                                                                   2018 WI 76

                  SUPREME COURT              OF   WISCONSIN
CASE NO.:              2016AP355
COMPLETE TITLE:        Wisconsin Bell, Inc.,
                                 Petitioner-Appellant-Petitioner,
                            v.
                       Labor and Industry Review Commission and Charles
                       E. Carlson,
                                 Respondents-Respondents.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                           Reported at 375 Wis. 2d 293, 895 N.W.2d 57
                               PDC No: 2017 WI App 24 - Published

OPINION FILED:         June 26, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         December 1, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Richard J. Sankovitz

JUSTICES:
   CONCURRED:
   DISSENTED:          A.W. BRADLEY, J., dissents, joined by
                       ABRAHAMSON, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For 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.


       For the respondent-respondent,             Labor and Industry Review
Commission, there was a brief filed by Jeffrey J. Shampo, John
L. Brown, and Wisconsin Labor and Industry Review Commission,
Madison.          There   was   an   oral   argument   by   John    L.   Brown   and
Jeffrey J. Shampo.
    For 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 M. Mihelich.


    There     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, P.C.,
Milwaukee.


    There     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.


    There     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.




                                        2
                                                                       2018 WI 76
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.       2016AP355
(L.C. No.    2015CV2133)

STATE OF WISCONSIN                          :            IN SUPREME COURT

Wisconsin Bell, Inc.,

              Petitioner-Appellant-Petitioner,                     FILED
      v.                                                      JUN 26, 2018
Labor and Industry Review Commission and                         Sheila T. Reiff
Charles E. Carlson,                                           Clerk of Supreme Court


              Respondents-Respondents.




      REVIEW of a decision of the Court of Appeals.              Reversed.



      ¶1      DANIEL KELLY, J.      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).1


      1
        Because the relevant statutes have not changed during the
pendency of this matter, all subsequent references to the
Wisconsin Statutes are to the 2015-16 version unless otherwise
indicated.
                                                                                    No.     2016AP355



       ¶2        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).2                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 system?"

       ¶3        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.
       ¶4        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.,


       2
       This is a review of a published court of appeals opinion,
Wisconsin Bell, Inc. v. LIRC, 2017 WI App 24, 375 Wis. 2d 293,
895 N.W.2d 57, which reversed the Milwaukee County Circuit
Court, the Honorable Richard J. Sankovitz, presiding, and
remanded with instructions.


                                                 2
                                                                       No.     2016AP355



¶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.

                                 I.      BACKGROUND

                        A.     Mr. Carlson's Disability

      ¶5    Mr. Carlson suffers from bipolar I disorder, a mental

illness that can affect an individual physically, socially, and

intellectually.3        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 2002.




      3
       Mr. Carlson has also been diagnosed with dysthymic
disorder and major depressive disorder, which are also mental
impairments.     However,   because the   disability  primarily
referenced throughout the record and briefing in regard to Mr.
Carlson's termination is Mr. Carlson's bipolar disorder, we,
too, focus on that disability.


                                           3
                                                                                      No.    2016AP355



       ¶6        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

support.

              B. Mr. Carlson's Wisconsin Bell Employment History

       ¶7        Mr.    Carlson       was         a       Wisconsin       Bell     employee          for

approximately 25 years prior to his termination in May 2011.4                                         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

"Union").

       ¶8        As a TSR, Mr. Carlson worked with customers and field

technicians        to       resolve    technical            issues       related      to    Wisconsin


       4
       Wisconsin Bell first employed Mr. Carlson in 1980 and at
some point he left Wisconsin Bell for approximately five or six
years prior to returning.


                                                      4
                                                                                  No.     2016AP355



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.

       ¶9     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.

                           1. Mr. Carlson's 2010 Suspension

       ¶10    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
                                               5
                                                                        No.    2016AP355



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.5                               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.

       ¶11       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

       5
       There are conflicting references in the record as to
whether Mr. Carlson hung up on eight calls or twelve calls
during that time period. It appears the discrepancy is related
to the number of calls Mr. Carlson actually terminated
improperly versus the number of calls Ms. Weber personally
observed him improperly terminate.     For the purposes of this
opinion, we need not resolve this discrepancy.


                                              6
                                                                       No.     2016AP355



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,6 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.

       ¶12    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 following:


       6
        Dysthymia has been defined as "despondency" and "morbid
anxiety and depression accompanied by obsession."      Dysthymia,
Webster's Third New International Dictionary 712 (1986).


                                            7
                                                                No.   2016AP355


         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 circumstances.

         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.
Mr. 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

    ¶13   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.

    ¶14   Mr. Carlson then approached his supervisor, Operations
Manager   Kristi   Reidy,   to    determine      whether   he    would    face

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                                                                      No.     2016AP355



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.7        Although     Mr.   Carlson

informed her that he "wasn't doing well," he did not otherwise

explain his symptoms or mention his bipolar disorder.

      ¶15      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.8

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


      7
       At the time, Wisconsin Bell counted work absences greater
than two hours and less than two hours differently. An absence
greater than two hours was considered an "occurrence," whereas
an absence less than two hours was considered a "partial
absence."    The previous day, April 19, 2011, Mr. Carlson
received a written warning for his eighth partial absence in the
previous twelve months.      If the absence Mr. Carlson was
contemplating were to be treated as a partial absence rather
than an occurrence, he could have been subjected to a one-day
suspension without pay.
      8
       After reviewing Mr. Carlson's Q-chats, Wisconsin Bell
determined that unlike Mr. Carlson, his co-workers had been
performing their job duties and had not been in call-blocking
status during the course of the chats.


                                           9
                                                                           No.    2016AP355



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.

       ¶16   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.

       ¶17   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
                                            10
                                                                             No.    2016AP355



as a coping mechanism, or to his absence having been related to

his bipolar disorder.

       ¶18    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.

       ¶19    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.


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                                                                                  No.    2016AP355



       ¶20       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.

                                C.     Procedural Background

       ¶21       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 claim.9




       9
       Although  the   ALJ   confirmed  that  Mr.   Carlson  was
withdrawing his retaliation claim, the ALJ (and later LIRC), for
whatever reason, included a finding in his decision that Mr.
Carlson had failed to establish that Wisconsin Bell had violated
the WFEA by terminating him in retaliation for his having
previously filed a complaint.


