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

NATHAN L KNIGHT, Complainant


ERD Case No. CR200600021,

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 the last sentence of paragraph 52 of the administrative law judge's FINDINGS OF FACT the term "the maximum" is deleted and the term "his maximum" is substituted therefor.

2. Paragraphs 55 and 56 of the administrative law judge's FINDINGS OF FACT are deleted, and the remaining findings are renumbered accordingly.

3. In the first full sentence on the top of page 14 of the administrative law judge's decision (currently numbered as paragraph 57 of the FINDINGS OF FACT), the phrase "would drainage" is deleted and the phrase "wound drainage" is substituted therefor.

4. Paragraph 5 of the administrative law judge's CONCLUSIONS OF LAW is deleted and the following is substituted therefor:

"The respondent has not shown that the complainant failed to mitigate his losses from the time of his discharge to October 1, 2007."

5. Paragraph 6 of the administrative law judge's CONCLUSIONS OF LAW is deleted and the following paragraph is substituted therefor:

"The respondent has shown that the complainant is presently unable to perform the job-related functions of the position of RSR lift driver with or without an accommodation."

6. Paragraph 2 of the administrative law judge's ORDER is deleted.

7. The first sentence in paragraph 3 of the administrative law judge's ORDER is deleted and the following sentence is substituted therefor:

"The respondent shall make the complainant whole for all losses of pay and benefits that the complainant has suffered by reason of its unlawful termination of his employment by paying him the amount he would have earned as an employee from June 23, 2005 to October 1, 2007.

8. The last sentence in paragraph 4 of the administrative law judge's ORDER is deleted.

9. The following paragraph is inserted after Paragraph 5 of the administrative law judge's ORDER, and the remaining paragraphs are renumbered accordingly:

"That the respondent shall pay to the complainant reasonable attorney fees and costs associated with responding to the respondent's petition for commission review, in the amount of $3,934.00. A check in that amount shall be made payable to the trust account of Attorney James G. Birnbaum and delivered to Mr. Birnbaum."

10. Paragraph 6 (renumbered to paragraph 7) of the administrative law judge's ORDER is deleted, and the following 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 decision. 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)."


The FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER of the administrative law judge (copy attached), is modified and, as modified, is affirmed.

Dated and mailed October 11, 2012
knighna . rmd : 164 : 5


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


Conviction record discrimination

The Wisconsin Fair Employment Act (hereinafter "Act") prohibits an employer from engaging in any act of employment discrimination against any individual on the basis of arrest or conviction record. See, Wis. Stat. § § 111.321 and 111.322. However, the law contains the following exception:

Notwithstanding s. 111.322, it is not employment discrimination because of conviction record to refuse to employ or license or to bar or terminate from employment or licensing, any individual who:

1. Has been convicted of any felony, misdemeanor or other offense the circumstances of which substantially relate to the circumstances of the particular job or licensed activity. . . .

Wis. Stat. § Section 111.335(1)(c)1.

In drafting that exception, the legislature sought to strike a balance between society's interest in rehabilitating those who have been convicted of crime and its interest in protecting citizens. County of Milwaukee v. LIRC, 139 Wis. 2d 805, 821, 407 N.W.2d 908 (1987). In County of Milwaukee the Wisconsin Supreme Court stated, in relevant part:

"This law should be liberally construed to effect its purpose of providing jobs for those who have been convicted of crime and at the same time not forcing employers to assume risks of repeat conduct by those whose conviction records show them to have the 'propensity' to commit similar crimes long recognized by courts, legislatures and social experience.

"In balancing the competing interests, and structuring the [statutory] exception, the legislature has had to determine how to assess when the risk of recidivism becomes too great to ask the citizenry to bear. The test is when the circumstances, of the offense and the particular job, are substantially related."

Id. at 823.

It is undisputed that the complainant was discharged based on his criminal conviction record, and the sole question presented in this case is whether the respondent established its affirmative defense that the circumstances of the complainant's conviction record are substantially related to the circumstances of the job.

