P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

WESLEY E SMITH, Complainant


ERD Case No. CR200800434, EEOC Case No. 26G200800605C

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 modifications:

1. In paragraph 4 of the administrative law judge's ORDER the date "March 2, 2007" is deleted and the date "March 2, 2009" is substituted therefor.

2. The following paragraph is inserted after paragraph 5 of the administrative law judge's ORDER:

"The respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $10,174.50. A check in that amount shall be made payable jointly to the complainant and Attorney Alan C. Olson and delivered to Attorney Olson."

3. Paragraph 6 of the administrative law judge is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's Order. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

4. The administrative law judge's ORDER is renumbered accordingly.


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

Dated and mailed April 19, 2012
smithwe . rmd : 164 : 5 


/s/ Robert Glaser, Chairperson

/s/ Laurie R. McCallum, Commissioner


Did the respondent refuse to provide a reasonable accommodation for the complainant's disability?

On two separate occasions, while the complainant was off work on a medical leave of absence due to his ulcerative colitis, (1) the complainant asked his supervisor, David Klemish, whether there were other jobs available for him besides his usual outside work. Although the respondent's policy was that accommodations were granted by its Integrated Disability Service Center (hereinafter "IDSC"), the complainant had previously gone to Mr. Klemish for an accommodation for a shoulder injury. While the complainant did not tell Mr. Klemish about his colitis, he explained that he had a chronic health condition apart from the shoulder injury the respondent was already aware of. During both conversations Mr. Klemish told the complainant there were no other jobs available. Mr. Klemish also informed the complainant that he could not return to work until he was 100%. Although Mr. Klemish testified that he could have accommodated the complainant if the IDSC had directed him to do so, he did not inform the IDSC that the complainant had inquired about accommodations.

On January 26, 2007, about a week into his leave of absence, the complainant received a letter from the IDSC indicating that it had been notified of his absence and that a disability claim had been initiated. The complainant was advised that he needed to sign a release so that the IDSC could obtain his medical records. The complainant provided the release as requested. Although the IDSC administers the respondent's accommodations program, nobody from the IDSC ever contacted the complainant to discuss potential accommodations, nor did the January 26 letter direct the complainant to notify the IDSC if he needed an accommodation.

The commission has held that an employer has some obligation to engage in an "interactive process" aimed at determining the precise job-related limitations imposed by a disability and how those limitations could be overcome with a reasonable accommodation. See, Castro v. County of Milwaukee Sheriff's Department, ERD Case No. CR200800720 (LIRC Dec. 20, 2011). While the failure to engage in an interactive process does not, on its own, constitute a violation of the law, the question is whether the complainant has shown that, if the respondent had engaged in the process, together they could have identified a reasonable accommodation. Gamroth v. Wisconsin Department of Corrections, ERD Case Nos. CR200303157, CR200303158, and CR200303159 (LIRC Oct. 20, 2006).

In this case, the commission believes that the respondent failed in its duty to engage in an interactive process that would have resulted in its providing a reasonable accommodation. While Mr. Klemish may not have had the authority to unilaterally offer the complainant an accommodation, upon learning that the complainant had a medical need for a different job assignment, he could and should have brought the matter to the attention of the IDSC. Not only did Mr. Klemish fail to do so, but his repeated, unequivocal statements to the complainant that there was no other work available and that he could not return to work until he was at 100%, led the complainant to believe that there was no point in requesting an accommodation from the IDSC. Moreover, it appears that the IDSC, which had the responsibility for providing accommodations, made no effort to contact the complainant's doctor to find out whether any accommodations might be possible, in spite of the fact that the complainant had provided a release permitting it to obtain medical information, and failed to ask the complainant whether he required accommodations. The fact that no one from the IDSC ever communicated with the complainant about accommodations was consistent with the complainant's understanding that no inside work was available; the complainant had reason to believe that the IDSC understood what was needed and would have offered him an accommodation if it was willing and able to do so.

In its brief to the commission the respondent argues that the complainant received an accommodation in that he requested and was granted an FMLA leave of absence. The respondent maintains that it had no obligation to explore other accommodations once it granted the leave of absence. It also contends that an employer is not required to provide an employee with the accommodation of his choice, provided the accommodation it provides eliminates the conflict between the complainant's disability and the job duties and preserves the employment status. The respondent's arguments fail. The complainant requested both a leave of absence and a different job assignment. While it is true that an employee cannot necessarily expect to receive the accommodation he or she most prefers, an accommodation that enables an employee to continue working goes further towards eliminating the conflict between the complainant's disability and the job than does a leave of absence. Had the complainant been offered an indoor job, he would have been able to terminate the leave of absence and return to work. Moreover, even assuming that an FMLA leave could be considered an equally reasonable and effective accommodation, the facts that the respondent retroactively denied the complainant the FMLA leave it had previously granted and then discharged him for taking the leave of absence argue against a finding that the respondent reasonably accommodated the complainant's disability by providing him with a leave of absence.