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    ¶22    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 costs.

    ¶23    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.

    ¶24    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
                                      13
                                                                No.   2016AP355



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 and costs.

      ¶25   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   focus    "from   whether     the

disability caused the discharge to whether the disability caused

the unsatisfactory conduct."

      ¶26   Wisconsin Bell petitioned the circuit court for review

of LIRC's decision regarding the termination of Mr. Carlson's




                                       14
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employment.10         In a very thoughtful written decision, the circuit

court       concluded       that   it    is    reasonable          to   infer      intent      from

surrounding         circumstances,            but    decided        LIRC's      findings       and

analysis       were     incomplete        because          it     had   failed     to    address

whether       Wisconsin       Bell      knew    at    the        time   it   terminated        Mr.

Carlson that his conduct was caused by his bipolar disorder.                                    So

it remanded the matter to LIRC for further proceedings.

       ¶27     Wisconsin       Bell      appealed      the        circuit    court's      order.

The court of appeals determined that great weight deference to

LIRC's interpretation was appropriate11 and concluded that LIRC's

use    of     the   "inference        method"        was     reasonable,      but       that    the

employer must know of the causal link between the disability and

the conduct on which the employer based its employment action.

Wis.        Bell,   Inc.      v.      LIRC,         2017        WI App 24,      ¶¶45-46,        375

Wis. 2d 293, 895 N.W.2d 57.                     The court of appeals concluded,

contrary       to     the    circuit      court,           that    there     was    sufficient

evidence known to Wisconsin Bell at the time it terminated Mr.

Carlson's employment that his behavior on April 20th was caused


       10
       Mr. Carlson did not seek review of LIRC's denial of his
claim related to Wisconsin Bell's suspension decision (ERD Case
No. CR201102363).   Therefore, the only matter before the court
is ERD Case No. CR201200428, which addresses Wisconsin Bell's
termination of Mr. Carlson's employment.
       11
       See Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 661,
539 N.W.2d 98 (1995) ("Once it is determined . . . that great
weight deference is appropriate, we have repeatedly held that an
agency's interpretation must then merely be reasonable for it to
be sustained."), overruled by Tetra Tech EC, Inc. v. DOR, 2018
WI 75, ¶¶82-84, ___ Wis. 2d ___, ___ N.W.2d ___.


                                                15
                                                                    No.   2016AP355



by his disability.         Id., ¶¶54-59.         Accordingly, it reversed the

circuit court and directed it to enter an order affirming LIRC's

decision.    Id., ¶64.       We granted Wisconsin Bell's petition for

review.

                           II.   STANDARD OF REVIEW

      ¶28   In cases involving administrative agencies we review

the decision of the agency, not the decision of the court of

appeals or circuit court.            Estate of Szleszinski v. LIRC, 2007

WI 106, ¶22, 304 Wis. 2d 258, 736 N.W.2d 111.                   Judicial review

of LIRC's decisions is governed by Wis. Stat. § 111.395, which

provides that "[f]indings and orders of the commission under

this subchapter are subject to review under ch. 227."

      ¶29   We    review    an   administrative      agency's    interpretation

and application of statutes de novo.                Tetra Tech EC, Inc., ___

Wis. 2d ___, ¶84 ("[W]e will review an administrative agency's

conclusions of law under the same standard we apply to a circuit

court's conclusions of law——de novo.").                 Consequent upon that

review, "[t]he court shall set aside or modify the agency action
if   it   finds   that     the   agency    has    erroneously    interpreted     a

provision    of    law     and   a   correct       interpretation     compels     a

particular action, or it shall remand the case to the agency for

further action under a correct interpretation of the provision

of law."    Wis. Stat. § 227.57(5).

      ¶30   Our review of LIRC's findings of fact is limited:                   "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
                                          16
                                                                      No.      2016AP355



on any disputed finding of fact."                 Wis. Stat. § 227.57(6).              We

will set aside or remand a matter to the agency based on a

factual deficiency only if "the agency's action depends on any

finding of fact that is not supported by substantial evidence in

the record."       Id.; see also Crystal Lake Cheese Factory v. LIRC,

2003 WI 106, ¶27, 264 Wis. 2d 200, 664 N.W.2d 651.                    "Substantial

evidence does not mean a preponderance of evidence.                            It means

whether,     after        considering   all       the    evidence         of    record,

reasonable minds could arrive at the conclusion reached by the

trier of fact."       Milwaukee Symphony Orchestra, Inc. v. DOR, 2010

WI 33, ¶31, 324 Wis. 2d 68, 781 N.W.2d 674.

                                 III. ANALYSIS

           A.      Employment Discrimination Under the WFEA

    ¶31    An employer engages in employment discrimination if it

terminates    a    person     from   employment         "because     of     any   basis

enumerated    in     s.    111.321."       Wis.     Stat.     § 111.322(1).            As

applicable here, Wis. Stat. § 111.321 prohibits an employer from

engaging     in    employment     discrimination         on    the    basis       of    a
"disability."         Id.       However,     an    employer     may       nonetheless

terminate a person's employment if "the disability is reasonably

related to the individual's ability to adequately undertake the

job-related responsibilities of that individual's employment."

See Wis. Stat. § 111.34(2)(a).

    ¶32    Mr. Carlson's claim of employment discrimination under

Wis. Stat. § 111.321 can succeed only if the following three

propositions are true:           (1) he has a disability; (2) Wisconsin
Bell terminated his employment "because of" that disability; and
                                        17
                                                                          No.     2016AP355



(3)   Wisconsin      Bell   had    no     justification        under       Wis.     Stat.

§ 111.34     for    terminating     his    employment.         See     Crystal        Lake

Cheese Factory, 264 Wis. 2d 200, ¶67 (citing Target Stores v.

LIRC, 217 Wis. 2d 1, 9-10, 576 N.W.2d 545 (Ct. App. 1998)); see

also Brown Cty. v. LIRC, 124 Wis. 2d 560, 572-73, 369 N.W.2d 735

(1985).12        The parties agree that Mr. Carlson has a disability

cognizable by § 111.321.            Therefore, our analysis begins with

the second proposition.

