March 29, 2017 – A state appeals court in Milwaukee has ruled that Wisconsin Bell Inc., also known as AT&T Wisconsin, violated state laws that prohibit employment discrimination based on disability when the company terminated an employee diagnosed with bipolar disorder.

In Wisconsin Bell, Inc. v. Labor and Industry Review Commission, 2016AP355 (March 28, 2017), 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 conclude that discrimination occurred.

Charles Carlson worked at Wisconsin Bell since 1986. Since 2007, Carlson worked as a customer service representative, answering phone calls and electronic messages.

Carlson was diagnosed with bipolar disorder in 1997, and disclosed that information to his supervisor in 2006, before moving to the customer service call center. Wisconsin Bell’s policy allowed for temporary accommodations when Carlson experienced symptoms at work.

For instance, he could take breaks from phone lines or call his therapist. He also took time off under the Family and Medical Leave Act in 2008 and 2009. Carlson’s 2006 supervisor relayed information about Carlson’s bipolar disability to a new supervisor, but management did not relay that information to Carlson’s new supervisor when Carlson transferred to a different call center.

Carlson Suspended, then Fired

In 2010, Carlson received a suspension pending termination for disconnecting eight calls over a period of nine minutes, without explanation. That violated a Wisconsin Bell policy prohibiting call avoidance. After a review board hearing, Carlson received a 50-day suspension without pay.

A labor relations manager, representing management, told Carlson he could not receive a disability accommodation involving call avoidance, regardless of his bipolar condition.

Under a “Back to Work Agreement,” Carlson was on probation for a year. He could be terminated for any infraction relating to customer care or breach of integrity.

Ten days after returning to work, Carlson activated a “health code” that takes the employee offline and prevents incoming calls from being routed to that employee. Employees generally initiate health codes to use the restroom, as the average health code is three to five minutes.

But Carlson’s health code was active for 38 minutes. He activated it before speaking with a direct supervisor about leaving work because of illness. While the health code was active, an operations manager was using an inter-office, electronic communication chat system called “Q-Chat” to question Carlson on the excessive length of his health code activation.

Carlson ultimately replied to the Q-Chat, stating he would be leaving work because of illness. But then he sent another Q-Chat to the operations manager, a woman. He said: “TTYL. Thank you. Talk to you later and thanks for being there as one of my lesbian friends.” When the operations manager questioned the message, Carlson wrote: “Sorry wrong window.”

Carlson’s supervisor reviewed the Q-Chats upon notification from the operations manager, who suspected that Carlson was Q-chatting about personal matters while his health code was activated. The inspection revealed that Carlson was Q-chatting with other co-workers during that time, as well as a union representative concerning his decision to leave work early.

The next day, Carlson received another notice of suspension pending termination. Ultimately, a review board determined that Carlson violated his Back to Work Agreement and he was fired based on his “continued and repeated behavior of avoiding customer calls.”

Carlson had argued that he initiated the health code after learning that his request for transfer to a new department was denied, and was chatting with co-workers who were friends for support, as suggested by his therapist. He had intended to stay at work, despite his request to leave early, he said, but the operations manager’s inquiries had triggered an emotional response and he did not feel he would be able to handle customer calls in a professional manner.

Carlson Files Complaint

Carlson filed two complaints with the Equal Rights Division of Wisconsin’s Department of Workforce Development. The first complaint related to his 50-day suspension.

The second complaint related to his termination. In both, he alleged that Wisconsin Bell’s actions were based on his disability, in violation of the Wisconsin Fair Employment Act (WFEA).

An administrative law judge (ALJ) ruled in favor of Carlson, ordering his reinstatement with back pay, attorney’s fees, and costs. The ALJ also ordered Wisconsin Bell to make reasonable accommodations for Carlson’s bipolar disorder disability, consistent with the WFEA.

The Labor Industry Review Commission (LIRC) reversed with respect to Carlson’s 50-day suspension, concluding Wisconsin Bell suspended Carlson based on conduct caused by his disability, but his managers and supervisors did not have knowledge of his disability.

