BRADLEY P. GAMROTH, Complainant
DEPARTMENT OF CORRECTIONS, Respondent
c/o WAUPUN CORRECTIONAL INSTITUTION
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. Timely petitions for review were filed by both parties.
The commission has considered the petitions 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:
In Finding of Fact No. 7, delete "braising" and substitute therefor "brazing".
In Finding of Fact No. 12, delete "Newberg" and substitute therefor "Nimmer".
In Finding of Fact No. 20, change "February 6" to "February 26".
In Finding of Fact No. 25, in footnote 6, delete "Mr. N" and substitute therefor "Mr. Newberg".
In Finding of Fact No. 40, delete "Dr. K" and substitute therefor "Dr. Knueppel".
Finding of Fact No. 47 is deleted and the following is substituted therefor:
47. The evidence in the record does not establish that the use of a computer and scanner would have been effective in ameliorating any of the complainant's performance deficiencies in regard to the entry of data on forms.
In Finding of Fact No. 63, delete the duplicate line of text ("4/99, with the requirement that he 'Apply all skills of Journeyman Steamfitter as described by") which appears at the top of Page 20.
In Finding of Fact No. 65, in footnote 23, delete "Dr. Knueppelelleye J. Knueppel" and substitute therefor "Dr. Kellye J. Knueppel".
In Finding of Fact No. 78, delete "Mr. Morschauserorschauser" and substitute therefor "Mr. Morschauser".
In the first sentence of Finding of Fact No. 92, add the word "he" following the word "if".
In the third sentence of Finding of Fact No. 93, delete the word "to".
Finding of Fact No. 134 is renumbered to Finding of Fact No.135, and the second of the two Findings of Fact numbered 133 is renumbered to Finding of Fact No.134.
Delete the Conclusions of Law and substitute therefor the following:
1. ERD Case No. 200303158, concerning the claim of a violation of the Public Employee Safety and Health Law, Wis. Stat. § 101.055, is not properly before the commission, because pursuant to Wis. Stat. § 101.055(8)(d) appeals of decisions of administrative law judges of the Equal Rights Division in such cases are to be filed directly in circuit court, and the commission lacks any authority to consider such appeals.
2. ERD Case No. 200303159, concerning the claim of a violation of the State Employee Whistleblower Law, Wis. Stat. § 230.45(l)(gm), is not properly before the commission, because pursuant to Wis. Stat. § 230.87 appeals of decisions of administrative law judges of the Equal Rights Division in such cases are to be filed directly in circuit court, and the commission lacks any authority to consider such appeals.
3. ERD Case No. 200303157, concerning the claim of a violation of the Fair Employment Act, Wis. Stat. § 111.31-111.395, is properly before the commission pursuant to its authority in Wis. Stat. § 111.39(5).
4. Complainant is an employee within the meaning of Wis. Stat. § 111.32 (5) and an individual with a disability within the meaning of Wis. Stat. § 111.32 (8).
5. Respondent is an employer within the meaning of Wis. Stat. § 111.32 (6)(a).
6. Respondent's treatment of Complainant, including its decision to discharge him, was not motivated by any invidious bias or animus against Complainant because he was an individual with a disability, and that treatment, including his discharge, did not constitute employment discrimination because of disability within the meaning of Wis. Stat. § § 111.321 and 111.322.
7. To the extent that Respondent's treatment of Complainant, including its decision to discharge him, was motivated by its dissatisfaction with performance deficiencies which were caused by Complainant's disability, the Respondent did not by that treatment engage in employment discrimination because of disability within the meaning of Wis. Stat. § 111.34, because there was a reasonable relationship between Complainant's disability and his ability to undertake the job-related responsibilities of Complainant's employment, within the meaning of Wis. Stat. § 111.34(2)(a).
8. Respondent did not refuse to reasonably accommodate Complainant's disability, either with respect to the matter of providing him with a large number calculator, larger work orders, a larger dry-erase board, a larger desk calendar, a computer and scanner, placing him on a medical leave, or extending clemency and forbearance to him with regard to his performance deficiencies, within the meaning of Wis. Stat. § 111.34 (1)(a).
Those parts of the administrative law judge's OPINION beginning with the heading "DENIAL OF ACCOMMODATION" on page 58 of the decision, and extending through the second paragraph on page 78, are deleted.
Those parts of the administrative law judge's OPINION beginning with the heading "OSHA CLAIM" on page 96 of the decision, including the matters under that heading and under the headings "WHISTLEBLOWER CLAIM" and "REMEDY," are deleted.
The ORDER is deleted.
The petition for review filed by the complainant is dismissed insofar as it seeks review in ERD Case No. 200303158, concerning the claim of a violation of the Public Employee Safety and Health Law, and insofar as it seeks review in ERD Case No. 200303159, concerning the claim of a violation of the State Employee Whistleblower Law.
The decision of the administrative law judge (copy attached), as modified, is affirmed. The complaint is ERD Case No. 200303157 is dismissed.
Dated and mailed October 20, 2006
gamroth . rmd : 110 :
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Procedural history and issues -- This case presents a procedural complication having to do with the authority of the commission to entertain the petition for review insofar as it addresses certain issues.