      ¶33    Under    the   disparate      treatment     theory,          an     employer

engages     in    employment     discrimination    contrary          to    Wis.     Stat.

§ 111.321 if it "treats some people less favorably than others

because they belong to a protected class."                Racine Unified Sch.

Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707 (Ct. App.

1991).      To be actionable, the employer must have acted with

discriminatory       intent.       Id.     ("[A]   complainant            asserting      a

disparate treatment theory must prove discriminatory intent to

prevail, . . . .").

                 B. LIRC's Intentional Discrimination Analysis
      ¶34    LIRC    says   it    may     use   either    of     two       methods      in

determining whether Wisconsin Bell intentionally terminated Mr.

Carlson's employment "because of" his disability.                               The first

      12
       Mr. Carlson bears the burden of proof with respect to the
first two propositions; with respect to the third proposition,
Wisconsin Bell bears the burden of proving it had a legally-
cognizable justification for the adverse employment action. See
Brown Cty. v. LIRC, 124 Wis. 2d 560, 572-73, 369 N.W.2d 735
(1985); see also    Crystal Lake Cheese Factory v. LIRC, 2003
WI 106, ¶67, 264 Wis. 2d 200, 664 N.W.2d 651.


                                          18
                                                                          No.   2016AP355



method   asks     whether      the   employer       held    "actual      discriminatory

animus       against     an    employee      because       that    employee     was     an

individual with a disability[.]"                  Maeder v. Univ. of Wisconsin-

Madison, ERD Case No. CR200501824 (LIRC June 28, 2013).                                The

alternative      method,       known    as    the      "inference     method,"    finds

intent to discriminate when an employer bases its adverse action

on "a problem with that employee's behavior or performance which

is    caused    by     the    employee's     disability."          See    id.   ("If    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.").

       ¶35     LIRC used the inference method in Mr. Carlson's case,

and described it as follows:

       [T]he commission determines the employer's intent by
       inference based on the surrounding circumstances. Its
       analysis begins by stating a logical chain of
       causation:    1) if an employee's disability causes
       certain behavior, and 2) the employer takes action
       against the employee on the basis of that behavior,
       then 3) the employer has taken action against the
       employee because of the disability.
Inferring discriminatory intent from circumstantial evidence is,

of course, quite common.             See, e.g., Stern v. Thompson & Coates,

Ltd., 185 Wis. 2d 220, 236-37, 517 N.W.2d 658 (1994) (stating

that a person's state of mind "must be inferred from the acts

and    statements       of    the    person,      in   view   of    the    surrounding

circumstances." (citation and quotation marks omitted)).                               The

question, therefore, is whether LIRC's version of the "inference




                                             19
                                                                              No.    2016AP355



method" preserves the employee's burden of proving an employer's

intent to discriminate against him because of his disability.

      ¶36      LIRC assures us it has always required "proof of an

employer's discriminatory state of mind . . . before liability

could attach," and cites several of its cases to illustrate its

commitment to this principle.                      The citations, however, do not

support the proposition.                In Conley v. DHSS, Case No. 84-0067-

PC-ER      (Wis.   Personnel          Comm'n    June    29,     1987),   the        Personnel

Commission13 said the employer cannot defeat the "because of"

element of the employee's claim "simply by stating that its

motivation for discharging the complainant was his inability to

perform      his      duties    where        any     such    inability    has       resulted

directly from the handicapping condition."                        Although the causal

link between Conley's disability and his inability to perform

his     duties     was    obvious       to     all     concerned,      nothing       in   the

Personnel Commission's analysis actually required the employee

to prove the employer was aware of the link.                              That is, the

Personnel Commission's analysis would allow an employee to prove
discrimination simply by demonstrating he had a disability and

he was terminated because of behavior caused by that disability.

The     same     is    true      of     Bell-Merz       v.     Univ.     of     Wis.      Sys.

(Whitewater),         Case.     No.    90-0138-PC-ER         (Wis.     Personnel       Comm'n

Mar. 19, 1993), where the employer knew of the causal connection

between     disability         and    conduct       resulting    in    termination,        but

      13
       LIRC inherited part of the Personnel Commission's duties
after it was abolished in 2003.


                                               20
                                                                         No.     2016AP355



nothing      in     the    analysis     required        that   it   know         of     the

connection.14        And Stroik v. Worzalla Publishing Co., ERD Case

No. CR200002461 (LIRC July 16, 2004), did not even attempt to

address whether discriminatory intent requires an employer to

know the connection between an employee's disability and the

conduct for which his employment is terminated.                      In fact, LIRC

did not cite a single case in which it required proof that the

employer knew the employee's disability caused his conduct.

      ¶37      LIRC approached the proposition most closely when it

cited      Volkmann,      in   which   it   found   no    discriminatory          intent

because the employer had never been informed that the employee

had a disability.           Volkmann v. Colonial Mgmt. Grp. LP, ERD Case

No. CR201102513 (LIRC Jan. 30, 2015).                   That is a necessary, but

not sufficient, step in showing that it always requires proof of

intent before finding liability.                 Ignorance of the employee's

disability        must    certainly    foreclose    a    finding    of    intentional

discrimination.           But that still leaves the question of whether

LIRC would require the employee to prove the employer knew of
the connection between a disability and the conduct for which it

terminated employment.            That is the question before the court,

and   Volkmann       provides     no   answer.      Similarly,      in         Wester    v.


      14
       See also Stelloh v. Wauwatosa Sav. Bank, ERD Case No.
CR200700340 (LIRC June 19, 2012) (same); Crivello v. Target
Stores, ERD Case No. 9252123 (LIRC Aug. 14, 1996), aff'd sub nom
Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App.
1998) (same); Staats v. Ctys. of Sawyer and Bayfield, ERD Case
No. 9500906 (LIRC Oct. 27, 1997) (same).


                                            21
                                                                            No.    2016AP355



Charter Media/Communications, LIRC said an employee may prove

intentional        discrimination             by      showing          "the        alleged

discriminators would have had reason to be aware that she was

disabled,    or    perceived       her   to   be    disabled,     at    the       time   the

allegedly    discriminatory         actions        were    taken."      ERD       Case   No.

