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

SUSAN M ROYTEK, Complainant


ERD Case No. 199903917, EEOC Case No. 26GA002001

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, except that it makes the following modifications:

1. The following paragraph is inserted after paragraph five of the administrative law judge's ORDER:

"The respondent shall pay to the complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $3,082. A check in that amount shall be made payable jointly to the complainant and Lisa A. Wiebusch and delivered to Ms. Wiebusch."

2. Paragraph six of the administrative law judge's ORDER is deleted and the following paragraph 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 Kendra DePrey, 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)."

3. The administrative law judge's ORDER is renumbered accordingly.


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

Dated and mailed January 28, 2002
roytesu . rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



In its petition for commission review the respondent argues that the complainant has not proven she has a disability capable of protection. The respondent maintains that the complainant has not shown that an inability to work more than eight hours a day is a real or perceived impairment. It further contends that the hours limitation does not make achievement unusually difficult and that, although it prevented the complainant from performing her job for the respondent, the "limits the ability to work" portion of the Wisconsin Fair Employment Act (hereinafter "WFEA") should be read as limiting the ability to work in general rather than limiting the ability to perform a specific job. These arguments fail. In the first place, the impairment in question in this case is the complainant's back condition, not her inability to work more than eight hours a day. The latter is a job restriction necessitated by the impairment, not the impairment itself. While the commission agrees with the respondent that the complainant did not demonstrate that her impairment made achievement unusually difficult for her, the commission is persuaded that it limited the complainant's capacity to work. The commission rejects the respondent's suggestion that it ignore its own precedent and that of the Wisconsin Supreme Court and interpret the WFEA as requiring the complainant to show she has an impairment that limits her capacity to perform a wide variety of jobs. When adhering to the longstanding interpretation of the WFEA by the commission and the courts that a limited capacity to work refers to the particular job in question, it seems clear that the complainant's physical impairment did limit her capacity to work and, further, that the respondent perceived this to be the case. The commission is therefore satisfied that the complainant has met her burden of establishing that she is an individual with a disability, within the meaning of the WFEA.

The respondent argues, in the alternative, that it should not have been required to accommodate the complainant's restrictions and that to do so would have imposed an undue hardship on it. The respondent makes several arguments in support of this assertion. First, the respondent maintains that this case is analogous to the commission's decision in Staats v. County of Sawyer (LIRC, October 27, 1997), which held that an employer need not accommodate an employee with respect to limiting hours of work. However, the question of whether a particular accommodation is reasonable is resolved on a case-by-case basis, and the commission's conclusion in Staats, as in most cases addressing the concept of reasonable accommodation, is limited to the facts of that case. The complainant in Staats was the county personnel director, a job which was inherently stressful and which required him to work more than 40 hours a week. The commission found that the respondent did not refuse to provide a reasonable accommodation for the complainant's disability, which required him to limit his stress level and to work no more than a 40-hour week, where the job could not be feasibly modified to accomplish those goals. Under those circumstances, the commission concluded there was no reasonable accommodation available that would enable the complainant to perform the job of personnel director despite his disability. The instant case, however, presents a fact situation quite different than that in Staats, as there was a reasonable accommodation that could have been provided for the complainant which would have enabled her to perform her job notwithstanding her disability, had the respondent been willing to provide it.

The respondent also draws the commission's attention to two other commission decisions which it contends are analogous to the case at hand and which it states dictate that it is not discrimination to apply uniform attendance standards to disabled employees. Gordon v. Good Samaritan Medical Center (LIRC, April 26, 1988), and Gee v. ASAA (LIRC, January 15, 1992). However, this case does not involve a failure to meet uniform standards of attendance, but centers on the question of whether the complainant should have been accommodated by being provided an alternate work schedule. A discussion of whether employers should be required to accept lesser standards of attendance for individuals with disabilities is not relevant to this matter.