On January 23, 1995, the complainant pled guilty to and was convicted of third degree sexual assault/use of a dangerous weapon, first degree recklessly endangering safety, and false imprisonment. The complainant's convictions were all based upon a single incident that took place in November of 1994. The victim of the complainant's crimes, Greta Gearing, was an individual with whom the complainant had had a dating relationship, but who was attempting to end that relationship. The incident took place in the complainant's home, where Gearing and the complainant were watching a movie together. The complainant threatened Gearing with a gun and a knife, threatened to kill himself, and had sex with her against her will.

The administrative law judge found that the offenses for which the complainant was convicted revealed the following character traits: willingness to obtain sexual gratification by use of force, weaponry or threat of violence, willingness to restrain another against his or her will, and a tendency to act recklessly without regard for the consequences for the safety and well-being of another. The administrative law judge noted that the complainant's offense took place in the house where he was living and that the victim was a woman with whom he had had a boyfriend-girlfriend relationship. He concluded that this context was distinct from the complainant's work environment at Wal-Mart and tended to reduce the likelihood of repeated criminal behavior taking place in that environment.

In its petition for commission review the respondent argues that the administrative law judge erred in considering self-serving testimony from the complainant that was offered in an attempt to mitigate his crimes and, further, that the administrative law judge misstated the facts, as the complainant and the victim of his sexual assault were not in any type of domestic relationship, did not live together, and were not married or engaged. This argument lacks merit. The administrative law judge did not find that the complainant was involved in a "domestic relationship" with his victim, but only that the complainant and Gearing had had a boyfriend-girlfriend relationship prior to and within the calendar year 1994, when the assault took place. This fact is not disputed, and is supported by information in the police report submitted by the respondent.

In its petition the respondent also argues that the factual circumstances of the crime are irrelevant under the inquiry articulated in County of Milwaukee, supra, so that the fact it took place at home involving someone the complainant knew should have no bearing on the outcome of the case. The commission disagrees. In County of Milwaukee the court stated, "As a general rule, the circumstances of the offense are gleaned from a review of the elements of the crime, and an inquiry into the factual details of the specific offense is not required." County of Milwaukee, 139 Wis. 2d 805, 824. However, this does not mean that it is never appropriate to look at the factual circumstances of the crime if doing so will help elucidate whether the crime is related to the job, and, indeed, the commission has issued decisions in which it has taken into account the fact that the criminal conduct at issue occurred in the context of a personal relationship or in a domestic setting, rendering it less likely to be repeated at the workplace.

For example, in a decision finding no substantial relationship between the crime of sexual assault of a child and the job of district manager for an automotive store, the commission took note of the fact that the complainant's crime was perpetrated in a domestic setting and involved a victim with whom the complainant had a close personal relationship. The commission stated that, given those circumstances, there was no reason to presume the mere proximity of children was a circumstance likely to foster repeat criminal behavior. Murphy v. Autozone (LIRC, May 7, 2004), aff'd. sub nom. Autozone v. LIRC and Murphy, No. 04-CV-1710 (Wis. Cir. Ct. Dane County Jan. 18, 2005). In a similar case, also involving the crime of sexual abuse of a child, and employment in the automotive department of a department store, the commission observed that the complainant's crime was one of opportunity, and that there was nothing to suggest that the mere sporadic or incidental presence of children in the workplace was a circumstance that would cause him to reoffend. Fink v. Sears Roebuck & Co., ERD Case No. 200404227 (LIRC, March 1, 2007). However, while the commission made reference to the fact that the crime occurred in a domestic setting as evidence that the job environment was not one in which either individual was likely to reoffend, neither Murphy nor Fink relied exclusively upon that fact in order to reach the conclusion that there was no substantial relationship between the crime and the job. Rather, the commission's primary focus was on the nature of the workplace and the lack of contact the complainants would have with children.

