRC, the circuit court, and the appeals court, all embraced the inference method and sided with Carlson.

    “If the employee is intentionally discriminated against because of a symptom of a disability, that is the same as intentional discrimination on the basis of a disability. This premise is reasonable and correct,” Justice A.W. Bradley wrote.

    “Carlson was terminated because of his reaction to learning he did not pass a test and the steps he took to reach out to coworkers for support as a means of coping with his bipolar disorder. The termination was ‘because of’ his bipolar disorder.”

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