Next, the respondent cites to a number of Americans with Disabilities Act (hereinafter "ADA") cases which hold that the ADA does not require an employer to create a part-time position where none previously existed or to alter the nature of a position. However, the instant case does not involve an interpretation of the ADA, but of the WFEA, which has been broadly construed so as not to rule out any particular type of accommodation as a matter of law. See, McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 2d 830 (Ct. App. 1988), Gartner v. Hilldale, Inc. (LIRC, May 12, 1992). To the contrary, if an accommodation is reasonable and can be provided by the employer without creating a hardship for its business, the WFEA contemplates that it do so.

Finally, addressing the question of whether accommodating the complainant would have resulted in a hardship to it, the respondent argues that the administrative law judge should not have been swayed by the fact that the asserted production declines, morale problems, and profit reduction had not yet evidenced themselves. The respondent contends that the fact it did not document any problems during its temporary accommodation of the complainant does not mean there were none and that it would have been "ridiculous" for it to have done any contemporaneous analysis of overall production levels or profitability related to the complainant's shortened shift, given that it was always its intention to return her to a twelve-hour shift or terminate her employment. The respondent further maintains that, regarding morale problems, it makes sense that fellow employees would be willing to help out the complainant to a certain extent, but problems would surface when they realized she was going to be treated differently, at which point they might start asking for shift changes of their own. The respondent's arguments fail. The hypothetical difficulties associated with permanent part-time status for the complainant are simply too speculative to meet the respondent's burden of proof in this matter. The respondent had ten months to determine that the complainant's shorter work shift caused production or profit losses, but failed to do so. Its contention that it would have been ridiculous to document production problems associated with the complainant's part-time status only supports a conclusion that the respondent had no interest in accommodating the complainant on a permanent basis, whether or not it was feasible to do so. Moreover, while the respondent suggests that there were undocumented problems associated with the complainant's part-time status, at the hearing its human resource generalist specifically testified that the respondent had no problem accommodating the complainant's eight-hour workday from January through August of 1999. With respect to the issue of employee morale, there is nothing in the record to suggest that any other worker complained during the ten-month period the respondent accommodated the complainant, nor that anyone else requested a shorter work day. Indeed, because the record indicates that the twelve-hour shift was the result of employee preferences, there is no reason to believe that permitting the complainant to work an eight-hour day would result in widespread requests for shift changes.

Finally, the respondent contends that it should not be punished for allowing a temporary accommodation instead of terminating the complainant as soon as it was evident she could not work her full shift. However, while the commission certainly does not wish to discourage employers from offering temporary accommodations, the fact that an employer has made a temporary accommodation does not shield it from liability when its willingness to provide a reasonable accommodation ceases. Here, the respondent's temporary accommodation of the complainant was successful, and successful for an extended period of time, and there is no evidence to establish that the respondent would have suffered a hardship had it continued. Given these circumstances, the commission agrees with the administrative law judge that the respondent violated the WFEA by refusing to further accommodate the complainant's disability.

Attorney Fees

The complainant has requested $6,165 in attorney fees associated with her attorneys' work on this matter subsequent to the filing of the respondent's petition for commission review. However, after having reviewed the briefs submitted in this matter, the commission does not believe that the complainant's responsive brief reflects over $6000 worth of work by two attorneys. Taking into account the fact that the complainant's attorneys had to read the respondent's brief, review the transcript, and prepare a cover letter and amended fee request for the commission, the commission nonetheless considers that the amount requested is excessive, and it concludes that an award of attorney fees of half the total amount requested, $3,082, better reflects the amount of time reasonably expended on this matter. The administrative law judge's order has, therefore, been modified to include an additional $3,082 in attorney fees associated with responding to the petition for review.

Attorney Lisa A. Wiebusch
Attorney Carol S. Dittmar

Appealed to Circuit Court. Affirmed November 18, 2002.  Appealed to the Court of Appeals.  Affirmed September 18, 2003, unpublished per curiam decision. Petition for Supreme Court review granted, January 23, 2004. Affirmed June 30, 2004, sub nom. Hutchinson Technology Inc. v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343.

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uploaded 2002/01/29