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



ERD Case No. CR200001517,

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:

The seventh sentence of Finding of Fact #11 is modified to read as follows:

No later than October 31, 1999, Mr. Jankowski expressed concern whether Mr. Greenwood, if he were to return to work as a delivery driver, would be able to do the lifting required by the job.

Conclusion of Law 1 is modified to read as follows (the language added is in italics):

Darcy Loy Greenwood was protected from employment discrimination under the Wisconsin Fair Employment Act (WFEA) on the basis of age by being 40 years of age or older, conviction record by having been convicted of operating a motor vehicle under the influence of alcohol, and disability by being perceived by Mr. Jankowski, prior to March 30, 2000, as having an impairment that limited his ability to perform the job of driver/delivery person for Ross Furniture.


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

Dated and mailed December 30, 2004
greenro . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Scope of the issue before the commission

In the complaint filed on May 2, 2000, Greenwood alleges that he was discriminated against on the basis of disability and age when he was not returned to work by Ross Furniture on March 30, 2000. In an amended complaint, Greenwood alleges that he was also discriminated against on the basis of conviction record in regard to this action.

Greenwood argues through counsel that his allegations should subsume the failure of Ross Furniture to re-hire him when it had vacancies in its delivery driver positions after March 30, 2000.

However, the hiring decisions made by Ross Furniture after March 30, 2000, are not at issue here. They are discrete transactions not arising out of the same set of facts or circumstances as the March 30 action, and, as a result, required to have been separately pled in order to be actionable. Kirk v. Neenah-Menasha YMCA, ERD Case No. 199903613 (LIRC Feb. 14, 2003); James v. Associated Schools, Inc., ERD Case No. 8812763 (LIRC Nov. 27, 1991). In fact, these decisions could not have formed part of the basis for the complainant's charge of discrimination because they were made after the date the charge was filed. See, James, supra. It is not even arguable that they were part of a continuing or rolling recruitment because the record does not support a conclusion that there was any overlap in the applicant pools used by Ross Furniture to fill delivery driver vacancies during 2000 and 2001. Although the record shows that someone at Ross Furniture contacted the candidates from the January recruitment on or around April 25, 2000, it does not support a conclusion that the Jankowskis, who were the hiring authorities for Ross Furniture, contacted or considered any of these January candidates for delivery driver vacancies on or after that date.

There was ample opportunity for Greenwood to file additional timely complaints in regard to Ross Furniture's failure to hire him for delivery driver vacancies after March 30, 2000, but, despite the fact that he has been represented by counsel since December 1, 2000, failed to do so.

It is noted, however, that even though these subsequent hiring decisions are not actionable here, evidence relating to them could be relevant to the issues under consideration. 

Disability discrimination

Individual with a disability

The complainant's initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) 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 WFEA 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 whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). 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); Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).

The administrative law judge concluded that Greenwood had sustained his burden to prove that he was an "individual with a disability." The commission agrees as it relates to the decision to effectively terminate Greenwood's employment in November of 1999, but not as it relates to the decision not to return Greenwood to work on March 30, 2000.

The administrative law judge's conclusion was based on his finding that, in November of 1999, Mr. Jankowski stated that he was concerned that, if Greenwood were to return to work, he "would be unable to do the lifting required by the job." Actually, this statement would have been made no later than October 31, 1999, since the individual upon whose testimony this finding is based left Ross Furniture, according to her hearing testimony, in September or October of 1999, and the commission has modified Finding of Fact 11 as a result.

However, any such concern by the Jankowskis would have been allayed when, on March 30, 2000, Greenwood told them that he had been released to return to work without any restriction on his ability to perform delivery driver duties.

Greenwood's impairment was a temporary one which, as a result, does not qualify as an actual disability within the meaning of the Wisconsin Fair Employment Act. Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Falk v. WIPC LLC, ERD Case No. CR 200200400 (LIRC Dec. 18, 2003). Moreover, despite prior concerns, Ross Furniture had no reason on or after March 30, 2000, to perceive that Greenwood's impairment would limit his capacity to work in a delivery driver position in any way.

As a result, Greenwood failed to sustain his burden to prove that he was an individual with a disability within the meaning of the WFEA in regard to the March 30, 2000, decision by Ross Furniture not to return him to work as a delivery driver. 