Turning to the instant case, while the complainant and Gearing did not have a "domestic relationship," they did have a personal relationship; they had been dating for some time and were in the process of breaking up. The complainant's crime occurred in response to Gearing's attempts to break off the relationship, and it occurred at his home. The commission considers this domestic setting and personal relationship relevant, and it agrees with the administrative law judge that the context of the complainant's crimes was distinct from the context of his work environment at Wal-Mart. However, as in Fink and Murphy, cited above, it is not necessary to rely on the so-called "domestic setting" of the complainant's crimes in order to reach the conclusion that they are not substantially related to the circumstances of the job. To the contrary, the commission agrees with the administrative law judge that the complainant's job as an RSR lift driver in the respondent's dry warehouse simply did not provide the complainant with a significant opportunity to reoffend. The key portion of the administrative law judge's analysis is as follows:

"In this case, considering the regimentation of Knight's job, management's knowledge of where he was supposed to be in the plant during the course of his day, the grid-layout of the warehouse, the degree to which Knight encountered supervisors and others whose assignments were related to monitoring employee activity (asset protection personnel, risk control personnel, assistant coaches), the degree to which he encountered co-employees, the presence of security cameras, and the computerized system that tracked Knight's activities, there did not appear to be a substantial opportunity for Knight to engage in the type of behavior at work for which he was convicted. There were places in the plant that were not within the view of security cameras, and places that were not frequented by others, in which a person might be able to hold an adult female against her will and commit a sexual assault against her, but given the effort and length of time such an act would take, the risk that it would be seen or discovered despite its being in a relatively remote area would be considerable, considering the number of personnel on the premises and the other monitoring controls that existed. This risk of discovery diminishes opportunity. The fact that there were several less controlled areas in the warehouse did not afford a particular and significant opportunity for Knight to engage in criminal behavior at the workplace."

The respondent disagrees. In its brief to the commission it emphasizes that the complainant worked with little supervision in an enormous facility, circumstances which it contends provide an opportunity for criminal conduct. However, while the complainant may not have been subject to direct, over-the-shoulder supervision, the record established that there were job coaches, quality assurance employees, and asset protection employees who went through the warehouse at random times during the day observing the performance of workers. The record also established that the complainant was required to log each completed task into a computer system that made the respondent aware of his actions. At the hearing the complainant testified that on one occasion he was not on the system for twenty minutes and was called into a meeting by his supervisor and asked to account for his whereabouts and actions during that time period. While the respondent emphasizes the freedom of movement the complainant had in a large plant, the record paints a different picture; the complainant, although ostensibly working alone, was accountable for his activities and knew that at any moment he might be observed or monitored by the respondent.

The record also indicates that the warehouse and employee parking lot are monitored by cameras, and that employees are aware of this fact. Not only is the presence of cameras posted on a sign outside the warehouse, but upon exiting the building employees walk past the loss prevention office in which the monitors are visible. While the respondent argues that the majority of the plant is not covered by cameras, the evidence establishes that employees are not aware of where all the cameras are located or what portions of the warehouse they cover. The commission believes that the presence of cameras in the workplace, as well as in the employee parking lot, a matter of which the respondent's employees are generally aware, serves as a deterrent to criminal activity.

The respondent also makes the argument that there can be vacant areas of the warehouse that are not monitored by cameras where an employee could commit a criminal act, such as conference rooms, banana ripening rooms, bathrooms, and the break room. Again, however, it is not clear that the employee would know which of these rooms was monitored by cameras. Moreover, the spaces in questions are often in use, and an employee would have no way of knowing whether a room would be vacant or whether or when someone might walk in.

In deciding whether the circumstances of a particular job are conducive to committing a crime, the commission does not simply look at whether it would be possible to commit a crime in that workplace, but whether the job presents a significant opportunity to do so:

"[T]he mere possibility that a person could reoffend at a particular job does not create a substantial relationship. Rather, the question is whether the circumstances of the employment provide "a greater than usual opportunity for criminal behavior," Moore v. Milwaukee Bd. of School Directors (LIRC, July 23, 1999), or "a particular and significant opportunity for such criminal behavior." Herdahl v. Wal-Mart (LIRC, Feb. 20, 1997). It is inappropriate to deny the complainant employment opportunities based upon mere speculation that he might be capable of committing a crime in the workplace, absent any reason to believe that the job provides him with a substantial opportunity to engage in criminal conduct."

Robertson v. Family Dollar Stores Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005).

