STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JEFFREY LEE WILLIS, Complainant

STOUGHTON TRAILERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200402036, EEOC Case No. 26G200401319C


An administrative law judge (ALJ) for the Equal Rights Division (ERD) of the Department of Workforce Development issued a decision in this matter (see attached). A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT

The commission adopts the ALJ's findings of fact (see attached decision), with the following modifications made to more accurately reflect the evidence of record and to remove those findings more aptly characterized as conclusions of law:

I. The word "extensive" in Finding of Fact 5. (numbered paragraph 5. on page 2 of the ALJ's decision) is deleted.

II. The following sentences are added to Finding of Fact 10 (numbered paragraph 10 on page 4 of the ALJ's decision)

Stormer determined that Willis's training and experience qualified him to perform the duties of the assembler position, and Schieldt relied on Stormer to make this determination. Stormer did not participate in determining whether Willis could perform these duties safely and productively.

III. The eighth sentence of Finding of Fact 16. (numbered paragraph 16. on page 6 of the ALJ's decision) is modified to read as follows:

Willis and his brother stated to them that Willis had experience working in that kind of environment and an excellent safety record.

IV. The words "in violation of the Wisconsin Fair Employment Act" are deleted from Finding of Fact 30. (numbered paragraph 30. on page 9 of the ALJ's decision).

V. That part of Finding of Fact 31. (numbered paragraph 31. beginning on page 9 of the ALJ's decision) beginning with the second sentence is deleted.

VI. Findings of Fact 32. and 33. (numbered paragraphs 32. and 33. on page 10 of the ALJ's decision) are deleted.

CONCLUSIONS OF LAW

1. Respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Complainant is an individual with a disability within the meaning of the Wisconsin Fair Employment Act.

3. Complainant failed to sustain his burden to prove that the respondent violated the Wisconsin Fair Employment Act by discriminating against him on the basis of disability.

ORDER

The ALJ's decision is reversed. This complaint is dismissed.

Dated and mailed September 4, 2009
willije . rrr : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION


Transcript

After the hearing, counsel for the respondent arranged for the preparation of an unofficial transcript. ERD did not prepare a summary of proceedings after the ALJ's decision was appealed, but instead provided this unofficial transcript to the commission.

In his brief to the commission, counsel for the complainant indicated in footnote #1 that parts of the hearing testimony were not included in this unofficial transcript. As a result, the commission reviewed the tape recording of the hearing, and, not only were large parts of the hearing testimony missing from the unofficial transcript, but much of what had not been transcribed was testimony that was unintelligible.

Consequently, the commission contacted the ALJ who had conducted the hearing, who agreed, on or around February 11, 2009, to use her notes to fill in the gaps in the hearing testimony. The parties agreed to this approach with the understanding that they would have an opportunity to review the revised transcript prepared by the ALJ before it could be used for purposes of the commission's review.

The ALJ prepared a revised transcript from her hearing notes, and this was provided to the parties on April 3, 2009. Both parties agreed to have it regarded as the official transcript of the proceedings for purposes of the commission's review and any subsequent appeals.  
 

Disability discrimination

Briefly, the complainant suffers from profound deafness, which means that he has no ability to hear sounds. He is trained as an engine mechanic. His work experience includes one year (1989-1990) as an aircraft maintenance worker, driving a fuel truck and fueling airplanes; one year (1991-1992) repairing machines producing eye protection for military personnel; two years (1994-1996) as an automotive mechanic for Sears; one year (1999-2000) repairing airplane engines in a shop environment; and four years (2000-2004) as a clerk/mail handler for the postal service. Although each of these jobs involved working around machinery or moving vehicles or both, none were complex manufacturing environments similar to Plant 6 at Stoughton Trailers.

In April 2004, the complainant applied for a Plant 6 Assembler B position with respondent.

The Worker's in Plant 6 assemble truck trailers. Plant 6 is a complex manufacturing matrix, constantly in flux, with numerous significant safety hazards. Oral communication and warning sounds are an integral part of the Plant 6 environment. Even though the environment is noisy and Worker's wear hearing protection, communication is still successfully effected through speech and other sounds. Changing specifications and production needs require rotation of assemblers among the seven stations on each line, and among the four lines.

Respondent interviewed the complainant, and took him on two tours of Plant 6, the first while it was not in operation and the second while it was. The complainant used his sister-in-law as an interpreter for the first interview/tour, and his brother Basil for the second. The second tour was conducted by Robert Brown (Brown), respondent's Safety and Worker's Compensation Manager; and Kathryn Schieldt (Schieldt), respondent's Human Resources Director, who effectively made the subject hiring decision.

The purpose of the second interview/tour was to provide the complainant an opportunity to propose accommodations he believed would enable him to safely and effectively perform the duties of the assembler position. The respondent considered the accommodations proposed by the complainant, and other possible accommodations, but concluded that, given the number and complexity of the safety hazards and communication demands of the position and its environment, there was no accommodation or combination of accommodations which would enable the complainant to safely and effectively perform the duties of the assembler position. As a result, the respondent provided notice to the complainant that he was not a successful candidate for the assembler position.