This case had its origins in complaints filed with the Wisconsin Personnel Commission prior to its elimination in 2003. (1) The initial complaint was filed with the Personnel Commission on December 16, 1999. That complaint alleged that the respondent had discriminated and retaliated against the complainant in various respects, all in violation of the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31-111.395. The matter was assigned case number 99-0196-PC-ER.
On January 24, 2000, the complainant filed an amended complaint which alleged that the respondent had terminated him because of disability and age and in retaliation for his having opposed discrimination and having filed a previous complaint under the WFEA, all in violation of the WFEA. The amended complaint also alleged that the respondent had terminated the complainant because he raised occupational safety and health concerns, in violation of Wis. Stat. § 101.055, the Public Employee Safety and Health Law, and it also alleged that the respondent had terminated the complainant because of whistleblowing concerning violation of safety laws, in violation of Wis. Stat. § 230.80 et seq., the State Employee Whistleblower Law.
For a number of months after the filing of the amended complaint the Personnel Commission continued to process the entire matter, including the allegations added by the amended complaint, as one case. However, in July, 2000, the Personnel Commission separated the matter into two cases. One case consisted of the claims under the WFEA and the State Employee Whistleblower Law; this case retained case number 99-0196-PC-ER. The other case consisted of the claims under the Public Employee Safety and Health Law, and it was assigned case number 99-0209-PC-ER. (2)
The Personnel Commission issued an Initial Determination in the Public Employee Safety and Health Law matter, case number 99-0209-PC-ER, on July 31, 2000. This determination concluded that there was no probable cause to believe that the respondent terminated the complainant's employment in violation of the Public Employee Safety and Health Law. The complainant filed a timely appeal of this determination.
Subsequently, the cases were in practical effect recombined as a result of the complainant's agreement to waive investigation in case number 99-0196-PC-ER (the WFEA / State Employee Whistleblower Law case) and an agreement between the parties to submit all of the issues to hearing on the merits at one time.
Hearing began in January, 2001 before Anthony J. Theodore, who at that time was General Counsel for the Personnel Commission. It was completed, after 15 days of hearing, in October, 2001, by which time Theodore had been appointed as a member of the commission. Post-hearing briefing was completed by April, 2002. However, for a variety of reasons which are touched on by correspondence in the file, no decision was issued until May, 2003.
Theodore issued a proposed decision and order on May 9, 2003. This was consistent with the provisions of Wis. Stat. § 227.46, applicable to the proceedings of the Personnel Commission, which calls for the hearing examiner to issue a proposed decision, to which parties may then file objections, following which the agency then issues the final decision. Wis. Stat. § 227.46(2), (3). The decision was a "split" one, in which Theodore rejected most of the claims of discrimination, but did find that the respondent denied reasonable accommodation of disability to the complainant by not engaging in an "interactive process" regarding one specific possible accommodation (a computer and scanner). The only remedy awarded (apart from a cease and desist order) was attorney's fees and costs totaling $6,103, a "partial success" amount equivalent to only 10% of the amount complainant had requested.
The cover letter which accompanied Theodore's proposed decision provided the parties until June 9, 2003, to file objections or request oral argument. The parties jointly requested an extension of the time for filing objections. On June 13th the time was extended to June 23rd. As reflected in a June 23rd email message from Theodore, the deadline for filing objections was then postponed indefinitely. Both postponements were based in part on efforts to settle the matter. Neither party actually ever filed objections to the proposed decision during the remaining period in which the matter was pending as a case before the Personnel Commission.
Effective July 26, 2003, and pursuant to 2003 Wis. Act 33, the Personnel Commission was abolished and the responsibility for further processing of these matters was transferred to the Equal Rights Division of the Department of Workforce Development. (3)
As noted above, the procedural posture of the case when it was last at the Personnel Commission had been that a proposed decision had been issued pursuant to Wis. Stat. § 227.46(2) and the case was pending the filing of objections under that section, objections which would then (if filed) put the matter on track for a final agency decision pursuant to Wis. Stat. § 227.46(3). The transfer of the case to the Equal Rights Division presented a question as to what procedural posture the case should be considered to be in at the ERD. This was because in that new context, the specific provisions of Wis. Stat. § 111.39 took precedence over the general provisions of § 227.46, and those specific provisions were different. Under § 111.39, instead of a hearing examiner's proposed decision, filing of objections, and issuance of a final decision by the agency, the procedural pathway involves a decision by an ALJ (hearing examiner), filing of a petition for review by LIRC, and issuance of a decision by LIRC. The question of how a case which had gone to the "proposed decision" stage at the Personnel Commission was to be handled at the ERD was not specifically answered by the law that eliminated the Personnel Commission and transferred its functions.
The question presented some difficulties, for a number of reasons. One was that there was an issue of attorney's fees presented but unresolved by Theodore's decision, which had found some elements of discrimination because of disability and had indicated that the parties would be given the opportunity to address the matter of attorney's fees. Another reason had to do with differences in the appeal pathways provided by statute for the different issues which had been combined in the case.
