Wis.LIRC ER Decision: Lindner - February 20, 2001 - Disability discrimination - employer did not fail to accommodate complainant, a custodian whose physician imposed a number of physical restrictions due to back condition, by taking him off active employment and not allowing him to try to do the night custodian assignment, where the physician's restrictions indicated complainant could not have done the job

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

DAVID D. LINDNER, Complainant

SCHOOL DISTRICT OF CHETEK, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199704668, EEOC Case No. 260980155

An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed February 20, 2001
lindnda.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On August 15, 1997, the School District of Chetek notified the complainant, a night custodian, that he was being terminated from active employment and placed on a preferential hiring list. The complainant worked thereafter until August 21, 1997, his last day of work for the school district. The complainant, who underwent back surgery in October 1995, had been off work from October 1995 until June 1996, reinjured his back in July 1996, and was off again until early July 1997. During this period the school district created part-time work for the complainant when he returned in June 1996, held his position open for six months after his leave under the Family and Medical Leave Act had expired, paid the employee-required premium payments on his health insurance the school district maintained during his leaves, and forgave some of his indebtedness for the premium payments on his health insurance. When the complainant asked to be returned to work during the summer of 1997, the school district agreed to his request to be placed in a work hardening program while performing summertime custodial duties.

As of July 2, 1997, the complainant had the following permanent lifting/carrying restrictions: No lifting/carrying of over 35 pounds and occasional lifting/carrying of 21-35 pounds, but frequent lifting/carrying permitted up to 20 pounds. In addition, the complainant had restrictions to occasional performance of activities that required him to bend, squat/kneel, twist/turn, climb, reach above shoulder level, reach below knee level, stand or walk, and sit. (See Comp. Exh. 4).

Near the end of the performance of the summertime custodial duties, the school district concluded, based upon the complainant's work restrictions, that he would be unable to perform the essential tasks performed by a night custodian. (1 ) During the school year, the school district employs three night custodians. One works on the high school side, one works on the middle school side, and one takes care of the gyms, locker rooms and a few rooms on the high school side. Except for the cleaning of two study halls, night custodians very seldom work together on tasks. The custodian assigned to the gyms and locker rooms has a more physically demanding job than the other two custodians, apparently because of responsibilities involving the moving of bleachers (for which help is provided) and plowing snow in the schoolyard.

The most essential task of a night custodian is cleaning the rooms. This includes sweeping, straightening desks, cleaning the blackboards, dumping the garbage and closing the windows. Custodians spend most of the night on their feet. They are allowed a 15-minute break during the first four hours of work, lunch, and then another 15-minute break during the second four hours of work. Each custodian is assigned approximately 15 rooms. There are about 25 to 30 desks in each room (apparently with the exception of the gyms and locker rooms). The desks weigh about 35 pounds and have to be moved every night to perform sweeping. Sweeping involves some bending. The number of tables in each room varies, with some weighing 60 to 70 lbs. They also must be moved to sweep. Blackboards in the rooms also must be cleaned and requires reaching above the shoulders. Sixteen-inch erasers were used to reduce overhead strain. Twisting is involved in the performance of mopping duties. Mopping duties increase during the winter months. Custodians must also keep the snow shoveled from the front entrance when there are sporting events.

The complainant appears to essentially make the following arguments in support of his claim that the respondent discriminated against him on the basis of his disability: 1) That he could do the work of a night custodian because during the summer of 1997 while participating in the work hardening program he had performed work that was the same or much harder than that performed during the school year but he was never even given a chance to perform the night custodian work; and 2) that an agreement was made during the summer of 1997 that there would be a meeting held to discuss how he was doing to see if he could perform the work, but such meeting never took place.

The record does disclose that there is a difference between summertime and school year custodial tasks. There was more lifting in the summertime and different work such as painting and repair work to do, although a lot of the work still involved cleaning. However, during the summertime all seven of the respondent's custodians worked during the first shift, and there was always three or four custodians around to provide assistance when a room was cleaned. During the school year night custodians very seldom worked on tasks together. Other than cleaning two study halls they are pretty much on their own. Further, during the school year the school district did not have the same variety of tasks available to perform that it did during the summertime, and therefore it did not have the same flexibility with respect to providing work assignments.

While the complainant complains that he was never given a chance to perform the night custodial duties, and thus was not accommodated, it was primarily the work restrictions that had been placed on the complainant by his doctor that caused the respondent to conclude he could not perform the essential tasks of a night custodian. As former head custodian James Thompson testified, he indicated in a department questionnaire that he "thought Dave (Lindner) could do the job but his doctor's restrictions kept him from doing it.) (Underlining emphasis added).

Citing a "To Whom It May Concern" letter from the complainant's doctor dated August 21, 1997, but not received by the school district until September 29, 1997, the complainant also argues that the school district "obviously terminated David before they received the doctors final summarization stating that he should be capable of working on a full time basis." The complainant has asserted that this had been requested by school superintendent, Al Brown, because Brown wanted a more defined description of all restrictions and limitations pertaining to his job tasks. Further, the complainant notes that nowhere does the letter state anything about limitation of walking or standing. These arguments fail. First, the fact that this letter is addressed "To Whom It May Concern," the fact that when Brown had previously asked the doctor about the complainant's work capabilities the complainant's doctor had responded by letter specifically addressed to Brown, plus Brown's testimony that he thought this was information the complainant was seeking to clarify what his limitations were, all indicate that the school district had not requested any further information regarding the complainant's work restrictions when it made the decision to terminate the complainant from active employment. Second, the work restrictions contained in this letter were basically the same as those stated to exist by the doctor as of July 2, 1997: "...occasional lifting limited to 35 pounds and frequent lifting limited to 20 pounds or less. He should limit bending, squatting, kneeling, twisting, turning, climbing, reaching above shoulder level, and reaching below knee level to occasional frequency." (Resp. Exh. 3) Why there is no specific mention of restrictions with respect to standing or walking and sitting is subject to more than one interpretation. In any event, however, based upon the tasks of a night custodian, the remaining restrictions themselves indicate that the complainant was not capable of performing the essential functions of the night custodian position.

Finally, while Al Brown, did state in a letter to the complainant dated June 11, 1997 that "I would also request at the end of this six week period (work hardening period) we meet to discuss your health status and its relationship to your work," Brown's failure to meet and discuss the complainant's feelings about whether or not he could perform the work would have served no purpose considering the restrictions his doctor had placed on him and the school district's lack of flexibility in assigning work duties to night custodians.

Based upon all of the foregoing, the commission concludes that the respondent did not unreasonably refuse to accommodate the complainant's disability, in violation of the Act, when it terminated him from active employment and placed him on a preferential hiring list.

cc: Victoria L. Seltun

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Footnotes:

(1)( Back ) During the day, the head custodian/supervisor, plus two part-time individuals handled the custodial duties. In addition to working fewer hours, the part-time positions were non-union, earned less pay and received no benefits. The complainant was a member of a union.

uploaded 2001/02/20