Under all the facts and circumstances, the commission agrees with the administrative law judge that the respondent failed in its obligation to provide a reasonable accommodation for the complainant's disability, and that its actions were in violation of the Wisconsin Fair Employment Act. 

Was the complainant discharged because of his disability?

On July 24, 2007, the complainant was suspended pending termination because the respondent believed he engaged in fraud by working at a trade show while out on an FMLA leave of absence and violated its conflict of interest policy by engaging in other employment when he could have been working for the respondent. After the discharge recommendation was made, but prior to discharging the complainant, the respondent learned of additional facts about the complainant's disability that explained why the complainant was medically able to work in his own business while not being able to perform his usual job for the respondent. The respondent discharged the complainant nonetheless. The commission agrees with the administrative law judge that the respondent's decision to proceed with the discharge of the complainant under these circumstances was in violation of the statute.

In its petition the respondent points out that the commission has issued decisions holding that, even if the complainant did not engage in the conduct the respondent alleged (in this case, fraud and conflict of interest), the respondent can escape liability if it demonstrates that it discharged the complainant because it genuinely and in good faith believed he engaged in that conduct. However, the commission has also held that "good faith" contemplates a situation in which an employer reasonably relies upon information that turns out to be incorrect, and that its reasons for acting should go beyond its own prejudices and assumptions. Davis v. City of Milwaukee Police Department, ERD Case No. CR200703169 (LIRC Aug. 26, 2011). In the instant case, the respondent relied upon the personal observations of Mr. Sanfilippo, who concluded that the complainant could have worked for the respondent while on FMLA leave. It is questionable whether it was ever reasonable for the respondent to rely on Mr. Sanfilippo's personal observations, unsupported by any medical evidence, as a basis to recommend discharging the complainant. However, once the respondent learned that it was operating under incorrect assumptions about the complainant's medical condition and its effect on his ability to work, the respondent's decision to proceed with the discharge no longer enjoyed a presumption of "good faith." The respondent knew the complainant had a disability and that the disability prevented him from performing his regular job assignment. Its actions in discharging the complainant for taking a leave of absence, rather than more vigorously pursuing a different accommodation, amounted to a discharge that was because of his disability and that was, therefore, unlawful. 

Back Pay 

The administrative law judge ordered the respondent to make the complainant whole for lost wages by paying him what he would have earned from October of 2007 through February of 2008, and from August of 2008 until March 2, 2009, at which point the complainant was reinstated pursuant to an arbitrator's award. The administrative law judge found that the complainant was not eligible for back pay during his other periods of unemployment, from July 24, 2007, until the beginning of October of 2007, and between February and August of 2008, because he failed to mitigate his damages during those time periods. In his petition for commission review, the complainant requests reversal of the portion of the administrative law judge's decision finding that he was not eligible for back pay during the time periods at issue.

During the entire course of his employment with the respondent, and extending through his period of unemployment, the complainant maintained his own vacuum cleaner business, from which he paid himself approximately $2000 a month. At the hearing the complainant admitted that he did not seek other employment between his suspension, beginning on July 24, 2007, and until October of 2007, because he was working at his own business and further, because he was expecting to be reemployed by the respondent. The complainant did engage in a job search, in order to qualify for unemployment benefits, from October of 2007 through February of 2008, at which point he again removed himself from the labor market to work exclusively for his own company. The complainant recommenced his job search in August of 2008. During those time periods when the complainant was working full time for his own company he continued to pay himself the same $2,000 that he paid himself when working full time for the respondent.

The complainant points out that self-employment can be an acceptable method of mitigating damages, citing Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001). However, while the commission agrees that self-employment can constitute an acceptable method of mitigation, whether it will do so in any given case depends upon the specific facts of that case. In Fields, the complainant took proactive steps subsequent to his discharge to enroll in taxidermy school and to set up his own taxidermy business, which the commission viewed as having been undertaken in a reasonable effort to mitigate his damages. Here, by contrast, the complainant had been working in the same self-employment throughout his employment and had been paying himself the same amount of money as he did after he lost his job with the respondent. The record does not indicate that the complainant's actions were an effort to mitigate his damages; rather, they appear to have been undertaken in a continuation of an existing business effort that preceded the suspension and discharge.

The complainant also argues that it is the respondent's burden to establish both that he failed to make a diligent effort to seek new employment and that there was a reasonable likelihood that the complainant might have found comparable work by exercising reasonable diligence. See, Nunn v. Dollar General, ERD Case No. CR200402731 (LIRC March 14, 2008), and cases cited therein. Although the commission has held that the respondent has the burden of showing that, had the complainant exercised more diligence in seeking new work, there was a reasonable likelihood he would have found comparable employment, the commission has also held that the complainant is not entitled to back pay from the respondent if he has removed himself entirely from the labor market. Robertson v. Family Dollar Stores, Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005). Where, as here, the complainant was not seeking employment, and has made no contention that his failure to do so was because of a lack of job opportunities on the labor market, and where the complainant was not otherwise attempting to mitigate his damages, he is considered to have withdrawn from the labor market and is ineligible for back pay.

