State of Wisconsin
Labor and Industry
Review Commission
|
|
|
|
Fair Employment Decision |
|
|
Complainant |
|
|
|
|
|
|
|
|
Respondent |
|
|
|
Dated and Mailed: |
|
ERD
Case No. CR201301969 |
January
31, 2017 |
|
EEOC
Case No. 26G201301173C |
|
|
|
|
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.
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, the State of Wisconsin Department
of Corrections (hereinafter respondent
), is a state agency that oversees
Wisconsin's prison system.
2.
The complainant, Gordon Satorius (hereinafter
complainant
), was hired by the respondent in 1984 as a correctional officer.
3.
In 2001 the complainant began working as a crisis
intervention worker at the Stanley Correctional Institution. The complainant's job duties were to provide
direct services to inmates who were experiencing crisis situations, and to provide
consultation and training to staff. The
complainant was primarily assigned to Unit 1 of the Psychological Services Unit. The complainant's job on Unit 1 was very
stressful, in that it required him to work closely with mentally ill inmates
who were in crisis.
4.
The complainant has been treated for migraine
headaches since 1993 and continued to suffer from migraines throughout his employment.
The complainant did not generally get headaches
while at work, but was prone to headaches on Fridays and Saturdays, after the
work week had ended.
5.
The
complainant worked a five day a week schedule until 2002, at which time his
supervisor offered him a schedule of four ten-hour days a week, with Fridays off. The four-day schedule worked well for the complainant and helped him
manage his migraines by giving him time to rest and recover at the end of the
week. Between 2001 and 2012, the
complainant never missed work due to his migraines.
6.
In
2006 the respondent transferred the complainant to a schedule requiring him to
work four nine-hour days and a half day
on Friday. The complainant requested to
be put back on his schedule of four ten-hour days and provided
doctor's notes explaining that he suffered from migraines and required a
schedule change. When the respondent refused
to provide the complainant with the schedule accommodation he requested, the complainant
used his vacation time to take every Friday off so that he could continue to
work only four days a week. This
occurred from the summer of 2006 until January of 2009, at which point he
returned to a four-day
schedule.
7.
In 2011 a new deputy warden, Mario Canziani, began
working at the Stanley Correctional Institute. Shortly after coming to Stanley, Deputy Warden Canziani decided to make
changes to the way in which the segregation unit was staffed.
8.
In March of 2012 the complainant was notified that
his work location was being transferred from Unit 1 to the segregation building. The complainant was also informed that his
work schedule would be changing to five eight-hour days, Monday
through Friday. These changes were to go
into effect on April 9.
9.
On March 22, 2012, the complainant submitted a disability
accommodation request form, in which he requested to remain on his four-day work week schedule due to disabling migraine headaches. The accommodation request form was accompanied
by a letter from the complainant's physician, Dr. Jacoby, who stated that the
complainant had been suffering from intermittent migraines for more than ten
years, and that he believed the headaches would increase in frequency and
severity if he were not allowed to continue having three contiguous days off
from work.
10.
The complainant's duties in the segregation unit included
performing a crisis and wellness check on any inmate with a mental health
diagnosis who was admitted into segregation. The
respondent's policies require that new inmates being checked into the segregation
unit be given a crisis and wellness screening within 24 hours, not including
weekends. The respondent could satisfy
its policy if inmates who checked in on a Friday were given their assessments
the following Monday. However, Deputy
Warden Canziani did not
consider this to be best practice, and preferred to conduct screening at the
same time the inmate was checked in. Because
the complainant was the only crisis intervention worker working at the facility
at the time, if he was not available to perform a wellness check on a given day
one of the psychologists who worked for the respondent, but who were housed in
a different building, would have to come over and do it. This process would take about half an hour.
11.
The complainant began working in the segregation
unit on April 9, 2012. The complainant's
work in the segregation unit entailed less inmate contact than his work in Unit
1 and was generally less stressful.
12.
Upon being transferred to the segregation unit, the
complainant used accrued vacation time to avoid working on Fridays while he
waited for the respondent to consider his accommodation request. Although the respondent's policy is to
provide a response to an accommodations request within 10 work days, the
complainant began working on the segregation unit before receiving a formal
response to his accommodation request.
13.
On May 3, 2012, the complainant met with Dr. Joseph
Roe, the psychologist supervisor, and Deputy Warden Canziani, to discuss his
accommodation request. Dr. Roe and Deputy
Warden Canziani told the complainant that they needed him there on Fridays, and
discussed possible alternative accommodations that could be implemented so that
he could work five days a week, including the possibility of using Family
Medical Leave Act (FMLA) leave in the event that he needed time off for his
medical condition. Dr. Roe and Deputy
Warden Canziani asked the complainant for ideas for alternative accommodations,
but the complainant insisted that the only acceptable accommodation was to
allow him to work four ten-hour days.