The parties have stipulated that the complainant qualifies as an individual with a disability within the meaning of Wis. Stat. § 111.32(8). In addition, the respondent concedes that the complainant's hearing impairment was the reason he was not hired for the assembler position.

The focus then shifts to Wis. Stat. § 111.34(1), which provides as follows, as relevant here:

(1) Employment discrimination because of disability includes, but is not limited to:

...(b) Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.

There are two separate steps to the "reasonable accommodation" analysis: (1) to determine whether the accommodation is a reasonable one, i.e., whether it effectively enables the disabled individual to perform the job-related responsibilities of his employment; and (2) to determine whether it imposes a hardship on the employer. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998).

The complainant has the initial burden to prove that a reasonable accommodation is available. Hutchinson Technology, Inc. v. LIRC et al., 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343 (2004). See, also, Gamroth v. Dept. of Corrections, ERD Case Nos. CR200303157, etc. (LIRC Oct. 20, 2006); Rauls-Hepp v. J. L. French Corp., ERD Case No. 200204080 (LIRC Sept. 30, 2005).
The complainant failed to prove that a reasonable accommodation was available. The testimony of the complainant's vocational expert (Schutz) is very telling in this regard:

(Attorney Bruchs) Isn't it true, Mr. Schutz, that you can't state which of these possible accommodations that you've identified for us today would work for Mr. Willis, to make him as productive and as safe as other people who work at Stoughton Trailers?

(Schutz) Without the opportunity to get in the plant, I couldn't specifically state other than saying that it is my opinion that a combination of them and perhaps one by itself. I can't tell you which one that is...Well, it is probable to me that a combination of them would work. I can't tell you which ones would.

(Attorney Bruchs) ...And you can't tell us which ones would not?

(Schutz) That's probably the best way to answer it. I can't tell you which ones would not...

(Attorney Bruchs) Did you ever ask [complainant's attorney] if you could tour the facility?

(Schutz)...I understood that that wasn't part of what I was going to have a chance to do.

(Attorney Bruchs) That would be an important step in assessing whether some of these suggested accommodations would actually work, wouldn't it?

(Schutz) I think that is the most important part of this whole thing...

(Attorney Bruchs) ...You didn't have a chance to do that?

(Schutz) I didn't.

(Revised transcript, volume I, pages 103-105).

Not only did the complainant's expert fail to offer an accommodation or combination of accommodations which would have enabled the complainant to perform the duties and responsibilities of the assembler position, but the evidence of record does not establish the existence of an effective accommodation(s).

The complainant proposed the following accommodations to the respondent. The respondent considered each of these proposed accommodations but rejected them as ineffective.

The complainant also argues that the respondent should have considered other possible accommodations even though they were not proposed by the complainant during the hiring process.

The complainant cites no authority for requiring the respondent, other than in regard to obvious accommodations, to have considered the universe of possible accommodations as part of the hiring process, particularly where, as here, the complainant described to Schieldt and Brown his years of prior work experience and the manner in which, based on this experience, he believed he could be accommodated at Plant 6. See, Rauls-Hepp, supra. (employer not required to consider accommodations not requested or obvious).

The complainant appears to imply in his argument that these other possible accommodations would have been raised had the respondent engaged in the required interactive process with complainant. However, to the extent that the WFEA requires an interactive process, such a process occurred here. See, Gamroth, supra. The respondent met with the employee twice, both times giving him an opportunity to tour Plant 6 and suggest possible accommodations, and then considered the accommodations suggested by the complainant. Simply because the respondent did not adopt these accommodations does not mean that a sufficient interactive process did not occur. The complainant also argues that the respondent was required to conduct further research on the accommodation of deaf Worker's, to have hired a vocational expert, or to have contacted the Job Accommodation Network, as part of its duty to engage in the interactive process. Again, the complainant cites no authority for requiring an employer to interact with anyone other than the applicant/employee. See, Gamroth, supra. Moreover, even if this had been a requirement, the respondent's failure in this regard would be fatal to its case only if the record establishes that doing the research or contacting a vocational expert or the Job Accommodation Network would have resulted in the identification of an effective accommodation. The record does not establish this. See, Gamroth, supra.

Moreover, even if the respondent had been required to consider the other possible accommodations now raised by the complainant and set forth below, the complainant did not prove that any of them, alone or in combination with other possible accommodations, would enable the complainant to safely and effectively perform the duties of the assembler position.

The record shows that each of the accommodations proposed by the complainant has significant limitations. Any doubts as to the workability of these accommodations is required to be resolved against the complainant. See, Rauls-Hepp, supra.; Gamroth, supra. The record does not establish that any of these accommodations, either alone in combination with others, could effectively enable the complainant to work as an assembler in Plant 6.

