Louvenia Yvette Wilson, Complainant

County of Milwaukee, Respondent

The decision of the administrative law judge is reversed.  Accordingly, this matter is remanded to the Equal Rights Division for a hearing on the merits.

Dated and mailed September 16, 2016

123.5

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

Procedural Posture

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 makes the following:

 Findings of Fact

1.    The respondent in this matter, Milwaukee County (hereinafter “respondent”) is a municipal government that, among other functions, operates the Milwaukee County jail.

2.    The complainant in this matter, Louvenia Yvette Wilson (hereinafter “complainant”) began working for the respondent in 2008 as a Correction Officer I at the central jail in downtown Milwaukee.

3.    The position description for the job of “Correction Officer I” lists the following physical demands:

 . . . Ability to walk, stand, sit, kneel, push, stoop, squat, crawl, twist, reach above the shoulder, grasp, pull, bend repeatedly, climb stairs and ladders, identify colors, and lift and carry a 120 lb. dummy.  Ability to perform a three (3) minute 12 inch step test.  Ability to perform physical tasks (such as to restrain combative inmates who could weigh 250 pounds or more; apply/remove mechanical/soft restraints, e.g., handcuffs, R.I.P.P. bed, assist physically or mentally ill or incapacitated inmates. . .)  Must be capable of reporting for shift assignments regularly and on time and able to work more than 8 hours per day/40 hours per week on any day of the week, including weekends and holidays.

 . . .

You must be able to perform the essential functions of this position with or without a reasonable accommodation.  If a reasonable accommodation is needed, please provide that information below.

4.    Inmates at the central jail reside on multiple floors, and correction officers are required to climb stairs many times each day in order to do basic inspections.

5.    In 2009, shortly after the complainant began the job, she sustained an injury to her knee while going up some steps.  The complainant fully recovered from that injury.

6.    On September 19, 2012 the complainant was kicked in the left knee by an inmate.  The complainant sustained a torn meniscus and a torn ligament as a result of that incident, which necessitated surgery.

7.    The complainant was off of work until February of 2013, at which time she was assigned to work in the respondent's communications division, answering 911 calls.  The complainant had surgery to repair her knee in April of 2013.  Thereafter, she was assigned to work in the “civil process” unit, where she processed legal documents.  She remained in civil process for about six months.

8.    On August 1, 2013, the complainant's physician prepared a “Work Status Report” which indicated that the complainant was limited to “light-medium work,” defined as lifting 20 pounds frequently with occasional lifting of up to 30 pounds.  The report indicated that the complainant was also limited in the amount of twisting and climbing she could do (1 to 2 hours per day) and that she should do no squatting.  The report further stated that the complainant could work a total of 8 hours per day.  The complainant asked her doctor why he had included an hours restriction, and he removed it.  Both reports--the original document containing a restriction on work hours and the second document without any hours restriction--were provided to the respondent. 

9.    On September 17, 2013, the complainant's doctor prepared a “Practitioner's Report On Accident Or Industrial Disease In Lieu Of Testimony” on which he indicated that the complainant had a 7% permanent partial disability associated with left knee pain.  The report stated that the complainant would have permanent restrictions related to prolonged kneeling or squatting and that she would have to minimize stair climbing.  The report contained nothing about a weight restriction or a restriction on hours of work.

10. On or about September 30, 2013, the respondent's human resources coordinator referred the complainant to the respondent's Job Relocation Program.  The purpose of the Job Relocation Program is to find alternative county employment for county employees who are unable to perform their current jobs because of a permanent disability.  Employees in the program do not receive any job training, but are placed into open positions based upon their skills and abilities.  Some or all of those positions require that the employee take and pass a test.  Participation in the program lasts six months. 

11. On October 7, 2013, the complainant met with Sue Chase, the head of the Job Relocation Program, and signed the paperwork to participate in the Job Relocation Program.  The complainant was informed that her participation in the program would end on April 7, 2014.

12. During her meeting with Ms. Chase on October 7, the complainant also raised the possibility of being moved to the House of Corrections (hereinafter “HOC”).  The complainant had done a rotation in the HOC and knew that the inmates were all housed on one floor and that the job required little or no stair climbing.  The complainant believed she would have been able to work as a correction officer at the HOC, even with her restrictions.  The respondent rejected this suggestion.  Ms. Chase told the complainant that climbing stairs was a requirement for a correction officer and that transfer to HOC was not an option.

