ALAN GEE, Complainant

ASAA TECHNOLOGY, INC., Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 25, 1991. Complainant filed a timely petition for review by the Commission and both parties filed written arguments.

Based upon a review of the record in its entirety, and after consultation with the Administrative Law Judge concerning her impressions as to the credibility of witnesses, the Commission makes the following:

1. Alan Gee began working for ASAA Technology ("ASAA") as a part-time employe on October 8, 1986. ASAA made Mr. Gee a full-time employe on March 9, 1987. Mr. Gee was employed as a Production Helper (also known as a Crew Member). On December 21, 1987, Mr. Gee was given a written warning for excessive absenteeism. He had been absent 13 times in the preceding eights months.

2. On February 1, 1988, ASAA instituted a no-fault attendance program. The attendance program contained a point system, categories of excused and unexcused absences, a progressive discipline procedure, and a mechanism for the subtraction of points for one calendar month's perfect attendance. The no-fault attendance program provided that no points would be assessed for excused absences, which included approved absences for such reasons as hospitalization, as well as approved leaves of absence. The no-fault attendance program provided that an accumulation of three points would place an employe on the progressive disciplinary track as follows:

Three points - Oral Warning
Six points - Written Warning
Nine points - Suspension for three days
Twelve points - Suspension for five days/discharge

The program provided that any employe who accumulated a total of 12 points would automatically be placed on a five-day suspension with a conference scheduled to discuss the employe's past attendance record and reasons for the absences to determine whether the employe would be discharged or whether there would be a readjustment of the employe's point total down to 10.

3. As a matter of practical application of the attendance program, discharge was not inevitable when an employe reached 12 points. On at least four and perhaps as many as ten occasions following adoption of the attendance program, employes who had reached 12 points were "readjusted" back down to 10 points after the conference.

4. On August 13, 1988, Mr. Gee was in a motorcycle accident away from work. He was off work until November 14, 1988. Mr. Gee injured his right arm and wrist. He had an operation prior to returning to work for ASAA. When he returned to work, Mr. Gee's doctor indicated that he should be restricted to light duty work.

5. ASAA provided Mr. Gee with work within his medical restrictions. He was placed on "spin-on" operations in his regular department. This was an operation that was normally rotated among the employes in the department. The department in which Mr. Gee worked made inner door panels for the front door of GM mini-vans. ASAA did not consider it a hardship to keep Mr. Gee on light duty work doing spin-ons.

6. Sometime on or about April 25, 1989, Mr. Gee was placed in an assembly job that exceeded his doctor's restrictions. Mr. Gee immediately complained about this to his supervisor, Charlene E. Perl. Ms. Perl advised him to speak to Tom Nohl, the Human Resources Manager. A short time later, Charlie Tiede, the Production Manager, apologized to Mr. Gee for putting him on assembly work and returned him to spin-on work. This was the only time that ASAA failed to assign Mr. Gee to work within his medical restrictions.

7. Mr. Gee was scheduled to have a second operation on his wrist on Monday, July 24, 1989. On Friday, July 21, 1989, he was granted a medical leave of absence for the day of the surgery on July 24, 1989, and for a recovery period. An employe would not be assessed points under the no-fault attendance program for being on an approved leave of absence due to hospitalization.

8. Prior to July 24, 1989, Mr. Gee had been informed that he should not eat breakfast on that day so that he could safely be anesthetized. Gee had been similarly informed prior to the first surgery on his wrist. Nevertheless, he ate breakfast on July 24, 1989 before going to the hospital. This was discovered in routine questioning of Gee after he checked into the hospital that morning. Mr. Gee's surgery was canceled for this reason and rescheduled to July 26, 1989.

9. After learning that his surgery was canceled, Gee called in to work at approximately 10:30 to 11:00 a.m. He spoke to Ms. Perl, and he told her that his surgery had been canceled. Although she asked if he was coming to work on the following day and he said that he would, neither of them said anything or asked anything which clearly communicated anything about Gee working that day. Gee's shift that day was to end at 2:30 p.m. Gee did not go in to work that day.