The ERD decided to handle the matter by having an ALJ of the ERD re-issue Theodore's decision, as if it were a non-final decision of an ERD ALJ in a case in which discrimination was going to found and positions on an attorney's fee award were being solicited. Thus, a decision went out over the name (although not the signature) of ALJ John Brown, which was, in its content, identical to the decision which Theodore had issued. It was accompanied by the standard service letter used by the ERD in cases in which an ALJ has decided to find discrimination, with a scheduling order for filing of complainant's petition for attorney's fees and costs and respondent's response thereto. Subsequently, the complainant filed his petition for attorney's fees and supporting materials, and the respondent filed its response. Then on May 26, 2004, the ERD issued the decision in final form. It was, again, essentially (4) identical to Theodore's decision insofar as it addressed the merits, but it had added to it a dispositional order including an order for attorney's fees, and a section of Opinion addressing attorney's fees, which had been authored by ALJ Brown, and it went out over Brown's signature.
This was the point at which the procedural complication arose in this case. When it issued the decision, the ERD attached its standard service letter advising the parties that if they were dissatisfied with the decision they could petition for review by LIRC. Insofar as the decision was one addressing a discrimination claim under the WFEA, that was correct. However, insofar as the decision was one addressing retaliation claims under the Public Employee Safety and Health Law and the State Employee Whistleblower Law, it was incorrect. Under both of these laws, decisions of the Equal Rights Division are not appealable to LIRC. By law, appeal from ERD decisions under both of these laws are to be taken directly to circuit court. See, Wis. Stat. § 101.055(8)(d); Wis. Stat. § 230.87.
Because the commission clearly has no authority to decide appeals from decisions of ERD administrative law judges in Public Employee Safety and Health Law and State Employee Whistleblower Law cases, it has dismissed the petition for review insofar as it seeks review in ERD Case Nos. CR200303158 and CR200303159.
It should be noted, however, that the commission's dismissal of the petition for review as to the Public Employee Safety and Health Law and State Employee Whistleblower Law claims should not prejudice the complainant's rights to obtain review of the ALJ's decision with respect to those claims. This is because under Wis. Stat. § 227.48(2), no timeline for commencing a proceeding for judicial review of an agency's decision begins to run until the agency issuing that decision provides the parties with notice of their rights to judicial review. In this case, the Equal Rights Division never provided correct information concerning the right to appeal the decision insofar as it resolved the Public Employee Safety and Health Law and State Employee Whistleblower Law claims. Therefore, the time period for filing a petition for judicial review of the decision insofar as it affected those claims, never began to run.
The commission has requested the Equal Rights Division to now issue to the
parties, on the same day that the commission issues this decision, a notice
properly describing the rights of the parties to petition for judicial review of
the decision in respect to those claims, and it is its understanding that such
notices will be issued. This will cause the effective period within which a
petition for judicial review of the decision as to the Public Employee Safety
and Health Law and State Employee Whistleblower Law claims to be filed, to begin
to run. This period will also be contemporaneous with the period which will
begin to run within which a petition for judicial review of the commission's
decision on the WFEA claim may be filed. Thus, the complainant will have the
opportunity to seek judicial review of any or all of the matters at issue
Merits -- The complainant, a steamfitter, was hired by the Wisconsin Department of Corrections in 1990 to work as a steamfitter at Waupun Correctional Institution. The complainant has a disability involving his vision. He had an injury to his left eye when he was young which resulted in the loss of that eye's lens, and then in 1994 he had a lens implant in the eye, which restored some vision but left a continuing problem with the eye "drifting" out, affecting his depth perception. The complainant was employed at Waupun until late 1999. From around 1994 on, there was increasing criticism of his performance, in various respects. The annual evaluations of complainant ("Performance Planning and Development" reports, or PPDs) prepared by his supervisor, Mr. Newberg, noted many deficiencies in performance, and the relationship between the complainant and his supervisor and others in management became increasingly strained. In 1999, the complainant was placed on a "Concentrated" Performance Planning and Development plan. He was then discharged in late 1999. This case concerns the complainant's allegation that his treatment by DOC, including his eventual discharge, involved discrimination because of disability, both directly and by failure to reasonably accommodate his disability.
The foregoing summary of the facts of this case represents a significant condensation of an extremely large evidentiary record, created over the course of 15 days of hearing. (6) Based on a careful and thorough review of that entire record, the commission is satisfied that ALJ Theodore's findings of fact -- which are themselves very lengthy, comprising 134 numbered findings paragraphs and extending over 37 pages -- are well-supported by the record. It is for this reason that, with the exception of certain limited modifications (see NOTE, infra at p. 18), the commission has adopted the findings of fact as its own.
Ultimately, the issues of intentional discrimination because of disability which are presented by this case turn on questions about intent and motive which must be answered by drawing inferences from the statements and actions of the persons involved as they are disclosed in the evidence and the findings. The commission notes that complainant's very extensive written argument (a 58-page brief in support of his petition) contains no specific, direct challenges to any particular findings of fact made by the ALJ. The complainant's disagreement is basically with what should or should not be inferred, from the massive collection of facts in this record, about intent and motive. The commission has considered the complainant's arguments, but it is ultimately persuaded that the inferences drawn by the ALJ about the subjective beliefs and motivations of various actors here, are the correct ones. The commission thus agrees with the ALJ, that the members of respondent's management who evaluated the Complainant had a good-faith belief that their evaluations were accurate, and the decision to discharge the Complainant was based on a good-faith belief that the Complainant's performance was poor and that there was just cause for discharge.