Termination of employment-disability

Ross Furniture effectively terminated Greenwood's employment in November of 1999 when it replaced him with a permanent employee. There is no question that this action was taken due to Greenwood's disability, and also no question that Greenwood was unable at that time to adequately undertake his work responsibilities.

The remaining question then in regard to this allegation is whether Ross Furniture fulfilled its duty of reasonable accommodation. The only potentially applicable accommodation, and the only one argued by the parties, would have been the extension of Greenwood's medical leave for an indefinite period of time. Ross Furniture had already provided Greenwood a period of medical leave twice as long as it had ever provided any other employee. Ross Furniture had no assurance in November of 1999 that Greenwood, who had already been on medical leave for four months, would be returning to work in the near future or at all. Although a temporary leave to permit medical treatment over a relatively short period of time may be a reasonable accommodation, the period of indefinite leave suggested here would not. See, Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998) (a temporary leave to permit medical treatment over a relatively short period of time, which, if successful, will remove the difficulty in performing job-related responsibilities, may be a reasonable accommodation); Janocik v. Heiser Chevrolet, ERD Case No. 9350310 (LIRC Nov. 21, 1994) (a reasonable accommodation does not include keeping a job open for an employee who has been unable to work for an extended period of time and for whom there is no foreseeable return to work date); Lewandowski v. Galland Henning Nopak, Inc., ERD Case No. 199603884 (LIRC Jan. 28, 1999) (while a reasonable accommodation may entail holding a job open for a disabled employee who is away from the workplace on a medical leave of absence, an employer cannot reasonably be expected to hold a job open indefinitely when there is no indication the employee will ever be able to return to work).

Greenwood references Ross Furniture's failure to provide him actual notice of his termination in November of 1999 as evidence of respondent's discriminatory animus. However, the issue here relates not to the quality of Ross Furniture's personnel practices but instead to the existence of discrimination. Although it would have been a better practice for Ross Furniture to provide such notice, its failure to do so does not prove discrimination. It is also interesting to note in this regard that Greenwood's frequent visits to Ross Furniture from July of 1999 through March of 2000, and his initiation of a search for other employment on March 28, 2000, i.e., two days before the Jankowskis told him that they were not returning him to work for Ross Furniture, support a conclusion that Greenwood had constructive notice of his termination prior to receiving actual notice.  

Failure to return to work-disability

Greenwood further alleges that he was discriminated against based on disability when, on March 30, 2000, the Jankowskis did not return him to work for Ross Furniture. As discussed above, Greenwood failed to prove that the Jankowskis perceived him to be disabled at that point in time and, as a result, that he qualified as an individual with a disability within the meaning of the WFEA in regard to this allegation. However, even if Greenwood would have sustained his burden in this regard, he failed to prove discrimination.

The Jankowskis' explanation for not returning Greenwood to work for Ross Furniture, i.e., that there were no vacant delivery driver positions at that time, is legitimate and non-discriminatory on its face. Greenwood failed to prove that this explanation was a pretext for discrimination. The record supports a conclusion that Ross Furniture had never employed more than two full-time delivery drivers at one time, and that business conditions did not merit employing more than two in March of 2000. (1)   The record further shows that both delivery driver positions were occupied by permanent, full-time employees on March 30, 2000. In addition, the record does not support a conclusion that this was not the actual reason for the subject decision. Although Greenwood contends that, during their March 30 meeting, the Jankowskis initiated a discussion of insurance matters, this contention is not credible. There was no need for the Jankowskis to offer a reason in addition to the lack of a vacancy. Since Ross Furniture did not pay any part of the premiums for the health insurance plan it offered its employees, the Jankowskis had little reason to be concerned about the effect of Greenwood's health condition on such premiums. Finally in this regard, Ross Furniture had employed Greenwood for many years despite his poor driving record and lack of a driver's license, and had not recently contacted its liability insurer to determine the effect his driving record would have on its liability insurance costs.

Greenwood argues that the fact that Ross Furniture was aware in January of 2000 that he "should" be able to return to work by the time that driver Degarmo left to return to his seasonal job, but filled Degarmo's position with another worker, demonstrates pretext. However, this was not an assurance by Greenwood that he would be able to return when Degarmo left and, in fact, when Degarmo left in February of 2000, Greenwood had not yet been released to return to work and was not released until more than a month later.