However, LIRC affirmed as to Carlson’s termination, concluding the actions that led to Carlson’s termination after he returned from his 50-day suspension were based on his bipolar disorder disability, but this time the supervisors and managers were aware of Carlson’s disability.

LIRC affirmed the order on reinstatement with back pay, attorney’s fees and costs. LIRC also affirmed the order requiring Wisconsin Bell to make reasonable accommodations.

Inference Theory of Causation

Wisconsin Bell appealed to the Milwaukee County Circuit Court, which upheld LIRC’s use of the “inference theory of causation” to find that Wisconsin Bell was liable under the WFEA. But the circuit court remanded the case, finding that LIRC’s analysis on facts/issues was incomplete.

Specifically, the circuit court said it wasn’t clear that Wisconsin Bell knew Carlson’s conduct was caused by his bipolar condition when his employment was terminated. Wisconsin Bell appealed, arguing against the use of the inference method of establishing causation.

A three-judge panel for the Court of Appeals, reviewing the LIRC decision and granting great weight deference to LIRC’s interpretation of the applicable statute, reversed the circuit court.

Under Wis. Stat. section 111.322(1), employment discrimination occurs if, among other things, an employer terminates an employee’s job “because of” a disability. The panel examined LIRC’s interpretation of what it means to terminate employment “because of” a disability.

The panel noted that LIRC will find discrimination “because of” a disability if the employer acts with 1) discriminatory animus or 2) acts “on the basis of dissatisfaction with a problem with that employee’s behavior or performance which is caused by the employee’s disability.”

“Under this second type of discrimination, causation is inferred based on the premise that ‘[i]f an employee is discharged because of unsatisfactory behavior which was a direct result of a disability, the discharge is, in legal effect, because of that disability,’” wrote Appeals Court Judge William Brash III. “In other words, the focus of the analysis for the inference method of causation is whether the disability was the cause of the unsatisfactory conduct that led to the discharge.”

Wisconsin Bell challenged this “theory of causation” as unreasonable and argued that the issue is essentially one of first impression, so no deference should be given to LIRC’s interpretation.

The three-judge panel disagreed, noting that the “inference method of causation” issue has been applied by LIRC in numerous cases in the last 20 years, but were not appealed.

“[W]e reject Wisconsin Bell’s contention that this is an issue of first impression that does not require any deference to be granted to LIRC’s decision,” wrote Judge Brash, also noting that LIRC’s interpretation of the “inferred causation theory” is a reasonable interpretation of WFEA.

Alternatively, Wisconsin Bell argued that there was insufficient evidence to support LIRC’s conclusion that Wisconsin Bell knew of Carlson’s disability and fired him based on conduct related to his disability. The panel noted evidence that management knew of the disability when he was terminated, because Carlson noted his disability in prior hearings on his suspension.

Wisconsin Bell also argued that the causal link was insufficient, because letters from Carlson’s doctors did not establish that Q-Chatting with coworkers when he should have been answering customer calls or leaving early from work were symptoms of his bipolar disorder. In addition, Carlson never told his supervisor that he was experiencing symptoms of his bipolar disorder.

But the panel noted that Carlson’s conduct was consistent with symptoms described by his doctors in letters, and in deposition testimony, submitted prior to his 50-day suspension.

That is, management knew that Carlson might react differently to news, such as news that he did not obtain the department transfer he was seeking. Carlson’s doctor reviewed the Q-chats to determine that he seemed “frantic” and was searching for people to help him in that moment.

“Based on all the evidence, LIRC determined that Mr. Carlson had in fact established the link between his conduct and his condition, and that Wisconsin Bell’s response, that it simply did not believe him, was insufficient to contradict this evidence,” Judge Brash wrote.

The panel affirmed LIRC’s conclusion that Carlson’s mental illness caused the conduct that served as the basis for his termination. Thus, Wisconsin Bell violated the WFEA.

“We conclude that LIRC’s interpretation of WFEA, particularly the application of the inference theory of causation, to which we have accorded great weight deference, is reasonable,” Judge Brash wrote. “We further conclude that there is sufficient evidence to support the imposition of liability on Wisconsin Bell based on the application of the inference method to these facts.”