Questions about the subjective attitudes of the parties and of their intentions, implicate the matter of credibility. The commission notes that ALJ Theodore expressly assessed the complainant's credibility as being "not good". ALJ Theodore's Opinion, p. 48. He based his negative opinion of the complainant's credibility on a number of factors, including his perception that the complainant was "frequently evasive and contradictory" in his testimony. (Id.) In a case such as this, where the ALJ has heard and observed many days of testimony by the complainant and other witnesses, such an impression is entitled to some weight. For this reason, and also because it arrives at the same conclusion based on its review of the content of the complainant's testimony, the commission agrees with and adopts the ALJ's assessment of the complainant's credibility. (7)
Having carefully considered the legal issues presented, the commission agreed with some significant parts of ALJ Theodore's analysis, but disagreed with other equally significant parts. This is reflected in the modifications to ALJ Theodore's Opinion which are specified above. The commission's reasons for its views on these issues are described below.
Discrimination because of disability -- ALJ Theodore began his analysis by opining that there are two distinct ways in which disability discrimination could occur. The first, he stated, was if the employer took an adverse action against an employee "due to a discriminatory animus against the employee because the employee was an employee with a disability". The second was if the employer took an adverse action against an employee "because of a performance deficiency caused by the employee's disability". ALJ Theodore's Opinion, p. 43. The commission agrees with ALJ Theodore that this is an appropriate way to approach the analysis of disability discrimination issues.
The basic prohibition against employment discrimination contained in the WFEA is set out in Wis. Stat. §§ 111.321 and 111.322. In § 111.322 the Act effectively defines "employment discrimination" as the taking of various kinds of adverse actions against an individual "because of" any prohibited basis described in § 111.321; in § 111.321, the Act directly prohibits covered entities from engaging in any act of employment discrimination as specified in § 111.322 "on the basis of" any of the protected characteristics described there. These provisions would clearly apply directly to a situation of the first kind ALJ Theodore referred to, in which a respondent's adverse actions against a disabled employee are motivated by the respondent's actual bias or animus against that employee specifically because of their status as an individual with a disability.
ALJ Theodore approached this claim by applying the prima facie case method of analysis. He concluded that the Complainant had made out a prima facie case. In this regard he specifically found that the Complainant had shown that he was an individual with a disability, that he was discharged, that he was qualified for the job in question, and that he was replaced by someone not known to the respondent to be an individual with a disability. ALJ Theodore continued by concluding that the respondent had satisfied its resultant responsibility to articulate a legitimate, non-discriminatory reason for its decision to discharge the Complainant, the reason articulated being the complainant's failures to meet a number of performance expectations, as most particularly described in the discharge letter (Complainant's Ex. 29). Turning to the next question, of whether the articulated reasons were shown to have been a pretext for discrimination, ALJ Theodore concluded that they were not. He specifically opined,
[T]he evidence reflects that management had a reasonable, good faith belief, based on their several years of observing and evaluating complainant's work, that his performance was unacceptable and that his discharge was called for. The mass of evidence respondent offered of errors in complainant's paperwork, lack of productivity, failure to follow respondent's policy, and inadequate performance of his steamfitter's duties and responsibilities, was called into question to some extent by complainant, but not to the extent that it raised any real inference that these matters were merely pretextual.
ALJ Theodore's Opinion, p. 48.
As noted above, ALJ Theodore expressly stated that his conclusion in this respect was affected by his view that the Complainant's credibility was "not good" and that the complainant's "overall lack of credibility" made it difficult to reach a conclusion that the respondent's version of events was so lacking in factual foundation as to suggest that it did not have a good faith belief in the validity of its point of view. ALJ Theodore's decision contained an extensive discussion of the reasons for his credibility assessment, and also for his judgment that the respondent's asserted reasons for discharging the Complainant were not pretextual. ALJ Theodore's Opinion, pp. 48-57. The commission found this discussion persuasive.
The substantial weight of the evidence persuades the commission that the complainant was a problem employee who for a variety of reasons, clearly including his attitude and just as clearly not including his disability, failed to improve his performance over the course of literally years of efforts by the employer. The commission does not believe that there was intentional discrimination against the complainant because of invidious bias against him arising from his disability, but that instead the respondent's decisions (including the discharge decision) were based on good-faith beliefs by the respondent that complainant was a poor performer.
Reasonable accommodation -- In addition to the basic prohibition against discrimination "because of" or "on the basis of" disability which is included within §§ 111.321 and 111.322, the Act also sets out "exceptions and special cases" relating to discrimination because of disability, in Wis. Stat. § 111.34. There, in subsection (1)(b), the statute provides that employment discrimination because of disability
includes refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business. Also, in subsection (2)(a), the statute provides that it is not employment discrimination because of disability to take adverse action against an individual if the individual's disability is reasonably related to his or her ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure. These provisions would potentially apply to the second kind of situation ALJ Theodore referred to, in which the employer took an adverse action against an employee because of a performance deficiency caused by the employee's disability.