Greenwood also contends that the fact that Degarmo was granted lengthy "leaves" to work in his seasonal job, demonstrates that Greenwood was treated differently because of his disability. However, the record does not show that Degarmo was actually granted leaves by Ross Furniture in order to return to his seasonal job, with the assurance that, at the end of the period of leave, he would be returned to a delivery driver position.

Finally, the circumstances here do not paint a picture of an employer with a discriminatory animus. Ross Furniture had employed two older workers (Curti and Mundsack) for many years, had granted them medical leaves up to eight weeks in duration when they had been ill or injured, and had returned them to their physical jobs in the warehouse after the period of their leaves. Although Mundsack was Ms. Janowski's father, the record does not show that Curti had any family relationship to the Janowskis.

Greenwood failed to sustain his burden to prove disability discrimination. 

Age Discrimination

Even if Greenwood had established a prima facie case of age discrimination, he failed to prove that Ross Furniture's reasons for terminating his employment or for failing to return him to work on March 30, 2000, were a pretext for discrimination.

Greenwood offers certain hiring statistics in an effort to show pretext. Although these statistics do demonstrate that the workers hired by Ross Furniture from July of 1999 through August of 2001 were under the age of 40, these statistics are meaningless for purposes of this analysis because they fail to specify the number of opportunities Ross Furniture had to select protected-age candidates for these hires.

Greenwood also points to the notation on certain job applications that the candidate appeared "strong." However, strength is not directly correlated with age.

Greenwood failed to sustain his burden to prove age discrimination.  

Conviction record discrimination

This allegation relates only to the respondent's failure to return Greenwood to work on March 30, 2000.

Greenwood's theory relies on his contention that, on March 30, 2000, the Jankowskis mentioned insurance as a reason for not returning him to work for Ross Furniture. He posits that this was a reference to liability insurance, that Ross Furniture was concerned about the effect his four convictions for DUI could have on the business's liability insurance, and that, as a result, this represents discrimination on the basis of conviction record.

First of all, as concluded above, Greenwood's representation that insurance was mentioned by the Jankowskis during the March 30, 2004, discussion, is not credible.

Greenwood argues through counsel, however, that Ross Furniture, through a "judicial admission" in its answer, acknowledged that "it was the complainant's poor driving record that was the reason he was not rehired." (page 6 of complainant's reply brief).

In fact, in its answer, respondent states in the operative paragraph (#13) as follows:

Respondent denies making any statements to Complainant of any kind at any time regarding his employment status with Respondent being based on insurance. At the time that Complainant was employed with Respondent, there was no health insurance. The only statement made to Complainant at any time regarding insurance concerned liability insurance and the fact that Complainant did not have a valid driver's license and had a poor driving record. Surely, this is [a] legitimate, nondiscriminatory business concern of Respondent.

Contrary to Greenwood's counsel's assertion, this is not an admission by respondent that complainant was not returned to work on March 30, 2000, because of his poor driving record. It is at most an acknowledgement that, at some unspecified point in time, Ross Furniture expressed to Greenwood its legitimate concern that his poor driving record could have an impact on the business's liability insurance. Despite this concern, however, Ross Furniture re-hired Greenwood in 1994 after he had been terminated from a job with a different employer due to his four DUI convictions, and continued to employ him until November of 1999. Greenwood failed to show that his criminal record played any part in Ross Furniture's decision not to return him to work on March 30, 2000, and, in fact, such a conclusion would be inconsistent with Ross Furniture's hire, during the relevant time period, of an applicant it knew had a recent DUI conviction, and another who had a recent criminal conviction and worked for Ross Furniture while on Huber release privileges.

Greenwood failed to prove that he had been discriminated against on the basis of his conviction record as alleged.

Attorney James G. Birnbaum
Attorney Dawn Marie Harris

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(1)( Back ) Ross Furniture was not required to create a new position for Greenwood or to remove another employee from his position to create a vacancy to which Greenwood could have been appointed. See, Macara v. Consumer Co-op of Walworth County, ERD Case No. 8802872 (LIRC Feb. 14, 1992) (there were no open positions to which the complainant could have been transferred after the expiration of her medical leave and it would have posed a hardship to require the employer to create a new and unnecessary position for her or to discharge another employee to make room for her).


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