TAMMY A LUDWIG, Complainant

KOHLER COMPANY, Respondent

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 makes the following:

1. The complainant, Tammy Ludwig (hereinafter "complainant") has been diagnosed with cervicoscapular strain/sprain, lumbosacral strain/sprain, chronic myofascial pain syndrome, and chronic greater trochanter bursitis. Because of these conditions the complainant is restricted to eight hours of work a day with no overtime. She is also limited to no more than thirty minutes of repetitive hand movements per hour, and to lifting no more than thirty-five pounds occasionally and fifteen pounds frequently, with a maximum of five pounds overhead. The complainant is also limited to standing for no more than four to six hours in the course of an eight-hour day and has limitations with regard to pushing, pulling, reaching, bending, squatting, and kneeling.

2. In April of 1999 the complainant submitted an application for employment with the respondent, the Kohler Company (hereinafter "respondent.")

3. In September of 1999 the respondent's human relations manager, Steve Adamavich, called the complainant and notified her that the respondent had a job opening. An appointment was scheduled for the complainant to interview for the position of injection molding operator.

4. On September 22, 1999, the complainant reported to the respondent's workplace for an interview. The complainant was told that the position involved handling small plastic pieces, operating the presses, testing water faucets, taking toilet seats out of the press, trimming, putting them in boxes, and assembling and inspecting other plastic pieces. The complainant was given a tour of the plant and observed the job being performed.

5. The injection molding operator position required workers to operate machines that were kept running twenty-four hours a day through two twelve-hour shifts. The "A Crew" worked from 6:00 a.m. until 6:00 p.m., and the "B Crew" from 6:00 p.m. until 6:00 a.m.

6. The complainant was offered the job and accepted it, subject to a pre- employment physical. On the day of her physical examination the complainant provided the respondent's medical department with a document containing her work restrictions.

7. On or about October 13, 1999, Mr. Adamavich called the complainant and told her that the job offer was rescinded because of her restrictions.

8. The complainant told Mr. Adamavich to send a letter to her attorney explaining the respondent's reasons for rescinding the job offer. She did not disagree with Mr. Adamavich about her ability to perform the job and did not request any accommodations.

9. The complainant's work restrictions, particularly her inability to work a twelve-hour shift and to perform more than thirty minutes of repetitive hand movements in an hour, were reasonably related to her ability to adequately perform the job-related responsibilities of the position of injection molding operator.

10. The twelve-hour shift was part of a collective bargaining agreement, which the respondent could not alter to accommodate the complainant.

11. The position required repetitive hand and arm movements in excess of what the complainant was medically permitted to perform. No reasonable accommodation was available that would have enabled the complainant to perform the job notwithstanding her restrictions.

Based on the FINDINGS OF FACT made above, the commission makes the following:

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

That the complaint in this matter is dismissed.

Dated and mailed May 21, 2003
ludwita . rrr : 164 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

The complainant's burden in a disability discrimination case under the Wisconsin Fair Employment Act (hereinafter "Act") is to show that she is disabled within the meaning of the Act and that there was an adverse employment action based upon her disability. Wisconsin Statute § 111.32(8) defines an individual with a disability as one who (a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) has a record of such an impairment, or (c) is perceived as having such an impairment. An "impairment" for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis. 2d 706, 350 N.W.2d 120 (1984).

The complainant contended that she suffers from a condition called "myofascial syndrome," and presented a medical report which indicates that she has a variety of work restrictions. There is little evidence in the record regarding "myofascial syndrome," and little evidentiary basis upon which to draw a conclusion that it involves a lessening or damage to normal bodily function. Assuming, without specifically deciding, that the complainant's condition does constitute an impairment, or that the respondent perceived her as having an impairment, such impairment would be considered a disability because it limits the complainant's capacity to perform the job. Moreover, it is undisputed that the respondent rescinded its job offer because of the complainant's work restrictions, which relate to her myofascial syndrome and other conditions or diagnoses set forth in Exhibit 1.

Assuming the complainant has met her burden of proof under the Act, the burden then shifts to the respondent to demonstrate both that the disability was reasonably related to the complainant's ability to adequately perform the job- related responsibilities of her employment and that accommodation of her disability would pose a hardship on its business. While at the hearing the parties disagreed as to what the complainant was told about the job duties and when, there is no reason to doubt that the complainant was, in fact, physically unable to perform the duties of the job within the confines of her restrictions. Mr. Adamavich testified that the injection molding operator position involves many activities that require repetitious arm movements, and that all workers in that job work a twelve-hour shift. The hours of work and requirement of frequent repetitious arm movements exceed the complainant's restrictions. Given these factors, the respondent has demonstrated that the complainant's disability is reasonably related to her ability to adequately undertake the job-related responsibilities of the employment in question. (1)

Supposing the complainant has a disability that warrants accommodation, the final question presented is whether the respondent unlawfully refused to provide the complainant with a reasonable accommodation. At the hearing Mr. Adamavich testified that he did not offer the complainant a reasonable accommodation because she did not make such a request. Even if the complainant had requested an accommodation, it does not appear that one was available. The record indicates that the job involved frequent hand movements of the type which the complainant was restricted from performing, and there is no reason to believe that any alteration of the duties would have been possible to enable the complainant to perform the job while limiting her repetitive hand movements to thirty minutes each hour. Further, the complainant testified that she was told the twelve-hour shift was arrived at through mediation with the labor union, and there is no reason to believe that the respondent would have been able to alter it to accommodate the complainant. It therefore appears that, even if the complainant had requested an accommodation, there would not have been a reasonable accommodation available which the respondent could have provided.

NOTE: The commission has rewritten the administrative law judge's decision to correct factual errors and to more fully and accurately set forth the appropriate legal standard for a reasonable accommodation case.

cc: Attorney Paul H. Ten Pas

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(1)( Back ) At the hearing the complainant contended that she was also told she needed to lift at least 100 pounds and stand eight hours a day, both of which would be in violation of her restrictions. However, Mr. Adamavich denied having made these statements to the complainant and, although he testified that many workers routinely lift sinks that weigh between 120 and 140 pounds, he did not specifically indicate whether the complainant's lifting restriction prevented her from performing the job, nor did he state whether her inability to stand for long periods of time was problematic. The job description was not submitted at the hearing.

uploaded 2003/05/30