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

CINDY S SCHULZ, Complainant

WAUSAU SCHOOL DISTRICT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200703495, EEOC Case No. 200800039C


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 first five full paragraphs of the administrative law judge's Memorandum Opinion (on pages 15 and 16 of the decision, ending at the subheading "Disability Discrimination Claims") are deleted.

DECISION

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

Dated and mailed April 30, 2012
schulci .  rmd : 164 : 5 

BY THE COMMISSION:

Robert Glaser, Chairperson

/s/ Ann L.  Crump, Commissioner

/s/ Laurie R.  McCallum, Commissioner

MEMORANDUM OPINION

This case presents the question of whether the respondent refused to provide the complainant with a reasonable accommodation for her disability.  The initial burden is on the complainant to prove that a reasonable accommodation is available.  Hutchinson Technology, Inc. v. Labor and Industry Review Commission, 273 Wis. 2d 393, 682 N.W.2d 343 (2004).  A "reasonable accommodation" is one that effectively enables the disabled individual to perform the job-related responsibilities of his employment.  Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998).  However, a reasonable accommodation is not limited to that which would allow the employee to perform all of his or her job duties.  A change in job duties may be a reasonable accommodation in a given circumstance.  Crystal Lake Cheese Factory v. LIRC and Catlin, 2003 WI 106 at 52, 664 N.W.2d 651.  See, also, Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb.  16, 2001); Austin v. Walgreen Co., ERD Case No. 200800261 (LIRC June 30, 2011).  If an employer offers an accommodation which effectively eliminates the conflict between the disabled employee's abilities and the job requirements, and which reasonably preserves the affected employee's employment status, the accommodation requirement has been satisfied.  Norton v. City of Kenosha, ERD Case No. 9052433 (LIRC March 16, 1994). 

The employer has an 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.  However, 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.  See, Castro v. County of Milwaukee Sheriff's Department, ERD Case No. CR200800720 (LIRC Dec.  20, 2011).  Gamroth v. Wisconsin Department of Corrections, ERD Case Nos. CR200303157, CR200303158, and CR200303159 (LIRC Oct. 20, 2006). 

In her petition for commission review the complainant argues that the fact she was able to perform her job for fifteen years with the same restrictions, and that she was never written up or the subject of a complaint based upon her work restrictions, proves that she could be accommodated on the first shift.  The complainant contends that this case is like Roytek v. Hutchinson Technology, Inc., ERD Case No. 199903917 (LIRC Jan.  28, 2002), in which the commission found that the fact an employee had been successfully accommodated for an extended period of time demonstrated that a reasonable accommodation was available.  The complainant also argues that she could do more of the job than the respondent says she could do, and further, that the respondent is insisting she can perform all the functions of her job, which was a concept rejected by the commission and courts in Catlin v. Crystal Lake Cheese Factory, ERD Case No. 199800991 (LIRC July 20, 2001), aff'd sub. nom Crystal Lake Cheese Factory v. LIRC and Catlin, 2003 WI 106 at 52, 664 N.W.2d 651.  The complainant further maintains that the respondent failed to engage in an interactive process with her that could have resulted in an accommodation on first shift.  Finally, she contends that the transfer to second shift is not a reasonable accommodation, since working evenings causes fatigue, which is problematic, given her multiple sclerosis (hereinafter "MS").

The complainant's arguments are unpersuasive.  The essential fact in Hutchinson, cited above, is that, although the employer's previous accommodation of the complainant's disability had not resulted in any problems for it, the employer nonetheless decided to discontinue the accommodation because it had a policy of only providing accommodations on a temporary basis.  In this case, by contrast, the respondent did not choose to discontinue an effective accommodation.  Rather, the respondent presented significant evidence establishing that the accommodation it had been providing the complainant was not working.  For one thing, the three other custodians who worked with the complainant all testified that the complainant was performing only about two and a half to three hours of actual work during her eight-hour shift.  While the complainant disagreed with this assessment, the administrative law judge found the respondent's testimony to be credible on this point, and based on the limited number of tasks the complainant could perform and the large number of tasks she could not, (1)   it seems apparent that the complainant was performing far less than eight hours of productive work.  Moreover, without regard to how many hours of work the complainant was performing each day, the evidence shows that permitting the complainant to perform only those duties she was capable of performing resulted in operational inefficiencies and extra expenses for the respondent.  For example, the complainant was unable to fill in for absent co-Worker's, and there were instances when the respondent had to hire extra staff to assist with duties the complainant was unable to perform, such as summer cleaning.  Accommodating the complainant in this manner also resulted in morale problems for her fellow custodians, who were required to step in and cover for the complainant, sometimes at the expense of completing their own job duties.  Although morale problems associated with providing an accommodation do not necessarily render an accommodation unreasonable or constitute a hardship, see, Wickstrom v. Hutchinson Technology, Inc., ERD Case No. CR200001242 (LIRC Aug. 25, 2005)(the mere fact that some co-Worker's may think accommodations are unfair does not release an employer from its duty of assisting disabled Worker's to remain employed), where, as here, the accommodations actually result in significant burdens for other Worker's, considerations of morale are appropriate.  Upon consideration of all the facts, it seems clear that allowing the complainant to perform only those limited tasks that were within her capabilities was not a reasonable accommodation.