CF200003872 (LIRC Oct. 15, 2004).                  But it said nothing about any

requirement that the employer know of the connection between the

disability and the employee's conduct.

       ¶38   LIRC has been cautioned before about the significance

of the causal relationship between an employee's disability and

his conduct when establishing discriminatory intent under the

inference method.          Almost two decades ago, the court of appeals

reviewed     a    case    in     which   LIRC       "declared,       without       further

discussion, that a firing for misconduct equates to a firing

because of the underlying causal disability."                        Wal-Mart Stores,

Inc.    v.   LIRC,       2000    WI App 272,        ¶28,    240   Wis. 2d 209,           621

N.W.2d 633.       The court of appeals delicately questioned whether

this   rationale     was        sufficient    for     a    finding     of     intentional
discrimination:

       The question of whether a firing for misconduct caused
       by a disability equates, as a matter of law, to a
       firing because of disability, is of some importance,
       and it involves significant policy implications.    We
       therefore invite the commission on remand to expand on
       the rationale for its adoption of the Personnel
       Commission's interpretation, which is the subject of
       some disagreement among federal courts.




                                          22
                                                                             No.     2016AP355



See id.       The Wal-Mart Stores, Inc. matter settled before the

agency could address it on remand, so there was no occasion to

explore the question further.

      ¶39     We pick up where Wal-Mart Stores, Inc. left off.                               We

agree     that      the    transitive        nature        of     LIRC's         inferential

methodology is an important matter.                       In fact, the methodology

cannot    function        without    it.       LIRC       says    this      is     where   its

analysis of discriminatory intent begins, but it also appears to

be where it ends.           And it is a very premature end.                       Because it

goes no further, LIRC's methodology actually requires a double

inference      to    reach     its     goal,        and    only       one    of     them    is

justifiable.         The    first    is    that,      when       an   employer      observes

conduct caused by an employee's disability, the employer knows

of the causal connection.                 The other is that, in terminating

employment because of the employee's conduct, the employer is

actually terminating him because of his disability.

      ¶40     The first inference presents an insuperable problem

for LIRC's methodology.             In the search for discriminatory intent
via   the     inferential      method,       there        is,    quite      literally,       no

evidence more important than the employer's knowledge of the

causal      connection       between       conduct        and     disability.              This

knowledge is what allows us to logically transfer the employer's

intent from the former to the latter.                     If Wisconsin Bell did not

know of this connection, the most that could be said of its

state    of   mind    would    be     that     it    intended         to    terminate      Mr.

Carlson's employment because of his conduct.                          The WFEA does not
forbid this.         It forbids Wisconsin Bell from terminating his
                                             23
                                                            No.    2016AP355



employment because of his disability.            Excusing the employee

from proving the employer's knowledge of the causal connection

allows LIRC to find intentional discrimination where there is no

proof of it.

     ¶41   For these reasons, LIRC's double-inference methodology

is structurally flawed.      We conclude that 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.15

     ¶42   As   we   considered     LIRC's   arguments    concerning    its

double-inference     methodology,    we   gave   "due    weight"   to   its

"experience, technical competence, and specialized knowledge."

See Wis. Stat. § 227.57(10); see also Tetra Tech EC, Inc., ___

Wis. 2d ___, ¶¶77-79, 84.     The factors informing how much weight

is due include the considerations we previously used in deciding

whether we would defer to an administrative agency's conclusions


     15
       Justice Ann Walsh Bradley endorses LIRC's double-
inference methodology because without it, she says, the WFEA
loses its "teeth."   Dissent, ¶¶55, 63.   She says this approach
"reasonably equates discrimination against the symptoms of a
disability with discrimination against a person who has a
disability."   Id., ¶66.   The WFEA protects individuals against
discrimination because of a disability; Justice Bradley wants to
protect disabilities against discrimination because        of a
symptom. The two are not the same, and only the former may be
found in our statutes.   Allowing one to stand in for the other
could make an employer liable for intentionally discriminating
against a person because of his disability without even knowing
he has one.   There is quite certainly nothing reasonable about
that.   And that is why we cannot countenance LIRC's double-
inference methodology.


                                     24
                                                                         No.     2016AP355



of law, such as:            "(1) whether the legislature made the agency

responsible for administering the statute in question; (2) the

length of time the administrative agency's interpretation has

stood; (3) the extent to which the agency used its expertise or

specialized         knowledge    in     developing       its     position;     and      (4)

whether the agency's perspective would enhance uniformity and

consistency of the law."               Tetra Tech EC, Inc., ___ Wis. 2d ___,

¶79.

       ¶43    We recognize that the legislature charged LIRC with

deciding      contested       cases    under     the    WFEA,     and   it     certainly

handles many such cases every year.16                  Additionally, we recognize

the     importance       of     "uniformity       and         consistency"       in     the

application of the WFEA.               Employers and employees alike need a

stable       framework        within     which         they     can     manage        their

relationships.         However, the need for stability and LIRC's long-

standing practice do not persuade us that its double-inference

methodology is consistent with the WFEA.

                       C.      Wisconsin Bell's Knowledge
       ¶44    The     inferential       method     of     proving       discriminatory

intent, properly formulated, requires that we now address what

Wisconsin Bell knew about the causal link between Mr. Carlson's

behavior and his disability.              Specifically, we are interested in


       16
       Statistics regarding the number of appeals LIRC receives
and the number of decisions issued per year can be found at
http://lirc.wisconsin.gov/lirc_stats.htm (last visited June 5,
2018). Over the past five years (2013-2017), LIRC has issued an
average of 87 equal rights decisions per year.


                                           25
                                                                        No.        2016AP355



what    Wisconsin        Bell   knew   about    that   subject    at    the    time       it

terminated         Mr.   Carlson's     employment.       This    is    the    necessary

temporal point of reference, of course, because our project here

is to discover the intent behind Wisconsin Bell's termination

decision.           One cannot retroactively intend something, so the

intent must precede or accompany the act.17                       Therefore, what

Wisconsin Bell (or the ALJ or LIRC, for that matter) learned

about       the    causal   connection    after    the   termination          is     of   no

import because only contemporaneous knowledge can account for

the intent that motivates an action.

