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


TRIENDA CORP, Respondent

ERD Case No. CR200503150, EEOC Case No. 26G200501971C

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.


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

Dated and mailed July 27, 2007
rutheju . rsd : 125 : 9

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


Julia Rutherford petitions for a review of the ALJ's decision, which found no probable cause to believe that the respondent violated the WFEA's prohibition against discrimination on the basis of disability when it terminated her employment because the respondent showed that her disability was reasonably related to her ability to adequately undertake the job-related responsibilities of her employment and because Rutherford did not show probable cause to believe that the respondent had violated the WFEA by refusing to reasonably accommodate a disability.  (1)

The respondent is a manufacturer of thermoformed plastic products. Rutherford was employed by the respondent as a Finisher in November of 2003, when she injured her right arm and shoulder. Rutherford's job as a Finisher required, among other things, that she frequently reach with her hands and arms, regularly lift and/or move up to 25 pounds and frequently lift and/or move up to 10 pounds. Most of the parts she lifted averaged 20-25 pounds. Those that weighed less needed to be lifted over her head and shoulders. Over the next 12 months Rutherford's medical doctors placed her on various weight-lifting and limited-use restrictions with respect to her right arm. During this period the respondent accommodated Rutherford by moving her around to various jobs to accommodate her physical limitations. On November 4, 2004, Rutherford's doctor placed her on the following permanent restrictions: No work above chest level, no overhead reaching with her right hand, and avoidance of repetitive use of her right arm to shoulder level-limit it to 10-minute periods per hour. Given these limitations on the use of her right arm, Rutherford could not perform the job of finisher adequately by herself.

After determining that Rutherford would not be able to adequately perform the job of Finisher due to her medical restrictions and that there were no open positions for which she was qualified and physically able to perform, on November 10, 2004, the respondent's human resources manager, Herschel Scott, informed Rutherford that the respondent was terminating her employment.

In her petition for review, Rutherford asserts that she is very dissatisfied with the ALJ's decision and then she goes on to make a number of assertions, most of which do not serve as a basis for finding probable cause to believe the respondent discriminated against her on basis of disability, such as her lack of having an attorney and, apparently, her feeling that the respondent should have entered into a settlement agreement with her regarding this matter.

As the ALJ indicates in the Memorandum attached to his decision, Rutherford's primary contention is that she feels the respondent was obligated to have created a position for her. However, as the ALJ points out, it is beyond the limit of an employer's duty to create a position for a disabled employee as an accommodation, citing Rauls-Hepp v. J.L. French Corporation (LIRC, 09/30/05). Further, as noted by the ALJ, other possible modifications such as modifying Rutherford's job as a Finisher or transferring her to another open position, were not shown to exist. Rutherford's proposal of modifying her job by assigning someone to help her with the lifting would not have been a reasonable accommodation because lifting of objects was too integral to the job of finisher to be separated from the job and assigned to someone else, and, further, because the evidence indicated that such an accommodation would have caused an inefficiency in the position because Rutherford's need for assistance would have been so frequent that it would have essentially required that an employee be permanently stationed to assist her. Also, with respect to transferring her to another open position, there was no evidence that another position existed for which Rutherford was qualified and physically able to perform as of the time her restrictions became permanent on November 4, 2004.

Rutherford's petition does reference the fact that there was a material handler position available in October of 2004, which she felt she could have performed. However, the evidence shows that at the time this position was available Rutherford was considered to have a temporary condition, and the hope at that time, by both Rutherford and the respondent, was that she would recover with the ability to return to her job as a finisher. T. 62, 103; Exhibit #2.

Accordingly, the commission has affirmed the administrative law judge's decision in this matter.


cc: Attorney Robert A. Mich, Jr.

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(1)( Back ) The ALJ's decision also found no probable cause to believe that the respondent violated the WFEA by terminating Rutherford's employment because she opposed a discriminatory practice under the WFEA, but nothing in Rutherford's petition for review suggests that she is in disagreement with this finding, and, in any case, this finding by the ALJ is fully supported by the record.


uploaded 2007/07/30