14.
On May 15, 2012, Nicole Hagar, the respondent's human
resources director, sent the complainant a letter which described several proposed
accommodations for his migraines including changing the lighting in his work
space, getting special equipment for his computer screen to minimize glare, a
change of office location, a sound machine to mask noise, installation of sound
absorption panels, allowing the complainant to wear sunglasses at work, implementing
a fragrance-free policy, providing air purification systems, providing FMLA leave,
and/or providing the complainant with a dark, private area to go to when
experiencing a migraine. The complainant
declined to try any of these accommodations, and continued to insist that he be
allowed to return to his former schedule.
15.
The respondent did not ask the complainant for authorization
to contact his doctor, and it made no attempt to obtain the complainant's
medical records or to speak to Dr. Jacoby about other possible
accommodations for the complainant.
16.
At some point the complainant began taking FMLA
leave on Fridays. The complainant used
accrued sick leave time to remain in pay status on the days for which he used FMLA
leave. The complainant continued to use
FMLA leave every Friday through September of 2012, at which point he began a
leave of absence pending his retirement in December of 2012.
17.
The complainant was never disciplined for taking
off every Friday, and the respondent never gave him any indication that he
could not have continued to do so indefinitely, provided he had enough leave
time to cover his absences.
18.
Other staff members were permitted to continue
working a four ten-hour day schedule. Allowing the complainant to remain on his four-day schedule was a reasonable accommodation that would have permitted
him to remain employed as a crisis intervention worker.
19.
The respondent failed to demonstrate that
accommodating the complainant's disability would have posed a hardship.
Conclusions of Law
1. The
complainant established probable cause to believe that he is an individual with
a disability, within the meaning of the Wisconsin Fair Employment Act.
2. The
complainant established probable cause to believe that the respondent
discriminated against him based on his disability, within the meaning of the
Wisconsin Fair Employment Act.
Memorandum Opinion
The complainant brought this action
under the Wisconsin Fair Employment Act (hereinafter Act
), alleging that the
respondent denied him a reasonable accommodation for his disability. This matter came before the administrative
law judge, and is now before the commission, on probable cause. The complainant's burden in a probable cause
proceeding is a lesser one than in a case on the merits. Probable cause has been defined as somewhere
between a preponderance and a suspicion.
The complainant's initial burden is to establish
that he is an individual with a disability. 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 has been treated for migraines
since 1993, and his doctor testified that they are a permanent condition. While the complainant never needed to miss
work due to his migraines, he contended that the headaches interfered with his
ability to work the five-day
a week schedule required by the respondent beginning in April of 2012. The complainant's doctor agreed with that
assessment, and the respondent did not present any medical evidence to
contradict Dr. Jacoby's medical opinion that the complainant's migraines
prevented him from working five days a week as a crisis intervention worker. Although the respondent has pointed out that the
complainant had successfully worked a five-day schedule in the past, he had not done so since 2002, and
the complainant and his doctor both agreed that his migraines became worse as
he aged. When the complainant had an
opportunity to transfer to a schedule of four ten-hour days a week in 2002, he did so, and when,
in 2006, the respondent transferred the complainant to a schedule requiring him
to work four nine-hour
days and a half day on Friday, he asked to be put back on the four-day schedule and provided
doctor's notes explaining that he suffered from migraines and required a
schedule change. When the respondent
refused to provide the complainant with the schedule accommodation he
requested, he used his vacation time to take every Friday off so that he could
continue to work only four days a week.This occurred from the summer of 2006 through early 2009, at which point
the complainant returned to a four-day schedule.
The evidence establishes that the complainant's
migraines prevented him from working a five-day a week work schedule, as required by the
respondent. The commission is satisfied
that the complainant met his burden of establishing that his migraines limited
his capacity to work and, therefore, constituted a disability within the
meaning of the Act, for which some type of accommodation was required in order
for him to do his job.
The next question to decide is whether there was
a reasonable accommodation available that the respondent refused to
provide. The respondent changed the
complainant's schedule from a four-day schedule to a five-day schedule, and by way of accommodation, the complainant
asked to continue his schedule of four ten-hour days. The
complainant's request was supported by a letter from Dr. Jacoby stating, in
part: The patient has been
able to reduce his migraine frequency and has had very minimal absenteeism
related to migraines by giving him 3 contiguous days off, including Saturday
and Sunday, so that he can make up for his disordered sleep.
The evidence indicates that a four-day schedule would have
been a reasonable accommodation for the complainant, in that it would have
allowed him to continue performing his job notwithstanding his migraines, as he
had done successfully for years.