       ¶45        When   Wisconsin       Bell     terminated          Mr.     Carlson's

employment, here is what it knew:

                 At the review hearing related to the incident of
                  February 18, 2010, Mr. Carlson claimed that his
                  disability caused him to hang up on customer
                  calls.

                 Dr. Siegel's letter of March 1, 2010, said Mr.
                  Carlson suffers from "bipolar disorder-depressed
                  type," which is "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


       17
        Black's Law Dictionary defines "intent" as "[t]he state
of mind accompanying an act, esp[ecially] a forbidden act."
Intent, Black's Law Dictionary (10th ed. 2014).        Likewise,
Webster's definition of "intent" includes "the state of mind or
mental attitude with which an act is done" and "the design or
purpose to commit any wrongful . . . act that is the natural and
probable consequence of other voluntary acts or conduct."
Intent, Webster's Third New International Dictionary 1176
(1986).


                                           26
                                                                  No.     2016AP355


              rather quickly and [are] often                 triggered    by
              relatively minor frustrations."

             Mr. Cohen's letter, also prepared for the review
              board hearing, said he was seeing Mr. Carlson for
              individual psychotherapy services for dysthymia,
              major depressive disorder-recurrent, and bipolar
              disorder.

             At the review hearing related to the incident on
              April 20, 2011, Mr. Carlson maintained that he
              had become upset when he learned he had failed
              the collections test and put himself in health
              code because he was too upset to take calls. He
              said that he Q-chatted as a way to get support
              from his co-employees.      As with the prior
              incident, Mr. Carlson said his disability caused
              his conduct.

             Mr. Carlson offered a new letter from Dr. Siegel
              to support his claim.   The letter said that Mr.
              Carlson continued to be diagnosed as bipolar,
              depressed   type,   and  it   summarized  recent
              medication changes.
    ¶46       The    sum   total    of   information   at     Wisconsin    Bell's

disposal consisted of Mr. Carlson's claim of causation and three

letters confirming his bipolarism——none of which mentioned any

causal       nexus   between       his   disability    and     conduct.        The

consequences of bipolarism are not matters of common knowledge.




                                         27
                                                                      No.    2016AP355



Because      of   the       amorphous   nature    of   this     disability,18      an

employee's bare assertion of causality cannot be credited as

authoritative.       To conclude otherwise would allow Mr. Carlson to

unilaterally bring any of his misbehavior under the protective

cloak of the WFEA.            As LIRC has previously recognized, this is

neither practical nor rational.             See, e.g., Maeder, ERD Case No.

CR200501824 (LIRC June 28, 2013) ("[I]t is clear that it cannot

simply be presumed that every act of bad behavior engaged in by

a   person    with      a   mental   disorder     is   caused   by    that    mental

disorder.").       And as the circuit court aptly observed, "[i]f an

employer     isn't      aware   that    certain   behavioral     or    performance

problems are symptomatic of a given disability, it hardly seems

reasonable to accuse the employer of being motivated by the

underlying disability."

      ¶47    The letters Mr. Carlson presented do not even purport

to put Wisconsin Bell on notice of the connection between Mr.

Carlson's disability and his behavior at work.                   Doctor Siegel's

letter of March 1, 2010, says "I am writing this letter at your


      18
       Dr. Siegel said "[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."    The amorphousness
of this description is why expert testimony is needed to
determine whether "an individual's bad behavior is caused by a
mental disorder from which the individual suffers."     Maeder v.
Univ. of Wisconsin-Madison, ERD Case No. CR200501824 (LIRC June
28, 2013) (citing      Wal-Mart Stores, Inc. v. LIRC, 2000
WI App 272, ¶16, 240 Wis. 2d 209, 621 N.W.2d 633).


                                          28
                                                                  No.     2016AP355



request to identify your current diagnosis."                  So not only does

the letter not describe a causal connection regarding the events

of February 18, 2010, Mr. Carlson apparently did not ask him to

say anything about that subject.           This omission is especially

significant because Dr. Siegel knew how Mr. Carlson was going to

use the letter.      He wrote:     "I understand you will be passing

this letter along to your employer in a current work-related

problem."     And    yet   the   letter   says    not     a    word     about   any

causative link.

     ¶48    Mr. Cohen's four-sentence letter of February 24, 2010,

is no more enlightening than Dr. Siegel's missive.                       It, too,

identified several diagnoses and acknowledged that Mr. Carlson

had requested the letter for use in the upcoming review board

hearing.    As with Dr. Siegel's letter, it says nothing about any

connection between Mr. Carlson's disability and his conduct on

February 18, 2010 and April 20, 2011.

     ¶49    Doctor   Siegel   provided    his    second       letter    after   the

events of April 20, 2011.        He said he was "writing to update you
[Mr. Carlson] on your treatment, condition and diagnosis and

following up on my previous letter to you on 03/01/2010."                       The

update was that his diagnosis remained as it was before.19


     19
       Notwithstanding the letters' enigmatic generalities,
Justice Ann Walsh Bradley claims "these letters precisely
describe   the  actions   that  ultimately  led   to  Carlson's
termination."    Dissent, ¶73.    There was, quite literally,
nothing precise about these letters, and she offers no quote to
suggest otherwise.


                                    29
                                                                        No.    2016AP355



       ¶50    Therefore,          when     Wisconsin        Bell     terminated      Mr.

Carlson's      employment,         it     knew    nothing    more    than     that   its

employee      claimed       his   bipolarism      caused    his    conduct.      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.         LIRC conceded that spotting such a connection is

beyond the ken of laymen when it acknowledged that the evidence

"is technical and scientific and calls for expert testimony."

And even with the benefit of hindsight, expert testimony, and a

three-day hearing, the causal connection can best be described

as questionable.            LIRC admits that "neither Cohen nor Dr. Siegel

gave unequivocal opinions that Carlson's behavior on February

18, 2010 was caused by his mental illness."                        The most it could

say was that "his behavior was outside his normal pattern of

behavior, and was consistent with several of the symptoms of his

illness."      "Consistent with" is the language of correlation, not

causation.         Nonetheless, LIRC found causality in both incidents.
       ¶51    With all the benefit of hindsight, LIRC's belief that

there is substantial evidence of a causal connection between Mr.

