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



ERD Case No. CR200001242, EEOC Case No. 23GA01044

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:

1. The following paragraph is inserted after paragraph five of the administrative law judge's ORDER:

"That the respondent shall pay to the complainant reasonable attorney fees and costs associated with the litigation, incurred subsequent to the issuance of the administrative law judge's proposed decision, in the amount of $9,196.82. A check in that amount shall be made payable jointly to the complainant and Attorney David C. Schoenberger and delivered to Mr. Schoenberger."

2. Paragraph six of the administrative law judge's ORDER is renumbered to paragraph seven, and is rewritten to read:

"That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."


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

Dated and mailed August 26, 2005
wicksre . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


This case presents the question of whether the respondent refused to provide the complainant with a reasonable accommodation when it discharged her, rather than permit her to continue working an eight-hour shift, either five days a week or on her regular schedule of seven days every two weeks, or to share one full-time twelve-hour shift with another worker and, if so, whether it met its burden of establishing that to provide such accommodation would have created a hardship for it. In a recent case involving the same employer, the Wisconsin Supreme Court held that providing an employee with a shortened shift may be a reasonable accommodation under the Wisconsin Fair Employment Act. See, Hutchinson Technology, Inc. v. Labor and Industry Review Commission, 273 Wis. 2d 393, 682 N.W.2d 343 (2004). However, in its brief the respondent urges the commission to disregard Hutchinson Technology and to rely on cases from other jurisdictions, including Minnesota and Alabama, which involve interpretations of federal law and state statutes other than the Wisconsin Fair Employment Act, in order to reach a conclusion that providing the complainant with an eight-hour shift would not be a reasonable accommodation and is not required by law. The respondent suggests that the administrative law judge erred in following Hutchinson Technology, because the evidence presented in that case was not identical to that presented here. Further, pointing out that Hutchinson Technology was a 3-2-2 decision, which included "a decidedly lukewarm concurrence and a strong dissent," the respondent states it believes the case was wrongly decided.

These arguments fail. There is no requirement that a decision be unanimous in order that it have precedential value, and the commission agrees with the complainant that the respondent's suggestion that it disregard the Hutchinson Technology decision and instead be guided by outside authority is a frivolous one. (1)   It is settled law that permitting an employee to work a shortened shift may, depending upon the circumstances, be considered a reasonable accommodation, and the Hutchinson Technology decision makes it clear that, where the complainant was able to perform her job effectively and without any problems for eight months by virtue of that accommodation, it must be considered a reasonable one. Thus, the only genuine question presented in this case is whether the respondent met its burden of demonstrating that permitting the complainant to continue working a modified schedule would pose a hardship for it. The commission finds it has not.

In its brief to the commission the respondent argues that it reasonably accommodated the complainant by allowing her to temporarily work shortened shifts. However, the respondent contends that to provide the complainant with a permanent accommodation would have imposed a hardship on its business. Specifically, the respondent maintains that it would be subject to significant costs in training a new employee to work the remainder of the complainant's shift. The respondent contends that, even if it were to implement the job-share arrangement the complainant has suggested, it would still be required to hire a new employee to fill the position vacated by the two formerly full-time employees who would be sharing one position. Further, the respondent maintains that using two employees for one shift would cause problems with communications between shifts and would compromise the employees' efficiency and ability to observe quality trends. Finally, the respondent contends that the complainant's co-workers had already begun complaining about her being favored with a shortened shift. It asserts that this resentment would certainly have increased and would have led to a demand for similar arrangements by others.