Finally, the complainant asserts that, given the evidence of record, it would have been a reasonable accommodation for the respondent to have modified the assigned duties of the assembler position. The commission disagrees. The record shows that certain of the seven work stations among which an assembler rotates are less hazardous than others, but does not establish those which the complainant could safely and effectively perform with or without other accommodations. The complainant's expert testified that he had not reached a conclusion as to which duties could have been modified to enable the complainant to perform the job of an assembler in Plant 6. The most that the record establishes is that the complainant may have been able to safely and effectively perform part of the work in a single station, where he would not be required to communicate frequently and spontaneously with other Worker's, or to rotate through those areas of the plant where there is constant movement of parts and equipment. However, in order to reasonably accommodate the disability of the complainant, a new hire, the respondent was not required to modify the assembler position to such an extent, effectively creating a new position. See, Rauls-Hepp, supra.; Kinion v. Portage Community Schools, ERD Case No. CR200003066 (LIRC Sept. 19, 2003); Schmidt v. Lunda Construction, ERD Case No. 200602537 (LIRC Dec. 26, 2008)(employer not required to offer disabled applicant different job than the one for which it advertised). Moreover, the record shows that there was no part of a single station where the complainant could be busy on a full-time basis. (revised transcript, volume 2, page 88). The complainant argues that respondent has assigned other Worker's to light duty or to limited duty and so could have done so for the complainant. However, the injured employees for which the respondent provided such work were not similarly situated to the complainant, and the respondent is not required to offer this as an accommodation for the complainant. See, Rauls-Hepp, supra. (employer not required to create job for disabled applicant, and fact it has done so for people injured on the job does not alter this).

The complainant also argues that the respondent failed to reasonably accommodate him because it did not evaluate him as an individual within the meaning of Wis. Stat. § 111.34(2)(b), which states as follows:

(b) In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual, of the individual's coWorker's and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.

The record does not show that the respondent decided not to hire the complainant because it had a general rule not to hire disabled individuals or deaf individuals.

The respondent met twice with the complainant; took the complainant on two tours of Plant 6; considered the possible accommodations proposed by the complainant based on his prior life and work experiences, including his work around forklifts (revised transcript, volume 1, page 60); and brainstormed as to other possible accommodations (revised transcript, volume 1, page 36). This would certainly constitute evaluation on an individual basis.

The complainant argues that respondent's failure to take into account the complainant's successful work history establishes that an individual evaluation did not occur. However, as discussed above, the respondent did take certain relevant aspects of the complainant's prior work history into account. Moreover, the record does not show that the other environments in which the employee had worked were closely comparable to Plant 6., i.e., they were not complex manufacturing environments implicating comparable safety hazards or communication requirements. As a result, the complainant's experience in these environments would have had limited relevance to the assembler position in Plant 6.

The complainant asserts in proffering this argument that respondent did not consider Willis' past work experience prior to deciding that Stoughton Trailers could not provide him with any reasonable accommodations. However, as the record reflects and as the ALJ found (1),   Schieldt asked the complainant during the second meeting/interview "how he had managed the airplane maintenance work given his hearing impairment." The record shows that Schieldt and Brown considered the accommodations proposed by the complainant, many of which, as he explained, were based upon his experience in prior positions. Again, simply because the respondent did not adopt the complainant's proposals as to possible accommodations, drawn from his past work experience or otherwise, does not mean that that it did not consider these proposals or the experiences from which they were drawn as part of the hiring process.

The commission notes that, since it did not overturn any of the ALJ's material findings but instead reversed her decision as a matter of law, it did not consult with the ALJ before reversing her decision.

 


ROBERT GLASER, Commissioner, (dissenting):

I respectfully dissent from the majority decision. In my opinion, the complainant sustained his burden to prove that he could perform the duties of the assembler position in Plant 6 as safely and productively, after appropriate training, as hearing Worker's.

The primary safety hazards related to moving cranes and forklifts. The cranes had lights to alert employees when they were moving. The forklifts had lights. Mirrors were placed at strategic locations, and forklifts were required to stop at all intersections. The cranes and forklifts also had alarms, but, given the noise level in the plant, it is not clear that these alarms would have provided an advantage to hearing employees over the complainant.

The complainant had worked in prior jobs in which safety hazards and moving equipment were present. The record shows that he had experienced no problems safely performing these jobs. He testified that he had a good driving record which supports his argument that his other senses have become more acute because of his hearing disability.

I agree with the ALJ that the complainant sustained his burden to prove that he had been discriminated against based on his disability when he was not hired by the respondent for the position of assembler in Plant 6.

/s/ Robert Glaser, Commissioner

 

cc:
Attorney Paul A. Kinne
Attorney Laura A. Lindner


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Footnotes:

(1)( Back ) See ALJ's Findings of Fact #16.

 


uploaded 2009/09/08