GAIL DONNETTA KING, Complainant

CITY OF MADISON, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission 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 December 21, 2007
kinggai . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

On August 19, 2004, one year into her disability layoff period, King presented the City with a medical restriction stating she could return to work but was "permanently unable to drive bus for medical reasons." Consistent with the ordinances/agreement, and with its typical practice, the City began the displacement process, identifying positions in the Madison Metro department, King's bargaining unit, in the same or lower pay range than King's transit operator position, in which the incumbent was less senior than King. The City identified 10 positions (exhibit #R-9), 6 transit operator (bus driver), 1 transit utility (bus driver) 1 mechanic, 1 transit operator tech (paint and body technician), and 1 transit service worker. King was not permitted to displace the incumbents of any of these positions.

On November 23, 2004, King's treating physician, noting that King was experiencing a high-risk pregnancy, recommended that King do no climbing, lifting or carrying more than 25 pounds, overhead work, pushing or pulling over 50 pounds, or inhale any toxic fumes.

King applied for five vacant administrative/clerical positions with the City in the Madison Metro and other units. King was not appointed to any of these positions because, for four, her exam score was not high enough for her to be certified for an interview, and, for the one for which she was interviewed, she was not considered the most qualified candidate.

After the expiration of the 18-month disability layoff period, consistent with the pertinent provisions of the ordinances/agreement, King's employment was terminated.

King's basic contention is that the disability leave/disability layoff provisions of the Madison General Ordinances and the applicable collective bargaining agreement, and the manner in which they were applied to her, violate the reasonable accommodation provisions of the WFEA.

Generally, although an employer has the right to set its own employment rules, such rules do not exist in a vacuum but "must bend to the requirements of the WFEA." Hutchinson Technology, Inc. v. LIRC et al., 2004 WI 90, 273 Wis.2d 394, 682 N.W.2d 343 (2004).  However, as discussed below, such "bending" does not require an employer, as a reasonable accommodation, to abandon a legitimate, non-discriminatory, merit-based recruitment and selection system.

King first argues that the City's failure to continue her disability leave longer than the 6-month period specified in the ordinances/agreement violated the WFEA's reasonable accommodation requirement.

As the commission stated in Greenwood v. Ross Furniture, ERD Case No. CR200001517 LIRC Dec. 30, 2004), relying upon Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998), although a temporary leave to permit medical treatment over a relatively short period of time may be a reasonable accommodation, a period of indefinite medical leave would not. Not only did the period of King's inability to work extend over a period of nearly 18 months, not a relatively short period of time, but, at the time King's 6-month disability leave ended on August 25, 2003, the medical information available to the City indicated that she would be unable to work "until indefinite time." See, also, 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).

The WFEA did not, as a result, require the City to extend the period of King's disability leave.

King next argues, at least by implication, that the City's failure to permit her to displace into a Transit Service Worker (TSW) position in the Madison Metro unit violated the WFEA's reasonable accommodation requirement.

The duties and responsibilities of this TSW position included bus driving, parking, service and maintenance, and cleaning; and computer dispatch/operator assignment. The minimum requirements for appointment to this position include six months of vehicle service/maintenance experience, a commercial drivers license, and computer-aided dispatch or equivalent knowledge. In August of 2004, when King was released to return to work, she was restricted from driving a bus, and, due to her pregnancy, from climbing, lifting or carrying more than 25 pounds, performing overhead work, pushing or pulling over 50 pounds, or inhaling any toxic fumes. In addition, the record does not show that King had any vehicle service/maintenance experience, or computer-aided dispatch or equivalent knowledge. As a result, King would presumably have been unable to perform any of the duties of this position at the time the displacement process was initiated. Even if it could be inferred that King could have performed some of the cleaning work at that time, and most of the cleaning work after her pregnancy ended in March of 2005, cleaning was only one of five basic components of the position. As a result, although modification of a position's duties can constitute a reasonable accommodation (Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis.2d 200, 664 N.W.2d 651 (2003)), modification to this extent is not required. See, Kasuboski v. Fonda Group, Inc., ERD Case No. CR200100645 (LIRC April 30, 2004)(WFEA does not require as reasonable accommodation the modification of position to eliminate duties to which employee devotes 80% of work time); Parker v. Dane County, ERD Case No. CR199902779 (LIRC Nov. 10, 2003), aff'd sub nom., Dane Co. v. LIRC et al., Case No. 03-CV-3726 (Wis. Cir. Ct. Dane Co. July 2, 2004)(modification of assigned duties reasonable accommodation where employee able to perform most duties with no accommodation and nearly all duties with accommodation).

King further argues that the fact that the ordinances/agreement did not permit her to displace workers in other bargaining units was a failure of reasonable accommodation.

However, the displacement of another worker has not been held to be a reasonable accommodation under the WFEA. See, Macara v. Consumer Co-op of Walworth Co., ERD Case No. 8802872 (LIRC Feb. 14, 1992)(unreasonable and a hardship to require employer to create a new position for, or to discharge another employee to make position available for, disabled employee).

King's next argument is that the failure of the City, during the period of her disability layoff, to appoint her to vacant positions without requiring her to compete for these positions, violated the reasonable accommodation requirement of the WFEA.