10. At approximately 8:00 a.m. on the morning of July 25, 1989,after Mr. Gee had appeared at work, Ms. Perl first informed Mr. Nohl that Mr. Gee's surgery which had been scheduled for the previous day had been canceled and that they did not know the reason why it had been canceled. Nohl concluded from what Perl told him that Gee had understood when he talked to Perl on the 24th that there was work available for him if he chose to come in that day. Nohl concluded that Gee should be assessed a point under the no-fault attendance program for being absent on July 24, 1989 because he was able to work but did not report to work. Attendance records had shown Gee's absence on July 24, 1989 as "H" for "hospitalized," which was an excused absence under Respondent's attendance policy, based on his planned absence for surgery. Ms. Perl subsequently changed the company's attendance records to reflect that Mr. Gee's absence on July 24, 1989 was not an excused absence.

11. Gee's handicap was not a factor in Nohl's decision to treat Gee's absence on July 24, 1989 as unexcused rather than excused.

12. Following Nohl's decision to assess Gee a point for an unexcused absence on July 24, 1989, Gee was informed that he was suspended for five days for accumulating 12 points under the company's no-fault attendance program.

13. Mr. Gee had surgery on his wrist on July 26, 1988.

14. On July 31, 1989, a conference was scheduled for Gee with Nohl, Perl, and Perl's supervisor, Tom DeBruine, the manufacturing superintendent. The purpose of the meeting was to review Mr. Gee's past attendance record and the reasons for his absences in order to determine whether he would be discharged or whether there would be a readjustment of his point total, in accordance with the progressive discipline procedure set forth in the no-fault attendance program. Mr. Gee appeared at the meeting wearing a sling on his arm. Mr. Nohl inquired about Mr. Gee's surgery. Mr. Gee indicated that he would need to have another operation in the future. Mr. Nohl indicated that he was concerned about future attendance problems Mr. Gee might have. He said that he had made up his mind, but that he would discuss the matter with other members of management present at the meeting.

15. Mr. Gee had 16 separate absences or incidents of tardiness between January 23, 1989 and July 24, 1989. He had received an oral warning on or about January 26, 1989, when he accumulated three points. He had received a written warning on or about February 20, 1989, when he had accumulated six and one-half points. He had received a three-day suspension on or about May 10, 1989, when he had accumulated ten points. Mr. Gee regained a point when he worked 30 consecutive days without an absence. He was assessed one-half of a point for being tardy on July 6, 1989 (thus bringing his total points to nine and one-half). He was assessed one point for being absent on July 17, 1989 (thus bringing his points to ten and one-half). He was assessed one-half of a point for leaving early on July 20, 1989 (thus bringing his points to 11). He was assessed the final, 12th point, for being absent on July 24, 1989.

16. Mr. Nohl, with input from Perl and DeBruine, decided that Mr. Gee's points should not be readjusted downward to ten points in lieu of discharge because he believed that Mr. Gee was likely to miss work again in the future. He made this determination based in part upon Mr. Gee's prior attendance record. Mr. Gee had been absent or tardy for personal reasons as well as for medical reasons.

17. ASAA informed Mr. Gee that his employment was terminated on August 2, 1989.

18. ASAA has discharged other employes for accumulating 12 points under the no-fault attendance program.

19. Nohl, Perl, and DeBruine all believed that Gee was likely to have unexcused absences again in the future because of his handicap. They also believed that he was likely to have unexcused absences again in the future for personal reasons unrelated to his handicap. Both of these beliefs were determining factors in the decision not to readjust Gee's points from 12 down to ten. However, the significance of the belief by Nohl, Perl and DeBruine that Gee would be likely to have unexcused absences in the future as a result of personal reasons unrelated to his handicap was such that it would have led to the same decision, even if they had not considered the likelihood of his having absences caused by his handicap.

CONCLUSIONS OF LAW

1. ASAA Technology, Inc. is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Complainant Allan Gee is handicapped within the meaning of the Wisconsin Fair Employment Act.

3. Respondent ASAA Technology, Inc. did not refuse to reasonably accommodate the Complainant's handicap within the meaning of sec. 111. 34 (1) (b) , Stats., by briefly placing him on a job that exceeded his physician's restrictions on April 25, 1989.