Carlson's disability and his conduct may be reasonable.                              But

that is not the issue we must address.                        Our task here is to

determine whether there is substantial evidence in the record

that     Wisconsin      Bell,       not     LIRC,    knew     that    Mr.     Carlson's

bipolarism caused his conduct.                   And we must answer that inquiry

as     of    the     date     Wisconsin      Bell     terminated      Mr.     Carlson's
employment, not retrospectively with the benefit of a three-day
                                             30
                                                                    No.   2016AP355



hearing and the testimony of two experts.                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, 2011.20

      ¶52    For   the   sake    of   completeness,      we   note    that     LIRC

addressed the state of Wisconsin Bell's knowledge as of April

20,   2011,     but   cryptically,        and    not   for    the    purpose    of

discovering discriminatory intent.              After an employee proves the

employer intentionally discriminated against him because of his

disability,     the   employer    may     nonetheless    avoid      liability   by

proving the disability prevented the employee from adequately

undertaking his job-related responsibilities.                  See Wis. Stat.

§ 111.34(2)(a).21        The    inquiry    under   § 111.34(2)(a),        however,

does not commence until after there is a conclusion that the

      20
       This does not require us to set aside any of LIRC's
factual findings because, in determining whether Mr. Carlson
established that Wisconsin Bell intentionally discriminated
against him because of his disability, it made no findings at
all about whether Wisconsin Bell knew of the causal connection
between the disability and his conduct.
      21
           Wisconsin Stat. § 111.34(2)(a) provides:

      Notwithstanding s. 111.322, it is not employment
      discrimination because of disability to refuse to
      hire, employ, admit or license any individual, to bar
      or terminate from employment, membership or licensure
      any individual, or to discriminate against any
      individual in promotion, compensation or in terms,
      conditions   or   privileges  of   employment  if   the
      disability is reasonably related to the individual's
      ability   to   adequately  undertake   the  job-related
      responsibilities of that individual's employment,
      membership or licensure.


                                        31
                                                                           No.     2016AP355



employer engaged in intentional discrimination pursuant to Wis.

Stat. § 111.322.             See Target Stores, 217 Wis. 2d 1 at 9-10.                     At

that   stage        of    the   analysis,      the    employer    has   the      burden   of

proving      it     satisfied       the    terms      of    § 111.34(2)(a).         Target

Stores, 217 Wis. 2d 1 at 9-10.                      LIRC said Wisconsin Bell could

not have had a good-faith belief in its need to terminate Mr.

Carlson's employment under this provision because the evidence

available to it demonstrated his disability caused his conduct:

"[I]t was not an act of good faith for [Wisconsin Bell] to

proceed      with        termination      on   the   assumption     that     Carlson      was

lying about his ability to work on April 20th, in the face of

the information that                Carlson had presented to them from his

doctor and therapist about his bipolar disorder as a cause for

his conduct."            Even if LIRC had included this in the "intent to

discriminate" part of its analysis, it would not change our

conclusion.          The information provided by Mr. Carlson's doctor

and therapist did not mention "his bipolar disorder as a cause

for his conduct."               It said nothing about his conduct at all,
much less provide a link between it and his disability.

       ¶53    Wisconsin         Bell      terminated       Mr.   Carlson's     employment

because he violated the "last chance agreement" when he used the

health code to avoid taking customer calls, engaged in personal

conversations with his co-workers on the Q-Chat system, and left

work before he finished his shift.                          There is no substantial

evidence that Wisconsin Bell knew that Mr. Carlson's disability

caused       this        conduct.      Therefore,          Wisconsin    Bell      did     not


                                               32
                                                                       No.    2016AP355



discriminate against Mr. Carlson "because of" his disability in

violation of Wis. Stat. § 111.322.            The case must be dismissed.22

                               IV.     CONCLUSION

      ¶54     We hold that LIRC may not conclude that a violation of

Wis. Stat. § 111.322(1) occurred by using the inference method

of proving intentional discrimination unless the employee proves

the employer knew his disability caused the conduct on which the

employer based an adverse employment decision.                   And the employer

must have had this knowledge at the time it made the decision.

Because     the   record   lacks     substantial    evidence      that       Wisconsin

Bell knew Mr. Carlson's disability caused his conduct on April

20,   2011,    we   reverse    the    court   of   appeals   and       dismiss     Mr.

Carlson's complaint.

      By    the   Court.—The    decision      of   the   court    of     appeals    is

reversed and the case is dismissed.




      22
       We need not reach the parties' discussion of whether
Wisconsin Bell failed to reasonably accommodate Mr. Carlson's
disability under Wis. Stat. § 111.34(1)(b). That issue does not
arise until the employee establishes his employer intentionally
discriminated against him because of his disability in violation
of § 111.322.   Mr. Carlson has not made that showing, and so
this issue is moot. See Target Stores, 217 Wis. 2d at 9-10; see
also Hutchinson Tech, Inc. v. LIRC, 2004 WI 90, ¶32, 273
Wis. 2d 394, 682 N.W.2d 343; Crivello, ERD Case No. 9252123
(LIRC Aug. 14, 1996) ("Obviously, an employer is not required to
raise the issue of accommodation if the employer is unaware of
an employe[e]'s handicap . . . .").


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      ¶55     ANN WALSH BRADLEY, J.              (dissenting).          The majority

upholds      Charles   Carlson's       termination,      concluding      the   record

lacks substantial evidence that the termination was "because of"

Carlson's disability.         In doing so, it removes the teeth from

the Wisconsin Fair Employment Act's protections and creates an

unworkable      standard.         By   tossing    out     the    long    established

inference method of proof in employment discrimination cases,

the majority places an untenable burden on all employees with

disabilities,       and   those    with       mental    health    disabilities       in

particular.