A second question presented is whether the $2000 the complainant paid himself from his own business must be deducted from his back pay during those periods of time in which the complainant is eligible to receive back pay. The administrative law judge found that the $2000 does not act to reduce back pay, since it is an amount the complainant earned throughout his employment with the respondent. The respondent argues that this is incorrect, because Wis. Stat. � 111.39(4)(c) provides that it is mandatory to offset back pay by interim earnings. Wis. Stat. � 111.39(4)(c). The respondent's argument fails. The payment the complainant received from his own business does not constitute "interim earnings," within the meaning of the statute. (2)   The amount at issue does not represent temporary wages earned, while the complainant waited to find substitute employment for the job he lost, but constitutes a fixed sum that the complainant drew from his business throughout the course of his employment with the respondent and continuing thereafter. Since "make whole" relief contemplates that the employee be put back in the position he would have been in had the discriminatory discharge not occurred, see, Powell v. SBC Ameritech, ERD Case No. CR200100576 (LIRC April 21, 2003), the complainant is entitled to keep the $2,000 he customarily received while working for the respondent, in addition to any applicable back pay for wages lost.

The respondent also takes issue with the portion of the administrative law judge's Order requiring it to make the complainant whole for all losses that resulted from his having to pay to maintain his health insurance during the period of his unemployment and for all losses that resulted from not receiving pension benefits. In its petition the respondent argues that the complainant failed to introduce any evidence regarding his health care costs or the value of his lost pension, and that the award of health care and pension benefits is therefore inappropriate. However, as stated above, "make whole" relief contemplates putting the complainant in the position he would have been in had the discriminatory discharge never occurred. Had the complainant not been discharged he would have continued to receive health insurance and pension contributions. The complainant does not have the burden to establish the specific cost of his health care or the value of his pension benefits at the hearing. Rather, those are matters for the parties to resolve during the compliance phase of the litigation. 

Attorney fees

The complainant has requested an additional $11,305 in attorney fees for professional services rendered subsequent to the issuance of the administrative law judge's decision. This represents a total of 32.3 hours at an hourly rate of $350.

In its reply brief to the commission the respondent argues that the complainant is premature in requesting the fees referenced above, and contends that it is therefore not necessary for the respondent to respond to that request. The respondent asserts that it "in no way waives its right to oppose the fee petition," should the complainant prevail in this matter. However, the briefing schedule issued by the commission on October 22, 2010, specifically directed the complainant to include any request for additional attorney's fees for work performed in connection with the petition for review in his initial brief, and directed the respondent to include any objections to the complainant's request for additional attorney's fees when it filed its reply brief. The respondent has not explained why it could not have complied with the commission's request, which was designed to avoid further delay in issuance of the decision, and the commission can see no legitimate reason for the respondent's failure to do so. Given this factor, and considering that the question of what constitutes a reasonable hourly rate for the complainant's attorney has already been adjudicated and is not now in dispute, the commission sees no reason to delay this matter further. The commission will therefore resolve the question of how many hours were reasonably expended on this matter by the complainant's attorney without benefit of the respondent's objections.

The complainant's attorney fee statements indicate that complainant's counsel expended a total of 32.3 hours on this matter, approximately 28 of which were spent reviewing the transcript and exhibits, and researching and writing the two briefs. Nothing listed on the complainant's attorney's itemized fee statements appears to be unreasonable or excessive, and the commission can see no compelling reason not to order payment of the amounts requested, with appropriate adjustments to account for the time spent on the complainant's own petition, filed on the issue of whether the complainant mitigated his damages during the time periods when he worked exclusively for his own business, on which he did not prevail. A review of the materials reveals that the complainant's attorney devoted approximately ten percent of his efforts in this matter to arguing that his back pay should not be reduced to reflect a failure to mitigate. (Two pages of the complainant's twenty-page initial brief were devoted to the mitigation issue, while one page of the seven-page reply brief addressed the question of mitigation.) Based on the foregoing, the commission considers it appropriate to reduce the complainant's attorney fee award by ten percent of the amount requested to reflect the fact that, although the complainant prevailed in his opposition to the respondent's petition for review, he was not successful with regard to his own petition. As so reduced, the total attorney fee award for the complainant's attorney's professional services associated with the petition for commission review is $10,174.50.


Attorney Alan Olson
Attorney Laura Lindner

Appealed to Circuit Court.  Affirmed, November 16, 2012.

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(1)( Back ) That this condition constitutes a disability for the complainant is not a matter in dispute.

(2)( Back ) The term "interim" means: "In the meantime; meanwhile; temporary; between." Black's Law Dictionary 730 (5th ed. 1979).


uploaded 2012/06/15