4. Respondent ASAA Technology, Inc. did not discriminate against Complainant Allan Gee because of handicap, in violation of the Wisconsin Fair Employment Act, with respect to its decision to assess him a point for an unexcused absence on July 24, 1989.

5. Respondent ASAA Technology, Inc. discriminated against Complainant Allan Gee because of handicap, within the meaning of the Wisconsin Fair Employment Act, when it considered his handicap as a determining factor in its decision not to readjust his points under its attendance policy from 12 down to 10.

6. A preponderance of the evidence establishes that Respondent ASAA Technology, Inc. would have decided not to readjust Complainant Alan Gee's points under its attendance program from 12 down to 10 even if it had not considered his handicap as a determining factor in making that decision.

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made, the Commission now makes the following:

ORDER

1. That the complaint, insofar as it alleges that Respondent refused to reasonably accommodate Complainant's handicap and that Respondent discriminated against Complainant because of handicap. in deciding to assess him a point for an unexcused absence on July 24, 1989, is dismissed.

2. That Respondent pay the sum of One thousand two hundred fifty-one and 78/100s dollars ($1,251.78) as and for attorney's fees and costs in this matter. This sum shall be paid by way of check made payable jointly to Complainant and his attorney and delivered to his attorney.

3. That Respondent shall within 30 days of the expiration of time within which an appeal may be taken herein, submit a compliance report detailing the specific action taken to comply with the Commission's Order. The compliance report shall be directed to the attendance of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.

Dated and mailed January 15, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

Respondent's argument that Gee was not entitled to protection under the Wisconsin Fair Employment Act's prohibition on handicap discrimination is without merit. Respondent's argument, that "while Gee's wrist might have restricted his ability to perform certain types of work, [it] did not limit his capacity to work," is contradicted by the testimony of Respondent's own witness, Nohl. He admitted that when Gee told him that he would have a 40% disability to his wrist, Nohl saw it as some type of limitation for the future. (T 42) In this as well as a number of other statements at hearing, Respondent's witnesses made it clear that they perceived Gee as having an impairment which would limit his capacity to work. He was thus a "handicapped individual" within the meaning of sec. 111.32 (8) (c), Stats.

The Commission agrees with the evident conclusion of the ALJ that the assignment of Gee to a position beyond his medical restrictions for no more than a few hours on April 25, 1989 simply did not rise to the level of a violation of the requirement of reasonable accommodation of handicaps found in sec. 111.34 (1) (b), Stats. Neither does the Commission see this incident as probative of a bias against Gee because of his handicap. It appears to have been no more than a transient error in the Respondent's clear general practice of accommodating Gee by assigning him to duties within his restrictions.

The Commission also agreed with the evident conclusion of the ALJ, that there was no discriminatory motivation in Respondent's decision to assess Gee a point for an unexcused absence on July 24, 1989. While Perl did not instruct Gee to come in to work when she spoke to him, neither did she advise him not to. The question of whether Gee would come in for the balance of his shift appears to have been avoided by both Gee and Perl in their conversation. The point is, however, that Nohl was advised of a situation in which, despite the earlier surgery plans which would have kept him off work, Gee suddenly became able to come in to work, yet chose not to. Nohl could well have concluded that in those circumstances Gee's absence from work should be considered unexcused, because that absence ultimately resulted from Gee's decision not to come in for the rest of his shift. Even without the knowledge that the cancellation of surgery was also Gee's fault (Nohl acquired this information only after he had initially decided to assess a point for unexcused absence), what Nohl knew is such that there is no persuasive reason to conclude that he was motivated by bias against Gee because of handicap in assigning him the unexcused absence.