While it is true that a very motivated criminal might be able, with the assistance of a box cutter or a jagged piece of a pallet, to force a female worker into an empty conference room or banana ripening room and assault her, it seems unlikely he could do so unnoticed, and it is hard to envision a circumstance where this might occur. Notwithstanding the respondent's arguments to the contrary, it appears as if this workplace is less, not more, conducive to criminal conduct than most. Without regard to the so-called "domestic setting" analysis, the respondent's warehouse provides little or no opportunity for even the most committed sex offender to engage in criminal activity.

Upon consideration of all the facts and circumstances, the commission agrees with the administrative law judge that the complainant's criminal conviction was not substantially related to the job of RSR lift driver and that the complainant's discharge, which the respondent concedes was because of his criminal record, was in violation of the Act.


The complainant's last day of work for the respondent was June 23, 2005. Thereafter the complainant sought and obtained employment at Ashley Furniture, which was not comparable to his employment with the respondent, but later quit that job in order to attend Western Wisconsin Technical College. While the complainant was enrolled in vocational school he took a part-time job as a wash-bay attendant at a business called Flying J's. However, the complainant later quit that job because it was interfering with his school work. In May of 2007 the complainant dropped out of technical college because he was having health problems. During the same month the complainant began working at Naden Cranberry Marsh as a handyman. He quit that job on October 1, 2007 for reasons related to his health.

In its petition for commission review the respondent argues that the complainant is not entitled to back pay between August of 2006 and May of 2007, the time period during which he attended vocational school. The respondent maintains that the complainant removed himself from the labor market to become a full-time student and that, pursuant to Robertson v. Family Dollar Stores Inc., ERD Case No. CR200300021 (LIRC Oct. 14, 2005), he was not entitled to back pay during this time period. The commission has considered this argument, but does not find it persuasive. The commission disallowed back pay in Robertson, because the complainant stopped looking for work and testified that he was planning to enroll in school on a full-time basis and to help out at a family run business without pay. The commission concluded that these activities were not undertaken in mitigation of his damages. By contrast, the commission declined to order a reduction of back pay in a case in which, following his discriminatory discharge by the employer, the complainant enrolled in taxidermy school and set up his own taxidermy business. The commission concluded that those actions were undertaken in a reasonable effort to mitigate the complainant's damages and should not act to reduce back pay. Fields v. Cardinal TG, ERD Case No. 199702574 (LIRC Feb. 16, 2001).

The instant case resembles Fields more closely than it does Robertson. Rather than renouncing his attachment to the labor market, as the complainant did in Robertson, the complainant in this case explained that he was attending technical school in order to gain the skills necessary to become employed with a specific employer in the area. The complainant also attempted to continue in paid employment while attending school, but quit that employment when it interfered with his school work. The commission can see no reason to believe that the complainant's efforts were not undertaken in mitigation of his damages, and it does not consider it appropriate to reduce his back pay as a result.

However, while the commission agrees with the administrative law judge that the complainant is eligible for back pay up until October 1, 2007, including the period of time when he was enrolled in technical school, it is undisputed that the complainant was completely unable to work from October 1, 2007 through September 2, 2009 because of his medical problems, and the commission does not believe that he remained eligible for back pay or reinstatement thereafter.

The respondent contends that, had the complainant remained employed, he would have been entitled to take a maximum of one year of personal or medical leave, and that his employment would have been terminated due to his continued unavailability for work. Prior to the hearing on remedies, the respondent made a motion to introduce evidence on this point. The respondent argued that the commission had considered the issue previously and had found that reinstatement was precluded in circumstances analogous to the instant case. Matousek v. Sears Roebuck & Co., ERD Case No. 200302571 (LIRC Feb. 17, 2006). In Matousek, the commission noted that because of occurrences subsequent to the termination (the complainant's incarceration for about eight months because of a parole violation), the complainant would have become unavailable for employment and would have been terminated at that time as a result of his inability to be available for employment. The commission therefore concluded that an order of reinstatement was not appropriate.

In a ruling dated January 4, 2010, the administrative law judge denied the respondent's motion to present evidence establishing that the complainant's employment would have ended because of his unavailability for work. The administrative law judge reasoned that, in a discharge case, reinstatement is the presumed remedy, and that while the employer may rebut the presumption that reinstatement is appropriate based on the complainant's lack of fitness to perform the job, this argument would need to be based upon the complainant's current abilities, and that the complainant's ability to perform in 2007-2009 had no bearing on his right to reinstatement. In arriving at that conclusion, the administrative law judge found that i was distinguishable on the ground that the complainant in that case was unavailable to work due to his own actions, whereas in the instant case the complainant was physically unable to work.

