PATRICIA R BOWDISH, Complainant

COPPS/ROUNDYS SUPERMARKETS INC, Respondent

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

The last two sentences on page 5 of the administrative law judge's decision (the section of the MEMORANDUM OPINION entitled "Retaliation"), beginning with the words "Even if," are deleted and the following substituted therefor:

"However, there is simply no evidence to establish a causal connection between the complainant's complaints and the respondent's requirement that she take and pass the ergonomics test or its request for a medical release. The respondent took the action it did because the complainant had presented it with incomplete and conflicting medical evidence, and the respondent was uncertain as to whether she could safely return to work."

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed January 14, 2011
bowdipa2 . rmd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Although the hearing in this matter encompassed three different complaints -- a complaint that the complainant was treated unfavorably based upon her sex when she was disciplined for her involvement in a forklift accident,  a complaint that she was retaliated against for filing a gender discrimination complaint when she was required to take and pass the ergonomics test,  and a complaint that she was retaliated against based upon prior complaints of discrimination and discriminated against based upon her age and disability when the respondent required her to submit a medical release as a condition of returning work -- the sole issue addressed in the petition for review is the respondent's decision to require an ergonomics test, which the complainant contends was in retaliation for her prior complaint. The commission considers it unnecessary to specifically address those issues that are not raised in the complainant's petition for review and will confine this memorandum opinion to the question of whether the respondent retaliated against the complainant based upon her prior complaint when it required her to take and pass both a functional capacity examination and an ergonomics test as a condition of returning to work.

The complainant's argument is that the ergonomics test was not shown to be job related and consistent with business necessity and that the respondent's decision not to allow her to return to work her until she met the arbitrary requirements of the ergonomics test was clearly retaliatory. The complainant contends that she passed the functional capacity examination, and that the respondent "knew or should have known" that the functional capacity test was an accurate measure of her ability to perform the job and that the ergonomics exam was not. The complainant's argument lacks merit. At the hearing the respondent explained that the ergonomics test was designed to measure an employee's endurance and ability to lift repetitively, which was necessary because the warehouse job requires lifting, picking and working strenuously for eight hours. The respondent further explained that the test was designed for it by a third party, Advanced Ergonomics. The complainant's subjective opinion about the validity of the ergonomics test is insufficient to overcome this testimony or to warrant a conclusion that the test was flawed or unnecessary.

Moreover, there is simply no evidence in the record to suggest that the respondent required the ergonomics test in bad faith. In fact, it was not established that the individual or individuals who made the decision to send the complainant for testing were even aware of her prior discrimination complaint. The sole link between the complaint and the alleged adverse action is that they occurred about a month apart. However, while close timing of the two events can establish a causal link, in this case there is overwhelming evidence establishing that the respondent's actions had nothing to do with the complainant's protected activity. The respondent explained that the reason it required the complainant to undergo the two examinations was because she had provided conflicting medical evidence, and it was uncertain whether she could safely return to work. The complainant's job was physically demanding, requiring repetitive lifting, and she had already been injured more than once. Given the lack of clarity in her medical documentation about the complainant's ability to return to work, there is no reason to doubt the respondent's motivation in ordering the two tests, nor its hesitation about returning the complainant to work once she failed to pass one of them. Therefore, even if it could be argued that the ergonomics test was not an accurate measure of the skills needed to perform the job, the commission would see no basis to conclude that the respondent's actions were in retaliation for the complainant's protected activity.

The commission has modified the administrative law judge's memorandum opinion to remove the finding that the requirement the complainant take and pass an ergonomics examination prior to returning to work and provide a medical release did not constitute adverse employment actions. The commission finds it unnecessary to decide this question given the absence of any evidence linking the respondent's requirement that the complainant pass the ergonomics examination or provide a medical release with her prior complaints of discrimination.

cc:
Attorney Patrick T. Arendt
Attorney Laurie A. Peterson

[Ed. Note: This decision was re-issued in the same form on February 10, 2011]

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uploaded 2011/02/14