In her decision the administrative law judge indicated
that the respondent offered the complainant several alternative accommodations
that were reasonable, which the complainant refused. First, the respondent offered to provide the
complainant with accommodations in the work place that were designed to cut
back on light, sound and scent. However,
the respondent never checked with the complainant's doctor to find out if any
of these triggers affected him, and both the complainant and his doctor agreed
that the complainant's headaches were not triggered by light, sound or scent. Although the administrative law judge held
that there is no way of knowing if these accommodations would have been
effective without trying them, the complainant and his doctor were in the best
position to know whether such accommodations would assist the complainant, and
both indicated they would not.
Another accommodation offered by the respondent
was the ability to take time off work on a flexible, as-needed basis. However, the complainant and his doctor both
agreed that the complainant needed three recovery days off of work on a regular
basis and that intermittent leave was not sufficient.
In her decision the administrative law judge stated
that because the complainant's work on the segregation unit was less stressful
than his previous duties, it is possible that he would be able to work five days
in the new position without migraines, especially if he availed himself of some
of the accommodations offered by the respondent. However, that opinion is speculative and
unsupported by any medical evidence in the record. At the hearing the complainant's doctor
indicated that the proffered accommodations would not have helped the
complainant. Dr. Jacoby was not
specifically asked whether his opinion would change if he was told the
complainant's work was now less stressful, and it cannot be presumed that this
would have been the case. Finally, it
should be emphasized that the respondent could have asked the complainant for
authorization to talk to his doctor at the time the complainant requested the
accommodation, but did not do so; the respondent never contacted Dr. Jacoby to discuss accommodations
for the complainant and instead substituted its own judgment for that of the
complainant's physician. Based on this
record, it cannot be said that the accommodations the respondent offered the
complainant were reasonable ones, as it was not shown that they would have
effectively allowed him to continue performing his job notwithstanding his
disability.
Finally, the administrative law judge found that
the complainant was granted an accommodation when the respondent allowed him to
use FMLA leave to cover absences every Friday until his retirement. However, the commission agrees with the
complainant that allowing him to take FMLA leave was not a reasonable
accommodation, since it required him to draw down his accrued sick leave as a
condition of remaining employed. The
complainant testified that taking sick leave every Friday until his planned
retirement date would have wiped out his insurance account, which he wanted to
be able to use in his retirement. Although,
as the respondent points out in its brief, an employer has the right to provide
an accommodation that is less expensive than the one the employee has
requested, that does not necessarily mean that an employer can reasonably
require an employee to use up all of his accrued sick leave (a valuable benefit
in this case) in order to keep his job, particularly when other accommodations
are available.
Having concluded that the accommodations offered
by the respondent were not reasonable accommodations, the final question to
decide is whether the respondent met its burden of establishing that allowing
the complainant to remain on his four-day schedule as he requested would have created a hardship
for it. The respondent maintained that
giving the complainant Fridays off would take time away from its licensed
psychologists who were performing other duties and would have a negative impact
on the needs of mentally ill inmates.
The commission is not persuaded that the
respondent established it would sustain a hardship by accommodating the
complainant. In the first place, it
should be noted that the complainant's request for three consecutive days off could
have been accommodated by giving him Mondays off, rather than Fridays. Although Mr. Canziani, the deputy
warden, stated that the complainant was adamant that he needed Fridays off and
that it could be no other day, neither the complainant's nor his doctor's
written statements indicate that this was the case, and at the hearing the
complainant testified that Mondays off would work, too.
Second, while the respondent indicated that
Fridays were stressful days on the segregation unit and that segregation was
where most suicides occurred, its evidence on these points was not persuasive. Dr. Roe, the supervisor of psychology,
testified that he never took any objective measure, but that crises seemed to
happen more on Fridays
and likened it to the full moon. This evidence is insufficient to establish
that Fridays were, indeed, a time of higher inmate need. Moreover, while suicide prevention is obviously
a serious matter, Dr. Roe testified that there were no suicides in the
respondent's facility between 2004 and 2013, on Friday or any other day.
Third, the evidence indicates that the
complainant used his leave time to take every Friday off for three months until
he terminated his employment, and it appears that the respondent would have
permitted him to continue to do so indefinitely. The fact that the respondent was willing to
let the complainant miss work every Friday, provided he covered the absence
with leave time, suggests that to do so did not create a hardship for it. Indeed, Nicole Hager, the human resources
director, testified that because there was a minimum of staffing on Fridays, it
was not a problem for the complainant to take vacation and that, as far as she
knows, there was acceptable coverage in segregation when the complainant was
off work.