In such situations, the question first presented is whether the individual's disability is "reasonably related to his or her ability to adequately undertake the job-related responsibilities" of his or her employment, within the meaning of § 111.34(2)(a). The respondent has the burden of proving that this is so. If this is proved, the question then presented is whether there was a refusal to reasonably accommodate the individual's disability within the meaning of § 111.34(1)(b). There are two elements to this question: whether a reasonable accommodation existed, and, if so, whether providing such an accommodation would have worked a hardship on the employer. ALJ Theodore's analysis focused primarily on the question of reasonable accommodation. ALJ Theodore's Opinion, pp. 58-81. (8)
The ALJ concluded, based on a reading of Geen v. LIRC and Stoughton Trailers, 2002 WI App 269, 654 N.W.2d 1, Crystal Lake Cheese Factory v. LIRC and Catlin, 2002 WI App 290 , 654 N.W.2d 286, Target Stores v. LIRC and Mary Crivello, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998), as well as a number of Personnel Commission decisions, that the respondent had the burden of proof as to both of these elements of the accommodation issue. ALJ Theodore's Opinion, p. 59. The commission believes that it is necessary to revise this part of the ALJ's analysis. ALJ Theodore wrote his decision over three years ago, in May, 2003. Since that time, the Wisconsin Supreme Court has spoken twice on the question of accommodation of disabilities and the allocations of burdens of proof in this area. Crystal Lake Cheese Factory v. LIRC and Catlin, 2003 WI 106, 664 N.W.2d 651; Hutchinson Technology v. LIRC and Roytek, 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343. Consideration of these decisions leads the commission to conclude that ALJ Theodore's reading is no longer viable.
In its Crystal Lake v. LIRC and Catlin decision the Supreme Court held that an employer has the burden of proving that an accommodation would pose a "hardship". 2003 WI 106 at ¶ 67. This left unresolved the issue of who had the burden of proof to establish that there was a "reasonable" accommodation (or, stated another way, that a proposed accommodation was "reasonable"). That issue was taken up in Hutchinson Technology v. LIRC and Roytek. In that case, the Court described what were in effect three distinct positions being taken by the parties. The employer had argued to the Court that the employee must prove whether an accommodation is reasonable or unreasonable, and that it is only when the employee can prove that a reasonable accommodation exists that the burden shifts to the employer to prove that such an accommodation would impose a hardship upon it. 2004 WI 90 at ¶ 25. The employee, for her part, had argued that the employer had the burden to prove that the requested accommodation was unreasonable or would impose a hardship upon it. 2004 WI 90 at ¶ 27. LIRC had argued that there was an "initial" burden of proof as to the reasonableness of an accommodation which fell on the employee, and that if the employee met that initial burden of proof, the employer was then required to show that the accommodation was unreasonable or that it would impose a hardship on it. 2004 WI 90 at ¶ 28.
In response to these arguments in Hutchinson, the Court first summarized its previous holding in Crystal Lake this way:
[In Crystal Lake we] stated that, as an initial matter, a plaintiff must show that he or she is an "individual with a disability" under Wis. Stat. § 111.32(8) and that his or her employer took one of the several actions listed in Wis. Stat. § 111.322. . . Once the employee meets the initial burden of proving that he or she has a disability, we stated that the employer then has the burden of proving a defense under Wis. Stat. § 111.34. . . . We stated that "§ 111.34(1)(b) and (2)(a) require an employer to prove that even with reasonable accommodations, the employee would not be able to perform his or her job responsibilities adequately or that, where reasonable accommodations would enable the employee to do the job, hardship would be placed on the employer."
2004 WI 90 at ¶ 32. The Court then said this about the way in which those principles from Crystal Lake were to be applied:
Applying our decision in Crystal Lake, and the cases we relied on for that decision, and according great weight deference to the LIRC decision, we conclude that HTI did not meet its burden in rebutting the initial burden satisfied by Roytek. HTI failed to establish that no reasonable accommodations could be made to enable Roytek to perform her job, or that it would experience hardship in making such accommodations. We further conclude that we see no substantial difference in the positions of LIRC and HTI regarding which party has the burden of proof with respect to reasonable accommodation. We conclude that the initial burden is on the employee to prove that a reasonable accommodation is available.
2004 WI 90 at ¶ 35 (emphasis added).
The Court's indication that it "[saw] no substantial difference in the positions of LIRC and HTI regarding which party has the burden of proof with respect to reasonable accommodation", followed by its use of the "initial" burden formulation which it had described as being part of LIRC's argument, leaves some uncertainty as to exactly what the nature of that burden is. However, it leaves no uncertainty about the Court's rejection of employee's argument -- which had been that "the employer had the burden to prove that the requested accommodation was unreasonable." The commission believes that the Court's decision makes untenable the conclusion drawn by ALJ Theodore that the employer had the burden of proof on the question of whether a reasonable accommodation was available.
This question of burden of proof is significant to the issue presented in this case by the ALJ's decision that there was a failure to accommodate in connection with the matter of Dr. Knueppel's suggestion about getting the Complainant a computer and scanner. The ALJ expressly declined to make a finding that the use of a computer and scanner would have been a reasonable accommodation for the Complainant. Thus, in his FOF 47, he stated:
The use of a computer and scanner might or might not have been an accommodation for complainant. This question was never resolved due at least in part to management's failure to follow up on Dr. Knueppel's September 21, 1999, letter (R-431) as set forth above.