The commission disagrees with the administrative law judge's analysis and it believes the administrative law judge erred in refusing to allow the respondent to present evidence establishing that it would have discharged the complainant based upon his unavailability for work. What the commission is required to do in fashioning a remedy is to re-create the conditions and relationships that would have existed if the unlawful discrimination had not occurred, i.e., to determine how to make the employee whole. Powell v. SBC Ameritech, ERD Case No. CR200100576 (LIRC April 21, 2003). The concept of make-whole relief does not include reinstating the complainant into a job that he would have been unable to keep even in the absence of any discrimination by the respondent. Further, the commission sees no reason to distinguish between an employee who loses his job because of unavailability to work related to criminal conduct and one who loses his job because of unavailability to work due to illness. The relevant point is that, due to circumstances over which the respondent had no control, the complainant would have been completely unable to perform any work for it over a prolonged period of time. Assuming the respondent could have established that it would have discharged the complainant based upon his unavailability for work, a circumstance that it contends would have occurred even in the absence of any discrimination, the commission can see no basis to distinguish this case from Matousek. (1)

The complainant makes the argument that he would not have been discharged because the respondent would have been required to offer him an accommodation had he remained employed. This argument is without merit. Because the complainant was completely unable to work, the only accommodation that would have been available for him was a leave of absence. Although the commission has found that a medical leave of absence may be a reasonable accommodation, it has specifically held that an employer is not required to hold a job open indefinitely by way of a reasonable accommodation, particularly where there is no foreseeable return-to-work date. Janocik v. Heiser Chevrolet, ERD Case No. 9350310 (LIRC Nov. 21, 1994); Lewandowski v. Galland Henning Nopak, Inc., ERD Case No. 199603884 (LIRC Jan. 28, 1999). See, also, King v. City of Madison, ERD Case No. CR200502359 (LIRC Dec. 21, 2007)(employer not required to provide medical leave for an employee who was unable to work for nearly eighteen months). In this case, it is undisputed that the complainant was completely unable to work for nearly two years. The commission would not require an employer to hold a job open for a disabled employee for that period of time by way of reasonable accommodation.

For the reasons set forth above, the commission believes that evidence establishing that, even had the complainant not been discharged in 2005 for discriminatory reasons, he would have been discharged later based upon his lengthy period of unavailability for work, would have been relevant to determining the appropriate remedy, and that the administrative law judge should have allowed the respondent to present such evidence. However, the commission considers it unnecessary to order further hearing on this question because the evidence in the record contradicts the complainant's assertion that he become able to work in September of 2009 and, to the contrary, it appears that he remained unable to work as of the date of the hearing. Where, after a discriminatory discharge, the complainant's physical condition renders him permanently physically unable to return to his employment with the respondent, no reinstatement is ordered. Macara v. Consumer Co-op of Walworth County, ERD Case No. 8802872 (LIRC Feb. 14, 1992). Consequently, whether or not the complainant would have been discharged based upon his lengthy unavailability for work, the commission concludes that the complainant was ineligible for reinstatement after October 1, 2007.

The job of RSR lift driver was a physically demanding one, requiring the complainant to regularly lift freight weighing forty to seventy pounds from ground level to shoulder level, to occasionally lift freight up to eighty pounds, and to carry individual cases up to 100 feet. The job necessitated continuous standing, with frequent reaching above the shoulder, and frequent bending, stooping, squatting, and twisting. The job also required repetitive movement of the feet to operate braking controls.