However, with respect to the matter of Nohl's separate and subsequent decision not to "readjust" Gee's points down from 12 to ten, the Commission cannot agree with the ALJ's conclusion that there was no handicap discrimination. The ALJ indicated, in her consultation with the Commission, that she did not credit Gee's testimony that Nohl told him, "It is not your attendance record we are worried about, because before the accident your attendance was perfect -- it's your wrist and your future performance with this company." The Commission accepts this credibility-based assessment. Additionally, the ALJ indicated that she believed that Respondent was genuinely concerned that Gee's tendency to have unexcused absences for purely personal reasons unconnected with his handicap, which had resulted in some of the absences which brought him up to the 12-point level, would continue even if his points were "readjusted" down from 12 to 10. The Commission accepts and agrees with this assessment as well. Notwithstanding this, there is evidence in the record of the presence of an additional, impermissible, motivation in the decision-making process, which cannot be disregarded on a credibility-weighing basis, because it is in the form of statements made at hearing.

There is ample evidence that, at the time of the decision on the readjustment of points, Nohl, Perl, and DeBruine all considered and were affected in their decision by the assumption that Gee's wrist problems would be likely to cause him to miss work in the future in circumstances that would lead to unexcused absences. Nohl testified that he considered Gee's wrist problems as likely to cause him to miss work in the future (T 44), that he asked Gee about his surgery and the effect it would have in order to find out if he would be at work thereafter on a regular basis (T 149), and that that was why they questioned Gee about future problems (T 142) . Perl testified that there was discussion of the fact that Gee would possibly miss more work because of his injuries. (T 196) In explaining his decision, DeBruine testified that he believed that the wrist problems could potentially create a situation for more absences in the future. (T 206-207)

Most significantly, there were direct admissions by Nohl that this concern for future absences caused by the handicap was a factor in the decision. Thus, Nohl testified that Gee's wrist problems were part of the decision-making, and that the perceived likelihood that his wrist problems would cause him to miss work in the future was also part of the decision-making. (T 44) Nohl also testified:

"Q The bottom line, to some extent, I guess, was that you and the others were of the opinion that he would continue to have some absence problems?

A Yes.

Q And that those at least in part would be due to the
physical problems he was having with his wrist?

A That was part of the decision, yes." (T 159)

Respondent argues, citing Gordon v. Good Samaritan Medical Center (LIRC, April 26, 1988), that it is not discrimination to apply minimum uniform attendance requirements to persons whose handicaps may cause them to miss work. This is true, but Respondent's argument confuses acting on the basis of what has happened with acting on the basis of what may happen in the future. If a handicap has caused an employe to fall short of a uniformly-applied policy of minimum attendance standards, an employer may apply those standards. Gordon, supra. It is quite another matter, however, for an employer to assume that an employe's handicap will cause them to fail to meet certain attendance standards in the future, and to "preemptively" terminate the employe on that basis. An employer that does this must be prepared to shoulder the burden of proving to a reasonable probability, that the employe would in the future be unable to efficiently (i.e., to minimum attendance standards) perform his or her job. Warras v. Woodland Health Center (LIRC, March 14, 1986). Mere speculation that this could happen will not suffice to meet that burden.

In this case, this employer's attendance policy does not provide for automatic termination at 12 points. If it did, there would have been no question that Gee could have been terminated. However, the employer's policy formally institutionalized a process by which a decision would be made at the 12-point level on whether to discharge or "readjust." The decision was not a foregone conclusion; at least four cases had resulted in "readjustments" in the brief period since the adoption of the policy. In the case of Mr. Gee, it is disclosed by the statements of Respondent's own witnesses at hearing that it made the decision not to "readjust" his points based in part on a supposition that his handicap would cause him to have unexcused absences in the future. Thus, the Commission concludes that the decision to terminate Gee was made in part because of his handicap.

Although the decision was made in part because of an impermissible factor, this does not necessarily establish a right to a complete remedy on Gee's part.