      ¶56     Thus, the majority becomes the only entity reviewing

this matter that discards the inference method and concludes

that the termination is lawful.                It alone declines to heed the

warning that "if the law fails to protect the manifestations of

[a] disability, there is no real protection in the law because

it would protect the disabled in name only."                     Gambini v. Total

Renal Care, Inc., 486 F.3d 1087, 1095 (9th Cir. 2007).
      ¶57     I would heed that warning.               Because I agree with the

administrative law judge who upheld the use of the inference

method and determined that Carlson was wrongfully terminated;

and with a unanimous LIRC that applied the inference method,

determining that Wisconsin Bell wrongfully terminated Carlson;

and   with    the   circuit   court      that    concluded       that    use   of   the

inference method was reasonable; and with the unanimous court of

appeals that embraced the long standing use of the inference



                                          1
                                                                  No.   2016AP355.awb


method    and   agreed    with    LIRC       that     Carlson     was    wrongfully

terminated, I respectfully dissent.

                                         I

    ¶58    Prior to his termination, Carlson worked for Wisconsin

Bell for approximately 25 years.             Majority op., ¶7.          During this

time, Carlson made his employer aware of his bipolar disorder,

providing letters from his doctors.            Id., ¶11.

    ¶59    The letters identified Carlson's diagnosis as "bipolar

disorder-depressed       type."     Id.         They       also   indicated     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 "[e]xtremes of moods can occur rather quickly and [are]

often triggered by relatively minor frustrations."                  Id.

    ¶60    At the time of the events giving rise to his claim,

Carlson worked in a Wisconsin Bell call center as a Technical

Service   Representative.         Wisconsin         Bell   terminated     Carlson's

employment after Carlson entered a call-blocking health code1
subsequent to learning that he had not passed a test required

for a position in another department.                 Id., ¶¶15-20.        While he




    1
       As the majority opinion explains, Technical Service
Representatives   generally   receive   calls  based   on  their
availability.   Majority op., ¶8.     They can, however, control
receipt of calls by making themselves unavailable by entering
certain call-blocking codes, such as for meal and rest breaks,
short health breaks, and training and staff meetings.        Id.
Improper use of call blocking codes to avoid taking calls could
result in immediate termination. Id.


                                         2
                                                                No.    2016AP355.awb


was in the health code status, Carlson "Q-chatted"2 with co-

workers.      Id., ¶¶15-16.       Carlson asserted that he entered the

health code because he was upset after learning of his test

result     and   that   he    reached   out   to   co-workers       as   a   coping

mechanism.       Id., ¶19.

       ¶61   Carlson brought an employment discrimination claim on

the basis of disability.         An administrative law judge reinstated

Carlson and LIRC upheld that decision.              Id., ¶24.         In doing so,

LIRC       applied      the    "inference      method"         of      determining

discriminatory intent.         Pursuant to this method, "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."             Id., ¶25.

       ¶62   The majority concludes that LIRC's "inference method"

is inconsistent with Wis. Stat. § 111.322(1)3 because it excuses

the employee from the burden of proving discriminatory intent.

Majority op., ¶3.         It further determines that the record lacks
substantial evidence that Wisconsin Bell terminated Carlson's

employment because of his bipolar disorder.              Id.




       2
       "Q-chat" is an internal instant messaging program used by
Wisconsin Bell.
       3
       Wis. Stat. § 111.322(1) provides in relevant part: "[I]t
is an act of employment discrimination to . . . terminate from
employment . . . any   individual . . . because  of   any basis
enumerated in s. 111.321."       Among the bases enumerated in
§ 111.321 is "disability."


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                                                                        No.    2016AP355.awb


                                         II

      ¶63    The majority removes the teeth from the Wisconsin Fair

Employment       Act's    protections.         To    succeed       on   his    disability

discrimination claim, Carlson must demonstrate that he has a

disability,       that     he   received       an     adverse        action     from    his

employer,    and      that    the   adverse    action        was     "because     of"   his

disability.       Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, ¶9,

240   Wis. 2d 209,        621   N.W.2d 633;         Target    Stores     v.     LIRC,   217

Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998).                        Additionally, the

employer must have acted with discriminatory intent.                                Racine

Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707

(Ct. App. 1991).

      ¶64    LIRC's          inference         method           of           demonstrating

discriminatory intent is based on the premise that the symptoms

of a disability are inseparable from the disability itself.                              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 the disability.
      ¶65    This premise is reasonable and correct.                            As amicus

Disability       Rights      Wisconsin   and        the   Survival        Coalition      of

Wisconsin persuasively explain by way of analogy, "[e]pilepsy

and seizure go hand-in-hand."                  If an employer terminates an

employee with epilepsy for having a seizure, that employee is in

effect being terminated "because of" having epilepsy.                             Likewise

here, 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

                                           4
                                                                    No.    2016AP355.awb


disorder.          The   termination      was       "because     of"      his    bipolar

disorder.4

      ¶66    Contrary to the majority's assertion, the inference

method does not relieve the employee of the burden to prove

intent.      Rather, it reasonably equates discrimination against

the   symptoms      of   a   disability       with    discrimination        against   a

person who has a disability.              See Gambini, 486 F.3d at 1093.

The   employee      still     must   show       a    causal      link     between    the

manifested symptoms and the adverse action.

      ¶67    The    inference    method       is     not   overly   restrictive       on

employers.     An employer can still terminate the employee if he

"cannot           'adequately          undertake              the          job-related

responsibilities.'"          Target Stores, 217 Wis. 2d at 10 (quoting

Wis. Stat. § 111.34(2)(a)).            The majority, however, errs in the

other direction.         Its restriction on the use of the inference

method    gives     an   employer    carte     blanche      to   fire     an    employee

      4
       LIRC's finding of fact number 24 aptly describes this
causal link:

      Carlson's mood and his inability to work on April 20,
      2011 upon learning that he failed the collections test
      were caused by his bipolar disorder.    The Q-chats he
      engaged in were reflective of his mood disorder, and
      were    consistent    with    his    psychotherapist's
      recommendation that he reach out to others for support
      as a means of coping with his mood. The fact that he
      used slang, including some humor, and checked on the
      consequences of his taking a medical leave, were not
      inconsistent with the conclusion that his mood and
      inability to work were a manifestation of his mental
      illness. He was unable to work because of symptoms of
      his mental illness, and appropriately used the health
      code and sick leave just as it was available to any
      sick employee.