On August 11 and 12, 2009, the complainant met with an occupational therapist by the name of Wendi Ruoff for a functional capacity evaluation. Ms. Ruoff ran the complainant through a variety of physical tests. She observed him lifting an item from the floor to waist level five times within thirty seconds, adding progressively more weight each time. However, when the complainant got up to sixty pounds he reached his maximum heart rate and the test was discontinued. The occupational therapist also had the complainant perform a waist to top of head lift, which he was able to do up until fifty pounds, at which time he was heart-rate limited, and a horizontal lift, which he could do until seventy-five pounds when he was heart-rate limited. In addition, the complainant adequately performed static and dynamic pushing and pulling, and right, left-handed and front carrying. He was asked to do "elevated work," but reported that it caused his shoulders to burn, and sitting and standing trunk flexion, which caused his hamstrings to cramp up. Tasks the complainant was able to do included sitting and standing rotation, crawling, kneeling and crouching. However, he reached his maximum heart rate attempting to squat, climb stairs and climb a step ladder.

Ms. Ruoff's report indicates, under the section entitled "Significant Abilities," that the complainant had good hand strength and coordination, was able to push and pull with force, lift horizontally, rotate sitting and standing, walk, and exhibit sitting and standing tolerance. "Significant Deficits" included lifting floor to waist, waist to overhead, horizontal lift (a skill that was also listed as a "significant ability"), repetitive squat, stair climbing and step ladder climbing. Ms. Ruoff observed that some of the complainant's limitations were due to heart rate limitations, which she attributed to the complainant's overall deconditioned state. The report ended with the following recommendations:

"The physical abilities match the job description of lift driver. Therefore the client has demonstrated the ability to physically return to this job. The recommendations should be used to increase the functional level and improve endurance and conditioning. Physical therapy and/or work hardening with the object of improved endurance and strength due to the patient's heart rate limitation. Due to the heart rate limitation on floor to waist, overhead waist, overhead lift, and horizontal lift, this OT believes the patient was definitely capable of lifting greater weight, but due to the policy within the particular FCE test, this OT had to terminate the test due to heart rate above 147, which is his maximum."

Doctor's notes signed by the complainant's family practice doctor, Kristen O'Dell, dated August 13, 2009, state, "Per functional work capacity patient has demonstrated the ability to physically return to the job of lift driver. Results were discussed with patient. He is pleased. . ." However, in a pre-hearing deposition conducted on March 12, 2010, Dr. O'Dell was asked whether she formed an independent opinion that the complainant was physically able to return to his job at Wal-Mart, and repeatedly responded that she did not. Dr. O'Dell did not appear at the hearing, and there is no testimony from her as to whether she agrees with the occupational therapist's report. There is also no testimony or other evidence from the surgeon who performed the abdominal surgeries or skin graft with regard to the complainant's ability to perform a job involving heavy lifting, constant standing, and the repetitive operation of foot brakes.

Prior to the remedy hearing the respondent arranged to have the complainant examined by an independent medical examiner, Dr. Jay Goodwin. Dr. Goodman performed his examination on September 24, 2009 and, on October 3, 2009, he issued a report in which he concluded that it was his professional opinion, to a reasonable degree of medical probability, that the complainant was not capable of performing the functions of a lift driver on a permanent basis.

Dr. Goodwin appeared at the hearing and offered extensive testimony regarding his impressions of the complainant. Dr. Goodman testified that he has performed thousands of abdominal surgeries during the course of his career, and stated that he was basing his opinions on a physical examination of the complainant and a review of the complainant's medical records. Dr. Goodman recapped the complainant's medical history and explained that the complainant has a massive incisional hernia and that, as a result of all the medical procedures to which he was subjected, the complainant's rectus abdominus muscles were spread and could not be reconnected. Dr. Goodman explained that those muscles form an individual's "front brace" that is absent for the complainant, leaving him with no core body strength. Dr. Goodman further stated that the complainant's skin graft has no stretch to it, and will only get tighter and tighter. He explained that muscles get farther and farther apart as one does physical activity and that, although the complainant did not yet have a burst abdomen, with time he could develop a hole through his skin graft and his intestines could come out.