The respondent's arguments are without merit. The respondent's primary concern seems to be that accommodating the complainant by permitting her to work shorter shifts would require it to hire additional employees. However, the record does not warrant a conclusion that an accommodation would have resulted in any additional personnel expense. While in its brief the respondent asserts that the financial consequences of hiring an additional employee to work the remainder of the hours in the complainant's shift would be over $20,000, this ignores the fact that the record contains no evidence to suggest that the respondent actually incurred any additional payroll expense during the eight-month time period in which it temporarily accommodated the complainant by permitting her to work an eight-hour shift, nor was it established that the respondent's productivity suffered as a result of allowing the complainant to work only eight hours. Indeed, the evidence indicates that the complainant was sometimes sent home early because there was not enough work to do. Consequently, the commission sees no reason to assume that the respondent would need to hire additional staff in order to sustain reasonable levels of productivity, should it continue to provide the complainant with the same accommodation on a permanent basis.

The respondent also contends that implementing the job-share possibility would require the respondent to hire a new employee to fill the position vacated by one of the two formerly full-time employees who would be sharing one position. However, the commission fails to see how hiring a replacement for one of the two employees, assuming the respondent would have done so -- and the evidence on this point is less than clear -- can be considered an additional expense, where the respondent would be merely replacing the salary of one full-time worker with that of another. Moreover, if the respondent truly found it necessary to fill both the complainant's and her co-worker's jobs, the fact remains that, by discharging two employees rather than permitting them to share one job, the respondent put itself in the position of having to hire two new employees instead of one. There is, therefore, no reason to conclude that the respondent would have incurred greater personnel expenses by permitting the complainant and her co-worker to share one job than it did by discharging them both. Moreover, the commission notes that it appears the respondent's personnel expenses would actually have decreased by offering this accommodation, since the record indicates that a job-share arrangement would have reduced both employees to part-time status, thereby rendering them ineligible to receive health insurance or other benefits, at a savings to the respondent of over $4,000 per employee per year.

Turning next to the respondent's contention that using two employees for one shift would cause problems with communications between shifts and would compromise the employees' efficiency and ability to observe quality trends, the commission believes that such concerns, which were raised only after-the-fact, are unsupported by the evidence and amount to pure speculation on the respondent's part. As the administrative law judge noted in his decision, the respondent failed to consider the possibility of permitting two employees to share one job and failed to engage in any analysis of whether this proposed accommodation could have been effective. Had the respondent been willing to try the accommodation, it would have been able to make a determination as to whether scheduling difficulties or other problems actually manifested themselves.

The commission finds the respondent's arguments about morale problems equally unpersuasive. The respondent's only evidence on this point was the hearsay testimony of its human resources generalist that, while no one complained to him personally, the lead workers and supervisors told him they had received complaints about people working only part of the day, and the testimony of the complainant's lead worker that employees have asked him why the complainant only had to work half days. Such alleged complaints or questions by unnamed employees can hardly be considered evidence of a widespread morale problem. Moreover, even if the respondent had demonstrated that other workers complained about the complainant's working a shorter shift, the mere fact that some co-workers may think accommodations are unfair does not release an employer from its duty of assisting disabled workers to remain employed.

The respondent's brief also contains arguments with respect to the reinstatement order issued by the administrative law judge, which the respondent apparently believes requires it to put the complainant to work full time alternating between two crews, a matter the respondent contends will force it to find a way to make up for the complainant's partial absence on two crews. The respondent also takes issue with the portion of the order addressing benefits, which it maintains requires it to provide the complainant with benefits in spite of the fact that work of less than 30 hours would not obligate it to do so. These arguments fail. In the first place, the commission notes that the administrative law judge's order requires the respondent to reinstate the complainant to a position offering no more than eight hours a day five days a week, but does not specify that the complainant must receive full-time work or that she be permitted to alternate between two crews. Rather, the order as written by the administrative law judge appears to give the respondent discretion to offer any reasonable configuration of hours that would not require the complainant to exceed her medical restrictions. Further, and perhaps more to the point, to the extent the respondent is arguing that the reinstatement order results in a hardship to it, this is an argument which goes to the merits of the case, and which has already been considered and rejected.