Although McMullen v. LIRC et al., 148 wis.2d 270, 434 n.W.2d 830 (Wis. App. 1988) held that transfer to a vacant position may constitute a reasonable accommodation, the court clarified that this form of accommodation was not an unlimited one. In particular, the court stated:

Our conclusion that the duty to accommodate may involve the transfer of an individual from one job to another does not mean that the employer must do so in every case. The statute requires only a reasonable accommodation. What is reasonable will depend on the specific facts in each individual case. Some considerations that may be considered in determining whether a transfer is a reasonable accommodation is the relationship between the two positions, their nature and physical location, and the handicapped individual's ability to perform the responsibilities of the second position....

This implies that the positions must have more in common than the fact they are with the same employer. Here, King's transit operator position was essentially unrelated to any of the vacant administrative/clerical positions for which she applied.

Moreover, the City was not required, in order to meet its duty of reasonable accommodation under the WFEA, to disregard the merit-based recruitment and selection system mandated by its ordinances and included in its contract with Teamsters Local 369, by appointing King to a vacant position for which she was not the most qualified candidate.

Given the lack of guidance from prior commission or state court decisions in regard to this particular issue, it is useful to review federal ADA decisions, particularly given the parallel between the ADA provision (42 U.S.C. § 12111(9)(B)), and the McMullen court's holding, that reassignment/transfer to a vacant position for which an employee is qualified, may constitute a reasonable accommodation; and the Hutchinson Technology court's holding that there is essentially no difference between the WFEA's "hardship" and the ADA's "undue hardship."

The decision of the 7th Circuit in Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667 (7th Cir. 1998) contains not only a useful legal analysis of this issue, but also a persuasive public policy analysis. In rejecting the employer's assertion that, in order to constitute a reasonable accommodation, reassignment must be to an essentially identical position, the court stated as follows:

We find this reading of the statute too limited. Nevertheless, we agree...that the duty to reassign does not extend in every ADA case to virtually every other job in a company,... Nothing in the ADA requires an employer to abandon its legitimate, nondiscriminatory company policies defining job qualifications, prerequisites, and entitlements to intra-company transfers. See, e.g., Cochrum, 102 F.3d at 912-13 (employer not required to violate the provisions of a collective bargaining agreement to reassign a disabled employee pursuant to the ADA), citing Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996), cert. denied, 117 S. Ct. 1318, 137 L. Ed. 2d 480 (1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997), cert. denied, 118 S. Ct. 1050, 140 L. Ed. 2d 113, 1998 U.S. LEXIS 963 (1998) (even if there were no CBA in place, the ADA does not require an employer to reassign in violation of a bona fide seniority system). See also Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 79, 53 L. Ed. 2d 113, 97 S. Ct. 2264 (1977) ("We agree that neither a collective bargaining contract nor a seniority system may be employed to violate a statute, but we do not believe that the duty to accommodate [under Title VII] requires TWA to take steps inconsistent with the otherwise valid agreement.")....

Courts have recognized a variety of legitimate job prerequisites that an employer may establish consistently with nondiscrimination laws.... In fact, we have been unable to find a single ADA or Rehabilitation Act case in which an employer has been required to reassign a disabled employee to a position when such a transfer would violate a legitimate, nondiscriminatory policy of the employer, see Duckett, 120 F.3d at 1225 (also failing to find such a case), and for good reason. The contrary rule would convert a nondiscrimination statute into a mandatory preference statute, a result which would be both inconsistent with the nondiscriminatory aims of the ADA and an unreasonable imposition on the employers and coworkers of disabled employees....

Finding the rationale stated in the Dalton decision persuasive, the commission holds that the City was not required, in order to satisfy the WFEA, to disregard its competitive, merit-based recruitment and selection process created through ordinance and collective bargaining agreement, in order to accommodate King's disability.

It should be noted that King did not even attempt to rebut witness Olson's testimony that the successful candidates for the administrative/clerical positions were better qualified than she was; and did not allege in her charge that she was not hired for these positions because of disability-based disparate treatment.

It is not clear whether King is alleging that the City was required to permanently assign her to light duty when she was released to return to work with permanent restrictions in 2004. However, the record shows that, although the City had certain temporary positions designated as light duty positions, it reserved these positions for employees on workers compensation. The City was not required, in order to meet the reasonable accommodation requirements of the WFEA, to convert one of these temporary positions to a permanent position for King, rendering it, as a result, unavailable for the purpose for which it was created. This would, in essence, have resulted in the creation of a new position for King. See, Dalton, supra., ("The ADA does not compel an employer to reduce the number of bona fide temporary jobs it has set aside in conjunction with a program like the one contemplated by the state worker's compensation statute and to convert them to permanent positions for its disabled employees....To hold otherwise would be to require [an employer] to create new full-time positions to accommodate its disabled employees, a course of action not required under the ADA.") See, also, Macara, supra., (unreasonable and a hardship to require employer to create a new position for, or to discharge another employee to make position available for, disabled employee); Greenwood, supra.

King finally asserts that those provisions of the City's administrative procedure manual and ordinances, and the collective bargaining agreement, at issue here, were not correctly interpreted and applied to her situation. However, King failed to prove this. Her primary contention in this regard relates to the fact that, contrary to the way in which it was interpreted and applied by the City, the accommodation requirement set forth in provision 2-22 of the City's administrative procedure manual is not specifically limited by its terms to employees on disability leave but not on disability layoff. However, the City offered the unrebutted expert testimony of Brad Wirtz, a labor relations specialist, that the provision was not intended to apply to employees on disability layoff, and the City had consistently interpreted and applied this provision in the manner in which it was applied to King.

The commission notes that certain of the information referenced by King in her appeal to the commission is not in the hearing record, and may not, as a result, be relied upon by the commission in reaching its decision.

cc: Attorney Steve C. Zach

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