(emphasis added). His discussion of this matter in his Opinion also makes it clear that he believed there was insufficient evidence to make a finding one way or the other on the question of whether providing a computer and scanner to the complainant would have been effective in remedying any of the performance problems relating to the completion of forms and paperwork which the complainant was having:
There is insufficient evidence in the record to make a finding that the accommodation which was not provided would not have helped complainant to some extent with his performance problems . . .
ALJ Theodore's Opinion, pp. 82-83 (emphasis in original). The commission agrees with the ALJ that the evidence was insufficient on this point. That lack of adequate evidence one way or the other concerning the potential effectiveness of use of a computer and scanner in affecting performance deficiencies by the complainant is the reason that, as the ALJ recognized, it was not established that the use of a computer and scanner was a reasonable accommodation.
It was because he concluded that the respondent bore the burden of proof on the question of whether there was a reasonable accommodation available, that the ALJ decided that the consequences of the lack of proof that a computer and scanner would have been a reasonable accommodation fell on the respondent:
[S]ince respondent had the burden of proof on this issue, this leads to the conclusion that the failure of accommodation was causative with regard to complainant's performance issues that were the basis for his discharge.
(Id.) As noted above, however, the conclusion of the Wisconsin Supreme Court in Hutchinson Technology v. LIRC and Roytek was that "the initial burden is on the employee to prove that a reasonable accommodation is available." The consequences of the insufficiency in the record on the question of whether a computer and scanner would have been a reasonable accommodation for the complainant, must therefore fall on the complainant, in the form of a decision that he did not meet his initial burden to prove that a reasonable accommodation was available.
The ALJ's decision to make a finding of liability against the respondent in connection with the matter of the computer and scanner as a possible "reasonable accommodation" rested not only on his view as to where the burden of proof lay on that question, but also on his acceptance of the notion that reasonable accommodation requires engaging in an "interactive process".
The "interactive process" analysis originated in a regulation adopted by the EEOC to implement the provisions of the federal Americans with Disabilities Act. 29 C.F.R. § 1630.2(o)(3) (1995). Federal courts deciding cases under the ADA have looked to this regulation in holding that an employer must engage in an "interactive process" with the employee to determine what an appropriate accommodation would be. See, e.g., Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). The requirement to engage in an "interactive process" regarding the identification of a reasonable accommodation imposes on the employer a "duty to consult with the employee to determine the precise job-related limitations imposed by the disability and how those limitations could be overcome with a reasonable accommodation." Lenker v. Methodist Hospital, 210 F.3d 792, 797 (7th Cir. 2000). ALJ Theodore's decision rested on his conclusion that if a respondent fails to engage in such an "interactive process" it has failed to satisfy its responsibility to provide reasonable accommodation and has thus violated the Wisconsin Fair Employment Act.
The ALJ found that the respondent failed to engage in an "interactive process" by not following up on the comment about use of a computer and scanner made by Dr. Knueppel in her letter of September 21, 1999, and that "by not engaging in an interactive process with Dr. Knueppel after she made the suggestion, [respondent] (9) violated the WFEA's accommodation requirement." ALJ's Theodore's Opinion, p. 78. However, as noted above, the ALJ also expressly declined to make a finding that the use of a computer and scanner would have been a reasonable accommodation for the Complainant:
The use of a computer and scanner might or might not have been an accommodation for complainant. This question was never resolved due at least in part to management's failure to follow up to Dr. Knueppel's September 21, 1999, letter (R-431) as set forth above.
ALJ Theodore's FOF 47. Thus it is clear that the ALJ concluded in substance and effect that anything constituting a failure to engage in an interactive process was, in itself, a per se violation of the Act.
However, under prevailing interpretations of the ADA's "interactive process" requirement in federal court, an employer's failure to engage in an interactive process is not sufficient on its own to establish liability. Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir., 2000). Instead, the employee must show that if the defendant had engaged in the process, together they could have identified a reasonable accommodation. The Rehling court's interpretation has been widely accepted and followed. One court has explained it this way:
[A]lthough the vast majority of circuits that have addressed the issue have found the interactive process to be mandatory. . . , no case that this Court is aware of has found the interactive process to be an independent source of liability irrespective of whether a reasonable accommodation was actually offered (or, conversely, irrespective of whether one was actually possible). Rather, the failure to engage in an interactive process is relevant only where it leads to the more fundamental failure to provide an accommodation. See Kvorjak v. Maine, 259 F.3d 48, 52 (1st Cir. 2001) (noting that "courts have construed the regulation as imposing various levels of obligation," but stating that at a minimum, liability depends on a showing that had the interactive process occurred, an acceptable accommodation could have been reached). EEOC v. Yellow Freight Sys., Inc., 2002 U.S. Dist. LEXIS 16826, 14 Am. Disabilities Cases. (BNA) 1223 (S.D.N.Y. Sept. 4, 2002) (emphasis added)
For these reasons, the commission concludes that the ALJ's reliance on the respondent's supposed failure to engage in an "interactive process" in regard to exploring the possibility of a computer and scanner as a reasonable accommodation for the complainant, was in error. Application of the "interactive process" analysis here would fail to support a finding of liability because ultimately the record is insufficient to establish that pursuit of such an "interactive process" with respect to the matter of the computer and scanner would have led to identification of a reasonable accommodation for the complainant.
