JAMES A RYAN, Complainant

COUNTY OF RICHLAND, Respondent

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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

Paragraphs 31 through 33 of the administrative law judge's FINDINGS OF FACT are deleted and the following substituted therefor:

"31. Notwithstanding Ryan's concerns about driving, when he declined the offer to return to work on May 7 he was able to perform most of the functions of the Sign Person job as posted on April 3, 1998. The job as posted did not require Ryan to drive more than 45 minutes per hour or more than 2.66 hours (33%) of an 8-hour work day, did not require him to lift more than 20 pounds, given that he could use the truck's boom and winch to avoid lifting, and did not require him to bend, twist, crawl, squat or climb more than 33% of the work day. Ryan's restrictions would have slowed the performance of his job, but the County had not been unsatisfied with the pace of his work when he was under similar restrictions in 1996 and early 1997, and was not requiring him to work at other than his own pace in May 1988.

"32. The Sign Person job posting contained two functions which Ryan would have difficulty performing--mowing and snow removal. However, the County had offered to accommodate Ryan by removing the mowing function from the job during the summer of 1998. The assignment of the mowing function in subsequent years was not discussed, and Ryan did not indicate whether or not he expected to require such accommodation on a permanent basis. Regarding snow removal, it was understood that the job would not require Ryan to plow snow on a regular basis, and he did not notify the County that that aspect of the job would pose any problem for him.

"33. When the County offered to return Ryan to the Sign Person position in 1998, it was understood that he could work at his own pace within his limitations and continue the practices he had developed, such as scheduling his day so as to minimize his driving, in order to stay within his restrictions. It was also understood that he would not be responsible for mowing, at least during the first year.

"34. Ryan suffers from a permanent physical deterioration of his back, which amounts to an impairment that limits his capacity to perform the job in question.

"35. The County did not refuse to provide Ryan with a reasonable accommodation for his disability."

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

Dated and mailed January 27, 2003
ryanja . rmd : 164 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In his petition for commission review the complainant argues that, contrary to the administrative law judge's findings, he was not able to perform the job "as posted" and that he needed an accommodation. The complainant contends that the respondent's agreement to exempt him from mowing duties was only temporary and was conditioned on him obtaining a revised report from his doctor, releasing him to return to work with significantly reduced restrictions. He further maintains that, because the position ultimately offered him was "as posted," it did not contain any accommodation with respect to mowing or plowing duties. The commission has considered these arguments, but finds them unpersuasive, for the reasons set forth below.

While the commission agrees that the complainant was not able to perform the job "as posted," and has modified the findings of fact accordingly, it disagrees with the complainant's assertions that he was not offered an accommodation or, in the alternative, that any accommodation offered was inadequate. At the hearing the complainant acknowledged that the respondent had previously offered removal of the mowing function as an accommodation, and notwithstanding the respondent's use of the term "as posted" during the May 7 conversation, the commission believes it was understood that the complainant would not be responsible for mowing duties. Moreover, if the complainant was genuinely confused by the apparent contradiction between the respondent's prior offer to remove the mowing functions and its more recent offer of the job "as posted," it stands to reason that he would have attempted to clarify the matter with the respondent before refusing the job. The complainant did not do so and, in fact, even after the respondent sent him a letter indicating that the job offer refused had included the accommodation in question, he made no effort to set the matter straight. The complainant's actions in this regard suggest that he understood he would not be expected to perform the mowing function of the job.

The commission also finds unpersuasive the complainant's arguments with respect to the duration of the accommodation offered. The mere fact that the accommodation was offered on a temporary basis does not render it insufficient, particularly where the complainant did not notify the respondent he needed a permanent accommodation, and the respondent did not believe this was the case. There is no reason to conclude that the respondent would not have continued to accommodate the complainant in subsequent years had he demonstrated this was necessary. The commission similarly rejects the complainant's contention that the mowing accommodation was conditioned on a requirement that he obtain a revised report from his doctor releasing him to return to work with significantly reduced restrictions. The record indicates that, prior to returning the complainant to work, the respondent asked him to obtain a doctor's release permitting him to lift between twenty and fifty pounds, and the complainant agreed to do so. However, the respondent's offer to remove the mowing function was not conditioned on his obtaining the release in question, nor has the complainant alleged that he had a weight restriction which the respondent refused to accommodate.

Turning next to the issue of snowplowing, the complainant's brief seems to suggest that he required some accommodation with regard to the plowing function contained on the posting. However, it is not entirely clear from the record whether the complainant required any modification with respect to this job duty. While the complainant indicated that snowplowing aggravated his back condition, he also testified that the job had not contained a regular snow removal route since 1992 and that it was understood the Sign Person was to be prepared to assist if needed, but would not have to plow snow on a regular basis. When discussing his concerns about the job with the respondent, the snow removal duties were not mentioned, and the complainant did not notify the respondent that he required any accommodation in this regard. Even assuming that the limited snow removal function contained in the job posting would have exceeded the complainant's physical limitations or aggravated his back condition, the respondent cannot be faulted for failing to offer an accommodation where the complainant never told the respondent it presented a problem for him.

Finally, in his petition the complainant makes the argument that he made an "extraordinary" effort to obtain Dr. Harbst's report in order to return to work as the Sign Person, and therefore would not have rejected the critical accommodation he was seeking had it really been offered to him. The complainant states that to do so would have been an irrational waste of time and effort on his part. Although the commission is unable to speculate as to the complainant's motivations in obtaining a doctor's excuse, then refusing the job when offered the accommodation he requested, its review of the record reveals the complainant's efforts to return to work to be somewhat less than "extraordinary." The complainant made little or no contact with the respondent during his nine-month leave of absence, and the meetings addressed at getting the complainant back to work were arranged at the respondent's initiative. Further, as stated above, the complainant made no effort to resolve the supposed lack of communication with the respondent, even after he received a letter indicating that he had refused the very accommodation he now claims he needed. While in his brief the complainant's attorney concedes that the complainant was "laconic and not much given to conversation," such personality traits do not justify his complete lack of initiative or relieve him of the obligation to participate in the accommodation process. The evidence in the record indicates that the respondent proceeded in good faith and made an honest attempt to return the complainant to work, notwithstanding his disabling back condition. Given all the circumstances, the commission sees no reason to conclude that the respondent discriminated against the complainant in the manner alleged. Accordingly, the dismissal of his complaint is affirmed.

cc: 
Attorney Bruce F. Ehlke
Attorney Meg Vergeront

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