The complainant has not demonstrated that any other reasonable accommodation is available that would enable her to perform her duties at Wausau East High School on first shift.  While the complainant argues that she could do all of the light duty tasks, including those currently performed by the other two custodians, and in this way fill her work day, the evidence does not establish that there are eight hours of light duty work available for the complainant to perform.  Further, to structure the job in this manner would result in the same types of operational inefficiencies referenced above and would, in all likelihood, only increase the already poor morale of the other custodians.  The complainant also argues that the respondent failed to undertake any analysis of whether her disabilities could be accommodated by modifying the way certain tasks are performed.  However, the majority of the modifications suggested by the complainant -- such as carrying just a few reams of copy paper rather than a full box, scooping salt into the water softener with a coffee can rather than dumping a 20-pound bag, or breaking bags of garbage down into several smaller chunks -- would be inefficient and time-wasting and, moreover, would enable the complainant to perform only a handful of additional job duties.

The final question presented is whether the transfer to second shift at Lincoln Elementary constitutes a reasonable accommodation for the complainant.  The complainant's argument is that this accommodation is not a reasonable one because second shift work causes fatigue and exacerbates her MS.  However, the record contains little evidence to support this.  The complainant's work restrictions make no reference to shift, and prior to the transfer to Lincoln, the complainant frequently worked extra evening hours selling tickets at school athletic events.  Consequently, the respondent had reason to believe the complainant would be able to handle second shift work.  When, after the transfer to Lincoln had already occurred, the complainant provided a letter from her doctor stating that she recommended first shift work, the respondent reasonably interpreted that as a recommendation rather than as a medical restriction, and advised the complainant that they would see how it went.  Thereafter, the complainant repeatedly told the custodial supervisor that things were going well.  The complainant never missed any work because she was tired.  While she saw her doctor on several occasions after her transfer to second shift, none of those doctor visits were for problems related to fatigue.  In fact, doctor's notes from appointments in October of 2007, November of 2007, and February 2008, indicate that the complainant's MS was stable and that she was doing very well, notwithstanding her assignment to second shift work.

Under all the circumstances, the commission can see no reason to conclude that the transfer to second shift was harmful to the complainant or that it did not amount to a reasonable accommodation.  While the complainant may have valid personal reasons to prefer first shift and to want to remain at Wausau East, she has not established that a reasonable accommodation is available for her that would allow her to do so.  The respondent took reasonable steps designed to continue the employment relationship, and the complainant did not establish that its actions were undertaken in violation of the Wisconsin Fair Employment Act.  The dismissal of the complaint is, accordingly, affirmed.

 

NOTES: The first two pages of the administrative law judge's memorandum opinion are devoted to a discussion of burden shifting and allocations of burdens of proof, a matter which may be relevant where the employer's motivations for taking an adverse employment action are in question.  However, the only issue in this case is whether the respondent refused to provide the complainant with a reasonable accommodation for her disability.  Because the burden shifting analysis referenced above has no bearing on that question, the commission has deleted that portion of the administrative law judge's memorandum opinion.

In its responsive brief the respondent argues that Dr.  Spurgeon's testimony should have been excluded, because the complainant did not include her on its witness list submitted prior to the hearing and the respondent was unable to prepare for her testimony.  The commission considers it unnecessary to decide this question in light of its decision affirming the administrative law judge's conclusion that the respondent did not violate the Act.

 

cc:
Attorney Lucy Brown
Attorney Jeffrey Jones



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Footnotes:

(1)( Back ) The credible evidence adduced at the hearing established that the complainant is unable to, among other things, empty cafeteria garbage, move heavy furniture and equipment, such as cafeteria tables or wrestling mats, lift a mop bucket, operate a wet vac or a shampooer (which requires pushing or pulling more than 20 pounds on slippery floors), strip and wax floors, assist with cleaning up spills, remove ice and snow, set up bleachers, install white boards, change ceiling tiles or filters, or operate a weed whacker.  The complainant is also unable to assist in the various emergencies that arise, such as cleaning up after a broken pipe or assisting after an ice storm. 

 


uploaded 2012/06/15