13. At some point in October of 2013 the complainant's work in the civil process unit ended. 

14. Shortly after being admitted to the Job Relocation Program the complainant took a test for a clerical position, but did not pass.  She also took a test for the job of communications highway safety dispatcher, but did not pass.[1]

15. In November of 2013, the complainant signed up to participate in a program through the Department of Vocational Rehabilitation (hereinafter “DVR”) that would provide her with job training and assist her in passing the tests needed to get placements through the respondent's Job Relocation Program.  The complainant was accepted into the DVR program in late March of 2014.  The complainant asked the respondent to grant an extension of her participation in the Job Relocation Program--which was set to end on April 7--while she completed her training through DVR.  The respondent refused to do so, although it was willing to give her an additional two weeks in the program so that she could retake the test for communications high safety dispatcher.  The complainant ultimately decided not to take the test, however, because she had received no additional training and felt the result would be the same.

16. The complainant was removed from the Job Relocation Program on April 21, 2014, without having found an alternate job.

17. On April 24, 2014, the respondent prepared an “Investigation Authorization Request” which indicated that the complainant was going to be investigated for the following work rule violations: absence from duty, and refusing or failing to comply with departmental work rules, policies or procedures and failure to or inability to perform the duties of the assigned position.  Once the complainant was no longer part of the Job Relocation Program the respondent considered her as being on an unauthorized absence, which it regarded as a work rule violation.

18. The complainant's employment with the respondent was terminated on June 26, 2014.

19. There is reason to believe that the respondent could have provided the complainant with a reasonable accommodation for her disability that would have enabled her to remain employed, but failed to do so.

Conclusions of Law

1.    There is probable cause to believe that the respondent unlawfully discriminated against the complainant based upon disability, in violation of the Wisconsin Fair Employment Act.

 Memorandum Opinion

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter “Act”), a complainant must establish that he or she is an individual with a disability, within the meaning of the Act.  Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980).  Section 111.32(8) of the Act defines the term “individual with a disability” as an individual who, (a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, (b) has a record of such an impairment; or (c) is perceived as having such an impairment.  An “impairment” for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition.  City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987).  The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity.  By contrast, the “limits the capacity to work” test refers to the particular job in question.  Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty.  AMC v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

The complainant in this case established that she has a physical impairment--a permanent injury to her knee--and that her physician has instructed her to minimize stair climbing as a result.  It is undisputed that the inability to climb stairs frequently rendered the complainant unable to perform her job at the central jail, as that job required a significant amount of stair climbing.  Under the circumstances, the complainant demonstrated that she had an impairment that limited the capacity to perform her job and, therefore, a disability within the meaning of Wis. Stat. § 111.32(8)(a).  Moreover, the complainant also established that she had a disability within the meaning of Wis. Stat. § 111.32(8)(c), in that the respondent perceived her as having an impairment that limits the capacity of work.  The respondent removed the complainant from her job as a correction officer because of her knee injury and placed her in its Job Relocation Program, a program that is only available to employees with permanent disabilities.

Having established that the complainant is an individual with a disability, within the meaning of the statute, the question to decide is whether the respondent refused to provide a reasonable accommodation for the complainant's disability and, if so, whether it established that to do so would have posed a hardship for it.  Based upon its review of the evidence, the commission finds probable cause to believe that there were, in fact, several reasonable accommodations that the respondent could have provided and that the respondent failed in its burden of establishing that to provide those accommodations would have resulted in a hardship.

The first and most effective accommodation identified by the complainant was a transfer to the House of Corrections (HOC).  The complainant testified, without rebuttal, that she had worked at the HOC in the past and knew that she could perform all of her job duties there.  Although the complainant's disability prevented her from climbing stairs frequently, the complainant explained that the inmates in the HOC were housed on a single floor so that little stair climbing was required.  The respondent presented nothing to rebut this testimony, and the commission can see no basis to conclude that a transfer to the HOC would not have constituted a reasonable accommodation that would have enabled the complainant to continue working as a correction officer. 

It is clear from the record that the respondent never seriously considered the question of whether the complainant could be transferred to the HOC, and instead took the approach that there can be no accommodations for prison guards.  The respondent's witnesses were consistent in their testimony on this point, with Ms. Chase explaining that it was not the “method” of the sheriff's department to accommodate physical disabilities.  The respondent did not address the question of whether the complainant's specific disability could have been accommodated by allowing her to work at the HOC, nor did it present any evidence to suggest that to do so would have posed a hardship for it.

