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



ERD Case No. CR200100576, EEOC Case No. 26GA10810

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:

Finding of Fact 22 on page 4 of the ALJ's decision is modified to read as follows, in order to more accurately reflect the record:

22. Ms. Saffell and Ms. Williams granted Ms. Powell all family or medical leaves to which she was entitled by statute.

Finding of Fact 38 on page 6 of the ALJ's decision is modified to read as follows, in order to more accurately reflect the record:

38. The communications from Ms. Powell and her doctors to Ms. Saffell and Ms. Williams amount to a request that she be accommodated by continuing her disability leave, or by allowing her to take leave of a type not subject to the employer's attendance policy, from August 19 through September 12, 2000.

The word "about" in the final phrase in the final sentence of Finding of Fact 39 on page 6 of the ALJ's decision is modified to read "above," in order to correct an error.

The word "there" in the first sentence of Finding of Fact 40 is deleted, in order to correct an error.

Conclusion of Law 3 is deleted because it is not necessary for the decision of this case.

Conclusion of Law 4 is deleted because it is not necessary for the decision of this case.

Conclusion of Law 6 is modified to read as follows, in order to more accurately reflect the appropriate legal standard:

The accommodation requested by Ms. Powell would not have posed a hardship on Ameritech.

The amount of reasonable attorney's fees and costs stated in paragraph 5 of the Order is increased to $31,469.73 (26,447.23 + 5,022.50), to reflect additional attorney's fees incurred by Ms. Powell after the date the ALJ's decision was issued, but not including the attorney's fees associated with Attorney Craanen's work on January 22, 2003.

The second sentence in paragraph 6 of the ALJ's Order is deleted and the following paragraph substituted therefor:

This Compliance Report shall be directed to Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708.

The second paragraph on page 14 of the ALJ's decision is modified to read as follows, for purposes of clarification:

These communications constitute a sufficient communication of a request for an accommodation. Moreover, the information provided to Ameritech did not suggest that a leave to allow for her condition to be diagnosed and stabilized would last for more than a few months. Ms. Williams had the opportunity to ask for clarification or information regarding how long the diagnosis process would take, but did not.

That portion of that section of the ALJ's decision under the heading 7. Ameritech Refused to Reasonably Accommodate Ms. Powell's Disability., which begins at the top of page 13 after the quotation from the Target Stores case, is modified to read as follows to more accurately reflect the commission's decision rationale relating to the reasonable accommodation issue:

Ameritech claimed that it offered a reasonable accommodation to Ms. Powell that she refused. Ameritech's proposed accommodation was for Ms. Powell to take Ameritech disability leave from August 2, 2000, to August 18, 2000; take the time between August 19, 2000, and September 6, 2000, as "incidental absence;" and then take vacation time between September 6, 2000, and September 13, 2000.

This is not a reasonable accommodation since having incidental absences subjects Ameritech employees to discipline. Ms. Powell had been told in May of 2000 that she would reach her threshold for incidental absences if she had any more of them. Any claim that Ameritech would not have taken the actions provided by its policies is not believable given the faithfulness with which Ameritech followed its policies and procedures. Ameritech's claim that its proposal would have probably saved Ms. Powell's job does not make it a reasonable accommodation. Continuing Ms. Powell on disability leave after August 18 or fashioning some other type of leave which would not advance Ms. Powell toward one of Ameritech's attendance thresholds, as requested by the complainant or her treating physicians, would have been a reasonable accommodation of her disability. The employer has failed to show that this accommodation would have created a hardship for Ameritech or that its proposed accommodation was a reasonable alternative.


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

Dated and mailed April 21, 2003 
powelev . rmd : 115 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


In its petition, the respondent states that it is only appealing the issue of "mitigation." The essence of respondent's argument is that, because the complainant failed to accept respondent's suggestion that she use accrued vacation time to cover the period of her absence from September 6-12, which would have prevented her termination, she failed to mitigate her damages and does not, therefore, qualify for a back pay award.

