JAMES A NESBERG, Complainant
COUNTY OF MARINETTE, 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 conclusions in that decision as its own, except that it makes the following modification:
Paragraph 18 of the administrative law judge's FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:
"In approximately 2003 an employee by the name of Bob Baxter was temporarily assigned to light duty in the stock room while recovering from a worker's compensation injury. Baxter, who was approximately 57-years old at the time, chose to retire before he recovered from his injury sufficiently to return to his regular job as a mechanic. Baxter's circumstances were not comparable to the complainant's, as the complainant had a permanent injury and there was no reason to believe he would recover so as to be able to return to his former job as a highway maintenance worker."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
June 14, 2013
nesbeja : 164 : 5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
In his petition for commission review the complainant argues that the administrative law judge did not apply the correct burdens of proof. The complainant maintains that the respondent acknowledged a reasonable accommodation was available by providing an alternate position, and that the complainant sought the accommodation by communicating his interest in that position. The complainant states that the burden then shifted to the respondent to establish hardship and to prove that the complainant was incapable of performing the work even with accommodation, but that the respondent did not sustain that burden. The complainant's argument fails. In a reasonable accommodation case, the complainant bears the initial burden of demonstrating that there was an accommodation available that would have allowed him or her to continue working notwithstanding his or her disability. It is then up to the respondent to establish that the proposed reasonable accommodation would create a hardship for it. See, Hutchinson Technology, Inc. v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343. In this case, the complainant has identified what might be considered a reasonable accommodation -- transfer to the position of economic support worker. (1) However, while the complainant initially expressed an interest in the position, he removed himself from consideration by failing to respond to the respondent's repeated requests that he supply it with information about his qualifications for the job. Moreover, even if the complainant had responded to the respondent's request, the evidence indicates that he lacked the proper educational background, skills and work experience necessary to work as an economic support worker; the complainant himself acknowledged that he was not qualified for the job. While a transfer to a new job may be a reasonable accommodation for an employee with a disability, the respondent was not required to place the complainant in a job which he lacked the qualifications to adequately perform in order to satisfy its duty of providing a reasonable accommodation. Consequently, assuming without deciding that the complainant has met his burden of demonstrating that a reasonable accommodation was available, the evidence supports a conclusion that to provide that accommodation would create a hardship for the respondent.
At the hearing the complainant also testified that the respondent had accommodated another worker several years earlier by permanently placing that individual on a light duty assignment until such time as he was eligible for retirement. However, it appears that the individual in question was temporarily placed on light duty while he recovered from a worker's compensation injury, and that the respondent expected him to eventually resume his former job duties as a mechanic. The complainant, by contrast, had permanent restrictions and was not expected to return to his former job. He was, therefore, not a candidate for a temporary light duty position, even assuming such position had been available. The commission has modified the administrative law judge's findings of fact to clarify this point. That minor modification notwithstanding, the commission agrees with the administrative law judge's ultimate conclusion that the complainant failed to demonstrate he was denied a reasonable accommodation. Accordingly, the dismissal of the complaint is affirmed.
cc:
Attorney Terence Bouressa
Attorney Kristofor Hanson
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