A second accommodation proposed by the complainant and rejected by the respondent was to allow the complainant to remain in the Job Relocation Program beyond the six-month period usually afforded while she worked with DVR to gain the skills and training needed to find a new job.  The respondent had the discretion to extend the complainant's participation in the Job Relocation Program but refused to do so.  The only reason cited for this refusal was a concern for fairness towards external job applicants, since employees involved in the program were given first preference for county jobs.  However, the complainant was not requesting an unlimited amount of time in the Job Relocation Program, but merely asked to continue in the program while she worked with DVR to obtain the skills necessary to be chosen for a new job.[2]  The respondent has not shown that to allow the complainant more time in the Job Relocation Program--her participation in which was necessitated in the first place by the fact that she was injured while performing her job--was unreasonable or that to extend her participation would have created a hardship for it.

In his memorandum opinion the administrative law judge noted that the complainant was given an extra two weeks to get ready for the highway safety dispatcher test and did not present any evidence as to how she was preparing for the test on her own.  However, there is nothing in the record to indicate that the complainant could have effectively studied for the highway dispatcher test on her own.  To the contrary, Ms. Chase testified that there is no study program that enables people to get ready for the test and that applicants just have to have the skills.  Moreover, even if there were some basis to conclude that the complainant could have done more to help herself obtain alternate employment, this fact would not relieve the respondent of its obligation to provide those reasonable accommodations that it is able to offer without hardship.

Finally, while it is not entirely clear from the record whether the complainant specifically made this request of the respondent, it appears that the respondent could have accommodated the complainant's disability by permitting her to remain in a light duty assignment.  The complainant identified several assignments that she believes she could have done notwithstanding her disability, including master control, medical records, communications and civil process.  Indeed, the complainant had successfully worked in both communications and civil process for several months after sustaining her injury.  The complainant also indicated that she could have worked at the children's center, booking, or at the facility where inmates are searched. 

The commission has found that when a temporary accommodation is successful, an employer is required to consider the option of providing that accommodation on a permanent basis and has the burden of demonstrating that it would not be feasible to do so or that to do so would constitute a hardship for it.  See, Roytek v. Hutchinson Technology Inc., ERD Case No. 199903917 (LIRC Jan. 28, 2002).  A long-term extension of a temporary accommodation may be considered a reasonable accommodation depending upon the circumstances of the case.

At the hearing the respondent explained that light duty jobs are not permanent and are only provided by way of temporary accommodation for injured workers.  However, while an employer is generally permitted to reserve light duty assignments for injured workers and is not required to permanently assign a disabled employee to such position, it does not seem unreasonable that a disabled employee would be allowed to remain in a light duty position when doing so does not adversely affect the respondent's ability to provide temporary accommodations for other workers.  Here, the respondent did not establish that the complainant's assignment to light duty prevented it from providing work for other workers who needed a light duty position or otherwise created a burden for it.  In the absence of any evidence to suggest that there were other disabled workers waiting to occupy light duty positions, the commission believes that the complainant should have been allowed to remain in her light duty assignment at least until such time as she was able to find alternate employment through the Job Relocation Program.  Indeed, in a case involving the identical employer and issue, a federal court found that the respondent's refusal to allow an employee to remain in her light duty position while she sought alternate work through the Job Relocation Program could constitute a violation of the Americans with Disabilities Act.  Gibson v. Milwaukee County, 95 F. Supp. 3d 1061 (E.D. Wis. 2015).

Conclusion

The complainant clearly demonstrated that she is an individual with a disability and that she was denied an accommodation for her disability and discharged from her employment as a result.  The complainant presented an array of potential accommodations, all of which appear to be reasonable based upon the evidence in this record.  First, and preferably--as it would have allowed the complainant to continue to work as a correction officer--the respondent could have transferred her to the HOC.  The respondent could also have allowed the complainant to remain in a light duty position, if not indefinitely, then at least until such time as she secured other county employment through the Job Relocation Program.  Finally, it could have extended her ability to participate in the Job Relocation Program, particularly once she established that she had just been accepted into a DVR training program designed to improve her chances of securing alternate employment.  While it is possible that some of these proposed accommodations may have been problematic or posed a hardship for the respondent, the respondent presented no persuasive evidence to show this was the case.  The commission, therefore, concludes that probable cause was established and that the complainant should be given an opportunity to proceed to a hearing on the merits.

uploaded 2017/01/12