                                          5
                                                                       No.    2016AP355.awb


because of a symptom of a disability, as long as the employer

does not overtly state that the disability is the reason for the

dismissal.

       ¶68    Gambini forewarned:            "[I]f the law fails to protect

the     manifestations           of   [a]   disability,       there       is    no     real

protection in the law because it would protect the disabled in

name only."          486 F.3d at 1095.             Similarly, over four decades

ago, the United States Supreme Court cautioned that disability

discrimination laws are necessary not only to protect against

prejudice, but to combat "the fact that the American people are

simply    unfamiliar           with   and   insensitive      to    the       difficulties

confront[ing] people with [disabilities]."                    School Bd. of Nassau

Cty.,    Fla.       v.    Arline,     480   U.S.    273,    279    (1987)       (citation

omitted).

       ¶69    The Wisconsin Fair Employment Act is to be "broadly

interpreted to resolve the problem it was designed to address."

Crystal      Lake    Cheese       Factory   v.   LIRC,     2003   WI   106,     ¶46,    264

Wis. 2d 200,         664       N.W.2d 651   (quoting       McMullen      v.    LIRC,    148
Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1988)).                            The purpose

of the law is "to encourage and foster to the fullest extent

practicable the employment of all properly qualified individuals

regardless      of       any    [disabilities]."         McMullen,     148     Wis. 2d at

275.     The majority's restrictive interpretation undermines this

purpose and provides no protections at all to employees with

disabilities.




                                             6
                                                                                 No.    2016AP355.awb


                                                  III

       ¶70        Further, the majority's approach is unworkable.                                    By

decoupling the disability from its symptoms and requiring an

employer's          knowledge          of    a   disability         prior    to        the     adverse

action, the majority places an impossible burden on an employee

with a disability.                 This burden falls particularly heavily on

those    with           mental    health         conditions         that     are        not     always

immediately apparent to a layperson or employer.

       ¶71        The majority states that "[e]xcusing the employee from

proving the employer's knowledge of the causal connection allows

LIRC to find intentional discrimination where there is no proof

of    it."         Majority       op.,       ¶40.       Yet    it    concedes          that     "[t]he

consequences of bipolarism are not matters of common knowledge."

Id., ¶46.              It then concludes that "[b]ecause of the amorphous

nature       of    this     disability,           an    employee's         bare    assertion         of

causality cannot be credited as authoritative."                                   Id.     Thus, the

majority          examines       what       Wisconsin     Bell      knew     at    the        time   it

terminated Carlson's employment.                        Id., ¶47.
       ¶72        So    what     did    Wisconsin        Bell       know    at     the        time   it

terminated          Carlson's          employment?            As    the    majority           details,

Wisconsin Bell knew a full year before the incident that led to

his    dismissal          that    Carlson         had    bipolar      disorder          that    could

manifest in significant depression.                            Id., ¶11.           It knew that

bipolar disorder may include "[e]xtremes of moods" that "can

occur rather quickly and [are] often triggered by relatively

minor frustrations."                   Id.       It knew that Carlson was receiving
psychotherapy.            Id.

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                                                                              No.   2016AP355.awb


       ¶73   Yet      despite       the    fact       that   these       letters      precisely

describe     the        actions       that        ultimately           led     to      Carlson's

termination, the majority discounts the letters because they do

not    mention       any   "causal        nexus"      between     bipolar       disorder       and

Carlson's conduct.             See id., ¶¶46-47.                  With Wisconsin Bell's

knowledge    of       Carlson's      condition         and   its       manifestations,         one

wonders what kind of nexus would satisfy the majority.

       ¶74   The      majority's          requirement        that      the     employer     have

knowledge       of     the    disability           prior     to       the     adverse     action

encourages rash and uninformed decision-making on the part of

employers.           Under    the    majority's         approach,        an    employee     must

provide immediate medical proof that an action was caused by a

disability or face termination.                        This is a nearly impossible

hurdle.

       ¶75   What are Carlson and others similarly situated to do?

Should    they       notify     their      employers         of    their       mental     health

conditions and all of their possible manifestations immediately

upon    being     hired      in     order     to       protect        their    employment       if
symptoms manifest themselves at a later date?                                 But it is often

impossible       to    predict       in    advance       all      of    the     ways    that    a

disability may manifest itself in a workplace.                               Symptoms as well

as work environments may change and disabilities may progress

and regress.          This burden falls particularly severely on those

with mental health disabilities, which are less apparent to the

layperson.

       ¶76   If      employees       do     not       present     a    sufficient       medical
report prior to an adverse action, how are they going to meet

                                                  8
                                                                   No.   2016AP355.awb


the    majority's      apparent     requirement     that      medical         proof     be

immediately available in order to thwart termination?                              Such a

requirement seems divorced from the reality of medical treatment

and workplace relations.

       ¶77   Often    a   medical   professional       will      want    to    have    an

appointment with the employee to discuss what happened before

issuing a report on causation.                Scheduling medical appointments

and    receiving      subsequent    reports      opining     on    causation          will

likely take weeks, if not longer, to accomplish.

       ¶78   Further, the specter of providing a disclosure of all

possible manifestations, even if they may never happen, puts an

employee in a very difficult position.               It forces an employee to

disclose     a     mental    health       disability       and     its        potential

manifestations just in case.              Aside from being an unnecessary

invasion of privacy and potentially embarrassing, it also may

discourage people with disabilities from applying for employment

in the first place.         Far from advancing the purpose of the WFEA,

the majority's unworkable approach runs completely counter to
its objectives.

       ¶79   On the other hand, application of the inference method

of    determining     discriminatory      intent    avoids    placing         an    undue

burden on people with disabilities.                Further, it gives meaning

to the protections of the Wisconsin Fair Employment Act and

avoids rendering those protections merely illusory.

       ¶80   For the foregoing reasons, I respectfully dissent.

       ¶81   I   am   authorized     to   state    that    Justice       SHIRLEY       S.
ABRAHAMSON joins this dissent.

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    No.   2016AP355.awb




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