Dr. Goodman indicated he was also concerned about the complainant's increased heart rate, and explained how incisional hernia disease could put stress on the heart. After examining the complainant, Dr. Goodman observed that he was hypertensive and that even his resting heart rate was abnormal. He testified that the elevated heart rate was not caused by deconditioning and would not be improved with exercise. In addition, Dr. Goodman identified other problems with the complainant's ability to perform the job. He testified that he observed the complainant had trouble with balance, especially squatting, because of his lack of core strength, that the complainant would have trouble operating the foot brake because his abdomen protruded so much he could not see his feet, and that the complainant is at risk for a MRSA infection, which could spread to other people. (2)   Dr. Goodman also cited back troubles related to the abdominal problem. He explained that the lack of muscles in the front place stress on the lower lumbar spine, and that he knew the complainant had a disk repair in 2006 that would be put under stress.

Dr. Goodman concluded that he did not see any way the complainant would ever be able to perform the job. He testified that he believed the complainant should not be lifting more than fifteen to twenty pounds and should not be performing manual work. He offered the opinion that the complainant's hernia would increase in size no matter what he did, but that the lift driver activity would markedly increase the development and that the complainant would be at risk for a burst abdomen. Dr. Goodman testified that exercise and conditioning will only make matters worse, not better, because it is not possible to strengthen muscles that are not attached. When asked if he was referring to the complainant getting injured in the future Dr. Goodman answered, "Right now."

Medical notes dated November 25, 2009, a few months after the complainant was examined by Dr. Goodman, indicate that the complainant complained to his doctor that his abdominal wall was bulging over the skin graft site and that this condition had been worsening in the last few months and was impeding him from doing some of his activities of daily living. A doctor's report dated February 3, 2010, indicates that the complainant had increased his activity level about a month earlier and for the last two weeks had been experiencing low back pain. In addition, a physical therapy report, dated February 17, 2010, indicates the complainant's back pain was greatest with walking and standing and that he was unable to stand for more than forty-five minutes.

The administrative law judge weighed the evidence and arrived at the following conclusion:

"The burden was on Wal-Mart to prove that Knight was permanently unable, with or without reasonable accommodation, to perform adequately in the position of RSR lift driver. The conflicting opinions of Dr. Goodman and OT Ruoff leave doubt about whether Knight can perform adequately without accommodation. Ruoff's conclusions are more persuasive than Goodman's on the question of whether Knight has the current ability to perform the functions of the job, because they were based on much more extensive testing of physical capabilities related to the functions of the job. Goodman's conclusions are more persuasive on the question of whether Knight's performance of the job is advisable because it may cause a significant risk of harm to himself. Nevertheless both opinions have an abstract quality about them because Knight has not actually attempted to perform the job since suffering from his medical condition. It is unknown to anyone, including health care professionals and Knight himself, what difficulties Knight might encounter performing his job due to his health condition, and how those difficulties might be overcome. Wal-Mart's evidence does not meet its burden of persuasion. In addition, the fact that this issue has arisen in the remedy phase of the case makes a difference. Although as a general matter an employer may not have to obligation to "try and see" whether an individual with a disability might be able to perform a job [citation omitted], in the remedy phase of a case, when the court has discretion in fashioning a remedy to effectuate the purpose of the act to encourage employment "to the fullest extent practicable" (§ 111.31(3), Wis. Stats.), it is not unfair to put the burden on the employer to undertake an effort to re-employ the wronged employee and give him a full opportunity to perform the job and if necessary propose reasonable accommodations to do so."

The commission disagrees with this analysis. While the employer does have the burden of proving that reinstatement is not an appropriate remedy, and while the commission agrees with the general proposition that doubts on this point should be resolved in favor of the wronged employee, the commission is satisfied that the respondent has met its burden in this case. Dr. Goodman's testimony was persuasive that the complainant was physically unable to perform the job because the heavy work would quickly exacerbate his medical condition and cause back pain, bulging, and very possibly a ruptured hernia. The commission does not agree with the administrative law judge that Dr. Goodman was merely guessing at what would happen; his testimony was unequivocal that the complainant's condition would quickly worsen. The complainant did not bring his doctors to the hearing to rebut Dr. Goodman's testimony, and there is no reason to assume they would disagree with his assessment. Moreover, evidence in the record suggests that as soon as the complainant attempted more physical activity his condition did, in fact, deteriorate.