The Wisconsin Supreme Court has specifically declined to rule on the question of whether the "in part" test should be applied to cases arising under anti-discrimination laws, such that an employer would be liable if only one motivating factor for an employment practice was impermissible. Federated Electric v. Kessler, 131 Wis. 2d 189, 192-93, 388 N.W.2d 553 (1986). However, in cases arising under municipal and state employment relations law, the supreme court has adopted the "in part" test with respect to discrimination based on anti-union animus. Muskego-Norway v. W. E. R. B., 35 Wis. 2d 540, 562, 151 N.W. 2d 617 (1967); Employment Relations Dept. v. W.E.R.C., 122 Wis. 2d 132, 142-44, 361 N.W.2d 660 (1985). In deciding cases under the Wisconsin Fair Employment Act, the Commission and reviewing courts have long relied on the Muskego-Norway "in part" test in determining an employer's liability. Maline v. Wisconsin Bell (LIRC, October 30, 1989), Jones v. DyDee Wash (LIRC, November 4, 1988), Lohse v. Western Express (LIRC, February 4, 1986), Lyckberg v. First Realty Group (LIRC, September 25, 1985), Pokrass v. LIRC (Applied Power) (Waukesha County Circuit Court, August 20, 1981), Wisconsin Dept. of Agriculture v. LIRC (Anderson) (Dane County Circuit Court, May 25, 1978). Under the "in part" test, an employer violates the law by making an employment decision which is based in part on an impermissible consideration, even if there are other, legitimate, bases for the decision.

Finding that the employer has violated the Act by making the decision, however, is not the end of the inquiry. There is the question of remedy to consider. In Employment Relations Dept. v. W.E.R.C., the court held that in a "dual motive case" in which the "in part" test is applied, evidence that legitimate reasons contributed to the employer's decision can be considered by the agency in fashioning the appropriate remedy.

Where an employe proves that an employer has violated the Act by basing an employment decision at least in part on an impermissible motivation, it is appropriate at a minimum to give the employe a formal finding to that effect, and to order payment of such reasonable attorney's fees to complainant as are appropriate in the case. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984). It may also be appropriate to provide further relief. However, if in such a case it is demonstrated by a preponderance of the evidence that the same employment action would have been decided on by the employer based on its legitimate motivating factors even in the absence of the impermissible motivating factor, no further remedy is appropriate.

In this case, after consulting with the ALJ, the Commission is satisfied that the employer's concerns about the Complainant's non-handicap-related absenteeism would have led it to decide not to "readjust" his points from 12 down to 10, even if it had not given any consideration to the potential for further absences arising from the handicap. A preponderance of the evidence thus demonstrates that the same employment action would have been taken by the employer even in the absence of the impermissible motivating factor which the Commission found to have been a part in the decision-making process. Therefore, the only remedy which is appropriate is an order for payment of such attorney's fees as are reasonable considering Complainant's partial success in establishing that the decision to terminate him was motivated in part by an impermissible factor.

Complainant filed a petition seeking $3,045 in attorney's fees (40.6 hours at $75 per hour) and $710 in costs. The petition for fees does not appear to reflect any proposed reduction for partial success, and it was not accompanied by any statement of position or argument on the question of whether a reduction would be appropriate.

Respondent filed a response indicating that it did not object to either the proposed hourly rate or the number of hours claimed. Respondent did argue that a significant reduction in fees is appropriate in view of Complainant's failure to prevail on the most significant aspects of his complaint. Respondent sought a 95% reduction, resulting in an allowance of only 5% of the amount sought, i.e., $152.25 in attorney's fees and $35.52 in costs, for a total of $187.77. Respondent then supplemented its response with an argument that under Farrar v. Hobby, Case No. 91-990 (U.S. S.Ct. Dec. 14, 1992), 60 FEP Cases 633, Complainant would not be entitled to any award of fees and costs.

Complainant lost outright on some claims (failure to accommodate, discrimination in the decision to assess a point for absence in the incident in question). On the one issue as to which he proved discrimination (the decision to discharge him instead of readjusting his points) , the same result would have occurred in any event. Clearly, Complainant should not be awarded his full attorney's fees. His success was quite limited. He obtained no material benefit or remedy.

However, it is important not to deprecate the seriousness of employment discrimination by downplaying the significance of what did occur in this case. The employer made a decision to discharge the employe because it assumed that his handicap would cause his performance to be unsatisfactory in the future. Such assumptions about a person's capabilities are precisely what the prohibition on handicap discrimination is intended to prevent. There is social utility in the result here, since it serves to inform the employer that, in its discretionary decisions on whether to readjust the points of chronically absent employes under its attendance policy, it must avoid making decisions on the basis of assumptions about what problems a handicap will cause. The decision here, even if it finds no wrong to correct in this case, may nevertheless serve to head off potential wrongs in other cases. Individuals bringing actions under the Wisconsin Fair Employment Act can be seen as doing so as "private attorney generals," enforcing the public's right under the statute and implementing a public policy that the Legislature considered to be of major importance. Watkins v. LIRC, 117 Wis. 2d 753, 764, 345 N.W.2d 482 (1984). An award of attorney's fees can be considered justified to promote this purpose.