The commission's first problem with this argument relates to the general scope and applicability of the mitigation of damages concept. The use of this concept in fair employment cases stems from the statutory language of Wis. Stat. § 111.39(c) that "[i]nterim earnings or amounts earnable with reasonable diligence by the person discriminated against .shall operate to reduce back pay otherwise allowable." As a result, the mitigation of damages concept has apparently been utilized exclusively in Fair Employment Act (WFEA) cases in Wisconsin to determine whether a terminated employee exercised reasonable diligence in seeking comparable employment after her separation. However, respondent is not arguing, nor would the record support a conclusion, that, after she was terminated from the respondent employer, the complainant failed to exercise reasonable diligence in seeking other comparable work.

Respondent cites a 7th Circuit case, Novitsky v. American Consulting, 196 F.3d 699, 81 FEP Cases 409 (7th Cir. 1999) for the proposition that complainant's duty to mitigate damages required her to come to work once the respondent notified her that her disability leave had been denied and she was expected to return to work as a result. The Novitsky case was a religion discrimination case in which the court included in its decision a discussion of what a make-whole remedy would consist of in a case where the respondent's decision to deny the complainant's request for a day off to celebrate Yom Kippur was determined to be discriminatory. Not only was this case not decided under the WFEA, but the hypothetical nature of much of the court's discussion and its careful avoidance of a termination scenario undermine its applicability. Moreover, it is one thing to require an employee to work on a religious holiday when her physical ability to do so is not in question, but quite another thing to demand that an employee return to work when such a demand is inconsistent with the medical advice of the employee's treating physicians, and to then argue that, even though the demand was discriminatory and the employee's physical ability to perform her job questionable, the employee, in order to recover back pay damages, was required to ignore her physicians' advice and to return to work. To impose such a requirement on a disabled employee would conflict with the broad remedial purpose of the WFEA.

Although the respondent characterizes the argument it presents in its petition as one relating to mitigation of damages, what the respondent is actually arguing is the reasonable accommodation issue, i.e., that the respondent had offered the complainant a reasonable accommodation (use of vacation time to cover her absence from September 6-12 and return to work on September 13), she had refused this offer of reasonable accommodation, and she should not be allowed to profit from this refusal by receiving back pay from the date of the termination she could have avoided.

Even though an employee is not permitted to pick and choose among various reasonable accommodations but is deemed to have been sufficiently accommodated when the employer provides one reasonable accommodation, this is not the situation here, i.e., the accommodation offered by the employer was not a reasonable one. The record does not support a conclusion that offering other types of leave to an employee during a period of disability, which could subject her to discipline or other adverse consequences under the employer's attendance policy, is a reasonable accommodation.

What the commission is required to do in fashioning a remedy in a WFEA case is to re-create the conditions and relationships that would have existed if the unlawful discrimination had not occurred, i.e., to determine how to make the employee whole.

Here, absent the discrimination, the complainant would have been granted continuing disability leave (or some other type of leave not subject to penalty under the employer's attendance policy) for the period of time between August 19 and September 12, 2000, and would have returned to work on September 13, 2000, without restriction. Instead, she lost her job and, in the absence of evidence that she failed to diligently search for comparable employment after her separation, she would be entitled, pursuant to Wis. Stat. § 111.39, to back pay for the period of her unemployment.

Finally, counsel for complainant has requested the award of additional attorney's fees for time expended responding to the petition for commission review. Since the respondent failed to prevail in whole or in part on this petition, the commission grants this request except for those fees incurred for time spent by complainant's counsel on a related EEOC action (see the above modification to paragraph 5 of the ALJ's order). This would include the entire 1.80 hours billed for January 22, 2003, but not the 4.20 hours billed for October 6, 2002, since the reference to the EEOC on October 6 apparently relates to a form that was included in the ALJ's decision here.

Attorney Robert J. Craanen
Attorney Lisa M. Bergersen

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uploaded 2003/04/25