Apart from the matter of the computer and scanner, the ALJ concluded that the other things contended for as potential accommodations (a large number calculator, larger work orders, a larger dry-erase board, a larger desk calendar, placing complainant on a medical leave, or extending clemency and forbearance to him with regard to his performance deficiencies) were either not reasonable accommodations because it was not established that they would have been effective in ameliorating the complainant's performance deficiencies, or would have imposed a hardship on the respondent. ALJ Theodore's Opinion, pp. 78-81. The commission agrees with this part of ALJ Theodore's analysis.
ALJ Theodore also found and concluded that even if it had not been for what he determined to have been the respondent's unlawful failure to engage in an interactive process concerning the possible accommodation of a computer and scanner, the complainant would still have been discharged by the respondent, for lawful, non-discriminatory reasons involving poor performance, so that it thus satisfied its obligation under
Hoell v. LIRC, 186 Wis.2d 603, 522 N.W.2d 234 (Ct. App. 1994).
ALJ Theodore's Opinion, pp. 81-96. As noted above the commission does not agree with ALJ Theodore's conclusion that the record established
any failure of reasonable accommodation by the respondent, and therefore the commission does not find it necessary to approach the
Hoell issue as did the ALJ. However, the commission would note that it fully agrees with the specific analysis of the ALJ, at pp. 84-96 of his Opinion, in which he discusses the complainant's arguments that the respondent's asserted non-discriminatory reasons were not legitimate, and the respondent's arguments that its reasons were valid and
bona fide. As the ALJ noted, these arguments (which he was considering in order to decide the
Hoell analysis) "cover a lot of ground similar to the disparate treatment/pretext" issue in the case.
Conclusion -- The commission generally agrees with the factual findings of ALJ Theodore, including his assessment of credibility and his inferences about the subjective motives and intent of the representatives of the respondent whose decisions and actions were challenged here. The commission also agrees with the legal analysis of the ALJ insofar as it concerns the question of whether the respondent engaged in intentional discrimination against the complainant based on invidious bias against him because he was an individual with a disability. Finally, the commission also agrees with the ALJ that the record did not establish a violation of the reasonable accommodation requirement with respect to the matters of a large number calculator, larger work orders, a larger dry-erase board, a larger desk calendar, placing complainant on a medical leave, or extending clemency and forbearance to him with regard to his performance deficiencies.
The commission disagrees with the ALJ that there was a violation of the reasonable accommodation requirement with respect to the matter of a computer and scanner. The ALJ found and concluded that the record did not establish whether a computer and scanner would have been an effective -- and thus reasonable -- accommodation, but because he also concluded that the respondent bore the burden of proof on this point (i.e., the burden of proving that a computer and scanner would not have been a reasonable accommodation), and because he concluded that the respondent violated a duty to engage in an interactive process to explore that point, there was a violation of the Act. The commission disagreed with this because failure to engage in an interactive process gives rise to a violation only if there was a reasonable accommodation which such a process could have led to, and (as the ALJ agreed) it was not established that a computer and scanner would have been such a reasonable accommodation, and it was for the complainant, rather than the respondent, to establish that.
For the foregoing reasons, no violation of the Fair Employment Act was made out.
Finally, the petition for review must be dismissed insofar as it purports to seek commission review of the ALJ's decision on the Public Employee Safety and Health Law and State Employee Whistleblower Law issues because the commission has no statutory authority to conduct such review.
NOTE: The modifications made by the commission to the ALJ's findings of fact were for the most part intended to correct minor and clearly unintentional errors. The only modification which reflected a substantive disagreement with the ALJ related to his Finding of Fact No. 47. That finding stated:
47. The use of a computer and scanner might or might not have been an accommodation for the complainant. This question was never resolved due at least in part to management's failure to follow up to Dr. Knueppel's September 21, 1999, letter (R-431) as set forth above.
A finding that something "might or might not" have been the case, is at best an observation that the evidence in the record does not establish that thing. The importance of such an observation is entirely dependent on the question of which party's case depends on that thing being established, or, to put it another way, which party bore the burden of proof that the thing was established. As discussed above, the commission disagreed with the ALJ's views on the allocation of the burden of proof on this question.
In addition, the ALJ's statement that the matter was never resolved because of management's failure to follow up on Dr. Knueppel's letter, leaves some ambiguity as to whether it concerns the matter of the parties resolving the question at the time the events were unfolding, or the state of the evidence eventually offered at hearing. The importance of the second question is that if it is not ultimately established that something would have been a reasonable accommodation, then the fact that the parties did not discuss and explore that question when the events were unfolding loses its significance. This is precisely the teaching of Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir., 2000).
Considering the ALJ's decision as a whole, it is clear that he considered the evidence in the record to be insufficient to establish that providing a computer and scanner would have been effective at ameliorating the errors and shortcomings in complainant's performance, and thus insufficient to establish that it would have been a reasonable accommodation. This was implicit in his statement in Finding of Fact No. 47 that use of a computer and scanner "might or might not" have been an accommodation for the complainant. The ALJ also noted in his Opinion, that Dr. Knueppel qualified her comments about the possible use of a computer and scanner by saying she was not certain whether this particular accommodation would be effective, and that she stopped short of reaching any conclusions about the effectiveness of such an accommodation. The commission agrees.