In Watkins, no remedy was due complainant because there had been no pay differential between her position and the position she sought promotion to, and because she had received the position she sought before the lengthy proceedings became final. "What Watkins essentially received was a decision confirming that she had been a victim of unlawful racial discrimination, and an order to her employer not to do it again." Watkins, p. 756. However, attorney's fees were still awarded, at least in part because of the view of the majority of the court that, where the litigant served the purpose noted above of vindicating the public interest in disclosing and deterring employment discrimination, it would be contrary to the purposes of the Act to allow the person to end up in an economically worse position than when they had started by being saddled with a large attorney bill.

In other partial success cases, the Commission has sometimes reduced the fee awards. The amounts have varied. In Behm v. Haase (LIRC, October 21, 1991), a case in which the Commission found a mixed motive but concluded that the prohibited motive "was not a significant factor," there was a reduction in fees, although the amount of the reduction is not disclosed in the decision. In Jones v. Dy-Dee Wash (LIRC, November 4, 1988), a case similar to this one in that it involved the conclusion that there was a discriminatory motive but that the same outcome would have occurred, the fee request was cut by two-thirds. In Hoell v. Narada Productions (LIRC, December 18, 1992), also similar to this one in that it involved a conclusion that there was a discriminatory motive but that there would have been a discharge in any event, the full amount of fees sought was awarded.

The Commission therefore determines to cut the fee request by two-thirds in this case. This is a significant reduction; there have been no cases in which the Commission has made any larger reduction to account for "partial success." Allowing some fee award, albeit only one-third, is consistent with the teaching of the supreme court in Watkins that, entirely apart from the question of benefit to the particular complainant, there is social utility in publicly identifying cases in which employers have allowed prohibited considerations to intrude into employment decisions.

The Commission has reviewed the Farrar case. The holding of that case is as Respondent represents it, but it does not arise under Title VII of the Civil Rights Act of 1964, but rather under 42 U.S.C. § 1988, the Civil Rights Attorneys Fee Award Act of 1976.

This fact is relevant, given a holding by the court of appeals in Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (App. 1991). In that case, the respondent argued against an award of attorney's fees in an action arising under the Wisconsin Fair Employment Act based on Texas State Teachers Assn. v. Garland Independent School District, 489 U.S. 782 (1989), an earlier decision by the U.S. Supreme Court interpreting the Civil Rights Attorneys Fees Award Act of 1976. Specifically, the respondent cited the holding of the Supreme Court in Garland that a prevailing party for the purposes of attorney's fees is one whose success works a "material alteration of the legal relationship of the parties." Farrar v. Hobby basically follows and is largely based upon the Supreme Court's distillation of principles governing awards of attorney's fees under § 1988 which it announced in Garland. However, the court of appeals stated in Racine Unified School District:

"Texas State Teachers Association, however, concerned attorney's fees in an action under 42 U.S.C. § 1988. That case has no applicability to actions arising under the WFEA." 164 Wis. 2d at 610-611.

This pronouncement by the court of appeals that § 1988 has "no applicability" to actions arising under the WFEA appears in a published Wisconsin decision, and it cannot be ignored. Racine Unified School District in effect instructs the Commission to ignore law developed under § 1988 and to look instead at the pronouncements of the Wisconsin Supreme Court in cases such as Watkins, in which the Wisconsin Supreme Court discussed the appropriateness of awarding attorney's fees to complainants under the Wisconsin Fair Employment Act because of the role they have assumed to act as private attorney generals. Because Watkins and Racine Unified School District are much more directly applicable to the Commission than are the decisions of the U.S. Supreme Court under § 1988, the Commission looks to them rather than Farrar v. Hobby.

110

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