The commission, on the other hand, does not consider Ms. Ruoff's report persuasive. Ms. Ruoff is an occupational therapist, not a physician. Her job is to evaluate the complainant's ability to perform the mechanics of the job, but there is no evidence to indicate that she has any expertise with respect to whether he can do so safely given his health condition. Further, although Ms. Ruoff's report indicated the complainant could perform the physical aspects of the job, the test results do not support this. The complainant never managed to meet the lifting requirements of the job without hitting his maximum heart rate, nor could he comfortably handle squatting or overhead reaching, tasks he would need to perform frequently on the job. While in her report Ms. Ruoff dismissed these problems as a matter of deconditioning, Dr. Goodman persuasively explained that conditioning would not help matters and would only make things worse, including with respect to placing stress on the complainant's heart.

The complainant argues that Dr. Goodman's testimony should be rejected because he did not have the complainant perform the same physical tests as the occupational therapist did, and did not ask him to perform any lifting. The complainant also finds fault with the fact that Dr. Goodman never visited the workplace. While, under other circumstances, these might be valid considerations, the commission does not believe they are relevant in this case. Dr. Goodman knew that the job of lift operator entailed heavy physical labor and knew, from his review of the complainant's medical records, his observation of the complainant's hernia, and his measure of the complainant's resting heart rate, that the complainant had a serious permanent medical condition that prevented him from performing heavy physical labor. It was unnecessary, and potentially dangerous, to ask the complainant to perform heavy physical tasks in order to assess his physical capabilities.

The complainant has also argued that the respondent is obligated to consider accommodations for him before concluding that he cannot perform the job. However, the commission can see no reason to believe that any accommodation exists to enable the complainant to perform a physically taxing job, and the complainant, who is familiar with the requirements of the job, has not proposed one.

Because the commission finds Dr. Goodman's testimony convincing, it concludes that the complainant was physically unable to return to his employment, with or without accommodation, and that therefore reinstatement is not appropriate. The administrative law judge's order has been modified in accordance with this memorandum opinion.  (3)

Attorney fees

The administrative law judge ordered the respondent to pay the complainant's attorney's fees and costs in the total amount of $223,058.22, plus interest. Although there was a significant dispute about the appropriate amount of attorney fees when the matter was before the administrative law judge, neither party has challenged the administrative law judge's fee order on appeal. Because the commission has restricted its review to those matters raised in the petition for review, it will not reexamine the findings and conclusions of the administrative law judge with regard to the reasonable attorney's fees and costs up to this point. See, Dude v. Thompson, ERD Case No. 8951523 (LIRC Nov. 16, 1990). The commission therefore adopts without further review the portion of the administrative law judge's Memorandum Opinion pertaining to attorney fees.

The complainant has requested additional attorney fees in the amount of $3,934.00 for work on the petition for review. That amount represents approximately twenty-two hours of work by two attorneys, at the hourly rates the administrative law judge previously decided were reasonable. About sixteen hours of that time was devoted to drafting the complainant's reply brief, and the remainder was for tasks such as reviewing the file, reviewing the respondent's brief, and conferences with the complainant and co-counsel. The total amount requested by the complainant's attorneys is not unreasonable, nor is the number of hours expended on the matter. Although the respondent has been given an opportunity to raise objections to the complainant's fee request, it has not done so. The commission, therefore, awards the $3,934.00 as requested.


Attorney Jessica Kirchner
Attorney James Birnbaum
Attorney Susan Zoeller

Appealed to Circuit Court.  Affirmed  October 24, 2013.

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) The complainant has argued that Matousek is no longer "good law" because it was reversed by a reviewing court. However, the court's reversal was on the question of liability. The court did not reach the issue of remedies and did not address the commission's finding that the complainant's subsequent unavailability for work would have cut off his right to reinstatement.

(2)( Back ) Progress notes prepared by the complainant's doctor indicate that he has a history of MRSA and was still being treated for that condition in the months following Dr. Goodman's examination. As of the date of the hearing the complainant was still a MRSA carrier.

(3)( Back ) The commission has also deleted the factual findings addressing the complainant's efforts to mitigate his damages after October 1, 2007. Because the commission considers it appropriate to cut off the complainant's damages at that point, his efforts to look for work thereafter are not relevant to the decision.


uploaded 2012/12/07