Notably, the ALJ quite conspicuously rejected the complainant's arguments with regard to a number of other possible accommodations that were of essentially the same nature as the possible computer/scanner accommodation. He did so because he concluded that the complainant was not credible in asserting that he needed the benefit these accommodations would bring, which was magnification of documents and text he was working with. Thus, the ALJ stated that "there was nothing in the record to establish that [a large-number calculator] would have been an effective accommodation except complainant's testimony, and the ALJ does not find that credible, in part because of complainant's use of an extremely small font size in the word processing he did, and the very small handwriting he used on his calendars". ALJ Theodore's Opinion, p. 78. The same considerations were involved in the ALJ's rejection of the claim that enlarged work orders, a large "dry erase" board or large calendar would have been a reasonable accommodation for the complainant. (Id, at p. 79.) The point of the possible accommodation of a computer and scanner was the same as the point of these other possible accommodations. Presumably, the idea was that a computer with a scanner could possibly assist the complainant if he scanned documents and then consulted digital images of the documents on his computer, on which he could increase the magnification. The ALJ's rejection on credibility grounds of the complainant's claim that he needed the benefit of magnification which these other possible accommodations would bring suggests that, but for the matter of his views on the "interactive process" failure, the ALJ would also have considered it not established that the computer and scanner was a reasonable accommodation.
For all of the foregoing reasons, the commission agreed that the evidence was insufficient to establish that a computer and scanner would be a reasonable accommodation. Because of this, and because of its different view from that of the ALJ on the legal question of where the burden of proof lay in that regard, the commission modified Finding of Fact No. 47 as reflected above.
Jason A. Kunschke, Attorney for Complainant
Kathryn R. Anderson, Attorney for Respondent
Appealed to Circuit Court. Affirmed March 14, 2008.
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(1)( Back ) Pursuant to 2003 Wis. Act 33, the Personnel Commission was eliminated effective July 23, 2003. At that time, its program responsibilities with respect to "appeals" (challenges to personnel transactions governed by the civil service code) were reassigned to the Wisconsin Employment Relations Commission, and its program responsibilities with respect to "complaints" (claims under the Wisconsin Fair Employment Act, the Public Employee Safety and Health Law and the State Employee Whistleblower Law) were reassigned to the Equal Rights Division of the Department of Workforce Development.
(2)( Back ) The decision to separate the matter into two cases had to do with different statutory timelines for the processing of complaints under the Public Employee Safety and Health Law.
(3)( Back ) The Public Employee Safety and Health Law matter, which at the Personnel Commission had been case number 99-0209-PC-ER, was assigned case number CR200303159 at the ERD. The State Employee Whistleblower Law matter, which had been part of case number 99-096-PC-ER at the Personnel Commission, was assigned ERD case number CR200303158. The claim under the WFEA, which had also been part of case number 99-096-PC-ER at the Personnel Commission, became ERD case number CR200303157.
(4)( Back ) Minor changes had been made to this version of the decision. Theodore had drafted the decision using the word "commission", as would be appropriate for a decision which was going to be issued by the Personnel Commission. The initial, "non-final" copy issued by the ERD was a verbatim copy of Theodore's decision. However, in the final version the term "administrative law judge" had been substituted for "commission" in a number of places.
(5)( Back ) Since any petition for judicial review of the administrative law judge's decision on the Public Employee Safety and Health Law and State Employee Whistleblower Law claims will be venued in the same court as any petition for judicial review of the commission's decision on the Fair Employment Act claim, there would not seem to be any impediment to this being undertaken in a single unified review proceeding in court. However, this is of course ultimately a matter to be determined by any court in which such proceedings are brought.
(6)( Back ) The hearing transcript is 3,179 pages long. Around 630 exhibits were marked for identification, of which around 530 were received into the record; these comprise well over 1,000 pages of documents. A significant majority of the evidence, both testimonial and documentary, was presented by the respondent. In this regard, the commission notes the observation made by ALJ Theodore in his Opinion, to the effect that "[w]ith benefit of hindsight, respondent's mass of evidence pertinent to complainant's performance issues reached the point of being cumulative." ALJ Theodore's Opinion, p. 50.
(7)( Back ) In his brief, the complainant referred to the negative assessment of his credibility which is reflected in the decision, and then as if to question the validity of this assessment, he referred to the fact that ALJ Brown was not the ALJ who presided at the hearing. The commission rejects any argument that the assessment of credibility in the decision was flawed because it was made by someone other than the presiding ALJ. As noted above, except for the section addressing attorney's fees, the decision which went out over the name of ALJ Brown was in fact the decision which had been issued by ALJ Theodore. It is clear that Theodore's decision was issued by the ERD over Brown's name simply because of the unique procedural posture of the case, in which a matter pending at one agency necessarily had to be transplanted into the other in a form which meshed with the procedures of that agency. Notwithstanding the name on the last page, the voice speaking in the decision is clearly that of Theodore, the person before whom the testimony was given.
(8)( Back ) The Complainant was affirmatively taking the position that his disability did affect his performance, causing a variety of problems for him in meeting the respondent's expectations.
(9)( Back ) The ALJ actually uses the word "complainant" here in what is clearly an inadvertent error.