With regard to the payment of benefits, the order indicates that the complainant shall receive any benefits she would have received had she not been discharged. The record indicates that, had the respondent retained the complainant at less than full-time status, it would not have had to provide her with paid health insurance and other benefits. Nothing about the administrative law judge's order conflicts with this.

Next, the respondent argues that the case was placed in abeyance on May 3, 2001, to await the supreme court's decision in the Hutchinson Technology case cited above, and that the complainant should not receive back pay while the case was held in abeyance, because this amounts to a windfall of twenty-five months of salary and benefits. (2)   However, the respondent has not provided any authority for tolling the back pay award while a matter is held in abeyance, and the commission sees no reason to do so. The case was originally placed in abeyance at the request of the parties, until the commission issued its decision in Roytek v. Hutchinson Technology, Inc. (LIRC, Jan. 28, 2002). The commission's decision was unfavorable to the respondent, and the respondent sought court review of that decision, ultimately taking the matter up through the supreme court level. The respondent's efforts to overturn the decision culminated in an unsuccessful request for reconsideration by the supreme court. Correspondence from the administrative law judge does not indicate that the respondent objected to holding this matter in abeyance pending the outcome of the Roytek appeals, and states that there was never any communication from the parties regarding the suspension of back pay during the period in which the case was held in abeyance, nor any ruling by the administrative law judge on that subject. Given the circumstances, and in the absence of any specific prior agreement between the parties, the commission does not believe it would be equitable or appropriate to suspend the accrual of back pay during the time in which this matter was held in abeyance. 

Attorney Fees and Costs

The complainant's attorney has requested a total of $9,196.82 in costs and fees for work performed in conjunction with this litigation subsequent to the issuance of the administrative law judge's non-final decision. The respondent has argued for a reduction in the amount awarded for filing the complainant's reply brief. Specifically, the respondent contends that in Roytek v. Hutchinson Technology, Inc. (LIRC, Jan. 28, 2002), the commission found a request for $6,176 performed subsequent to the appeal to be excessive and cut it in half. The respondent argues that the same should be done in this case. However, the commission's decision in Roytek does not stand for the blanket proposition that $6,176 is an unreasonable attorney fee request. Rather, the decision was based on an individualized assessment that the brief submitted on behalf of the complainant by her attorneys did not reflect the number of hours of work for which reimbursement was requested. In this case, by contrast, the complainant's attorney has submitted a lengthy and detailed brief, which contains numerous citations to the record as well as citations to pertinent case law. The time spent preparing this brief does not seem to be excessive, nor does the brief to the commission appear to be duplicative of that which was filed before the administrative law judge. The commission, therefore, sees no reason to question the amount of time spent by the complainant's attorney preparing the responsive brief. In a subsequent decision involving the attorney fees and other remedies ordered in the same case as that discussed above, Roytek v. Hutchinson Technology (Feb. 15, 2005), the commission stated that the party challenging fees must do more than simply object to the fees requested, but should explain specifically why it believes the requested fees are excessive and propose a more reasonable alternative. The respondent's argument that, because the commission reduced the fees requested for the preparation of a responsive brief in a previous case it should do so here, does not satisfy that burden.

The respondent has not raised any objections to payment of the remaining items for which the complainant's attorney seeks reimbursement, and it apparently concedes that those items are payable. Absent any reason to believe the fees requested by the complainant's attorney are unreasonable, and lacking any specific objection from the respondent, the commission has modified the administrative law judge's order to include the payment of attorney fees and costs in the amounts requested by the complainant's attorney.

Attorney David C. Schoenberger
Attorney Carol S. Dittmar

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(1)( Back ) The commission, however, has no authority to enhance the damage award as requested by the complainant. Under Wis. Stat. 227.483, the remedy for a frivolous claim or defense is limited to awarding the successful party the costs and reasonable attorney fees that are directly attributable to responding to the frivolous claim or defense.

(2)( Back ) The record indicates that the matter was in abeyance from May 3, 2001 through October 31, 2002, a total of approximately seventeen months.


uploaded 2005/08/29