Fourth,
the
respondent's evidence of the strain the complainant's absences had on other
staff members is not compelling. At the
hearing Dr. Frey, a psychologist, testified that when the complainant took
leave on Fridays he would come in and be the person responsible for covering
the segregation unit. Dr. Frey
indicated that, if he went to the segregation unit to handle something on a
Friday it would take him away from his office for about half an hour. While Dr. Frey testified that the respondent
does not have a sufficient number of psychologists to meet its needs, he also
emphasized that his own work load was by far not a demanding load
when
compared to community standards and expectations and agreed that it was
extremely modest,
casting doubt on the respondent's contention that it was
burdensome to ask one of the other psychologists to perform occasional wellness
checks. Tellingly, Dr. Roe, the
psychologist supervisor, testified that he did not know who covered when the
complainant was not there or if they covered for him at all.
Finally, the record also indicates that after
the complainant retired, his position was eliminated and the respondent never
again hired another crisis intervention worker. The respondent indicated that it went without coverage
in segregation for a period of time and that, as of the date of the hearing,
there were two psychologists rotating through segregation.
Based on the above, the commission is not
persuaded that accommodating the complainant by allowing him to continue working
a schedule of four ten-hour
days, with either Fridays or Mondays off, would have presented a hardship for
the respondent, and it concludes that the evidence warrants a finding of probable
cause to believe the respondent violated the statute by denying him that
accommodation.
Motion to
Amend the Complaint
In his petition for commission review the
complainant argues that the administrative law judge erred in denying his
motion to amend his complaint to include a claim of constructive discharge.[1]
The complainant contends that the
constructive discharge issue was implicit in his complaint and, further, that
allowing him to amend the complaint would not have resulted in any prejudice to
the respondent. The complainant points
out that he told the investigator that he retired earlier than planned because
the respondent would not accommodate his health condition, and that he was
seeking back pay and lost benefits. He
also contends that the content of the respondent's discovery requests indicates
it knew he was raising a constructive discharge issue. The complainant argues that it was an abuse
of discretion for the administrative law judge to deny his motion to amend, and
that the amendment would have caused no hardship for the respondent.
The commission does not find these arguments
persuasive. To begin with, nothing in
the complaint indicates that the complainant was raising the issue of
constructive discharge. On the complaint
form, the complainant checked the box for disability discrimination and stated
that the disability was migraine headaches and that the action complained of
was failure to accommodate.
In his statement
of discrimination, the complainant stated, in part: As a result to
maintain his health, Mr. Satorius was required to take Fridays off and did
so until retirement December 17, 2012.
That is the only mention of the complainant's retirement, and nothing
was said to suggest that the complainant felt he was forced to retire. Moreover, because the initial determination
only addressed the question of reasonable accommodation, the complainant should
have been well aware that the department did not construe his complaint as
encompassing a constructive discharge issue. However, the complainant did not attempt to amend his complaint, even
after the hearing notice was issued indicating that the only issue for hearing
was whether the respondent violated the law by refusing to reasonably
accommodate a disability. Instead, the
complainant waited until the day of the hearing to request to file an amended
complaint.
The administrative rules provide that a complaint may not be amended
less than 45 days before hearing unless good cause is shown for the failure to
amend the complaint prior to that time. Wis.
Admin. Code § DWD 218.03(6).[2] The commission agrees with the administrative
law judge that good cause was not shown.Where
the complainant and his attorney were repeatedly put on notice as to the issues
in the case--when the initial
determination was issued, at the prehearing conference, and when the notice of
hearing was issued--and
so were clearly aware that constructive discharge was not included, the
complainant had no good cause for failing to amend the complaint sooner. See,
Dent v. RJ Wood Industries Inc., ERD Case No. CR200903357 (LIRC March 28, 2014). The asserted lack of prejudice to the
respondent, even if established, would not alone provide the complainant with
good cause for waiting until the day of the hearing to attempt to amend his complaint.
Under all the circumstances, the commission
agrees with the administrative law judge that the complainant's request to
amend his complaint less than 45 days prior to the probable cause hearing was
properly denied.
|
cc: |
Attorney Andrea L. Olmanson |
[1] The administrative law
judge's denial of that request came in a letter dated August 7, 2015. However, because the administrative law
judge's letter contained no appeal rights, the complainant has not had an
opportunity to appeal that ruling prior to this point.
[2]
The rule further provides that
an amended complaint shall be dismissed if
it does not meet the requirements of s. DWD 218.05(1),
which include a
requirement that the complaint have been filed within the time period set forth
in the Act, if that issue is raised in writing by the respondent. See,
Wis. Admin. Code § DWD 218.03(6); Wis. Admin. Code § DWD 218.05(1)(d). Because the
commission agrees with the administrative law judge that there was no good
cause shown for filing an amended complaint less than 45 days prior to the
hearing, it has not addressed the question of whether the amended complaint
would meet timeliness requirements.