SANDY L ROUSSEAU, Complainant

APPLETON PAPERS INC, 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 3, 2010
rousssa . rsd : 125 : 9 

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The respondent employed Sandy Rousseau beginning in January 2005. After Rousseau passed medical screening the respondent placed her in the position of Extra Crew (a.k.a. Floater), a position in which all new hires are placed. The purpose of the Floater position is to fill the business needs of various departments. Depending on those business needs, during any given week Floaters could be assigned to any number of positions including 1643 Doctor Rewinder, 2280 Rewinder, 3780 Rewinder, 0080 Kensington Warehouse (Unloader) and 0035 Material Handler. Among other things, Floaters in these positions must be able to perform the following tasks: Lifting a maximum of 75 pounds individually; lifting more than 55 pounds more than 10 times per day; lifting more than 25 pounds below the knees or above the shoulders; pushing or pulling with an initial force of more than 50 pounds; and squatting and kneeling.

Rousseau was represented by the Paper, Allied-Industrial, Chemical and Energy Workers International Union, AFL-CIO, CLC, Local No. 7-0469, which had a collective bargaining agreement with the respondent.

In September 2005, due to a pre-existing knee problem related to an injury at her previous employer, Rousseau was completely unable to perform any of the job duties associated with the Floater position and went out on a leave of absence. While out on leave, Rousseau received worker's compensation from the worker's compensation carrier of her previous employer.

Rousseau had a second surgery on her knee in January 2006. Rousseau was cleared to return to work on light duty in the spring of 2006, but she was informed by the respondent that there was no work for her on light duty. However, even had there been light duty work for her, Rousseau would have had very limited time available to work as she was in a therapy and work hardening program. Rousseau continued to receive worker's compensation from the worker's compensation carrier for her previous employer.

In August 2006, Rousseau underwent a Functional Capacity Examination (FCE). In a letter dated August 30, 2006, Rousseau's doctor, Dr. Mologne, concluded that Rousseau had permanent restrictions. Dr. Mologne wrote: "Based on the FCE, with restrictions in the frequent (66% of the work day), these would be: lifting of 25 pounds (occasional 35 pounds), carrying of 25 pounds (occasional 35 pounds) occasional activities that would require kneeling, crawling, squatting, crouching, or twisting-pivoting."

Rousseau presented Dr. Mologne's letter to the respondent in September 2006, but she was denied a return to work with the restrictions cited by Dr. Mologne because the restrictions prevented Rousseau from performing the job duties required under the Floater position. Rousseau suggested that the respondent provide her a job within the Floater position driving a fork lift. However, the respondent did not have a fork lift driver position. Fork lift driving was just one component of the Material Handler position, which Floaters provided back-up support for from time to time. Also, individuals in the Material Handler position performed duties that included lifting pallets that may weigh up to sixty pounds, getting on and off the fork lift multiple times a day, twisting and pivoting, and turning around to see backwards to haul loads. Further, the respondent believed that Rousseau's request would have violated the collective bargaining agreement because what Rousseau was essentially requesting was that the respondent create a permanent position for her limited only to fork lift driving, a position which did not exist under the collective bargaining agreement. In addition, when Material Handler positions did become available, they tended to go to employees with 20-30 years of seniority, and Rousseau had less than two years' seniority.

The collective bargaining agreement between the respondent and the union provided, in relevant part, that a "leave of absence shall not be for a period exceeding the employee's length [of] service or twenty-four (24) months (whichever is greater)."

In June 2007, the respondent's Human Resources Manager, Bob Pagel, reviewed the status of all individuals who were out on leave at that time to assure compliance with the collective bargaining agreement. Rousseau was considered to have approximately nine month's seniority (January 2005 to September 2005). The practice put in place by the previous HR manager had been to allow employees a leave of absence for the length of the employee's seniority up to a maximum of 24 months. Pagel concluded based on the respondent's interpretation of the collective bargaining agreement that Rousseau had exhausted her available leave and therefore the respondent terminated Rousseau's employment effective June 30, 2007.

The union filed a grievance over Rousseau's termination. The union believed that the respondent had misinterpreted the collective bargaining agreement and that the past practice by the previous HR manager was incorrect. At step 4 of the grievance process, Pagel concluded that the union was correct and that the respondent had misinterpreted the contract. Accordingly, the respondent agreed that Rousseau was entitled to a leave of absence not to exceed 24 months and reinstated Rousseau. In a memorandum dated August 8, 2007, regarding the 4th Step grievance it was stated that: "Sandy's Leave of absence began on September 17th, 2005 and will be terminated as of September 17, 2007. Sandy will be rehired until that time; termination date of September 17th, 2007 unless Sandy is able to return to work and perform the essential functions of her job with or without reasonable accommodations prior to that date."

Subsequent to the August 8, 2007 memorandum, Rousseau had another Functional Capacity Examination, which was reviewed by the respondent's medical advisor, and Rousseau was returned to work with no restrictions per information that was provided by a Dr. Harrison.

Rousseau returned to her position as Floater in October 2007, but shortly after her return she sustained a work injury when something fell on her foot. Rousseau went out on a leave of absence, after which she returned to work and was assigned light duty work. Rousseau continued be on light duty work as of September 19, 2008, the date of the probable cause hearing in this matter.

Rousseau appeals from the ALJ's decision, which concluded that there is no probable cause to believe that the respondent discriminated against Rousseau on the basis of disability by refusing to reasonably accommodate a disability or by terminating her employment.

Rousseau's objections to the ALJ's decision, however, are limited to the ALJ's determination that there is no probable to believe that the respondent discriminated against Rousseau on the basis of disability by refusing to reasonably accommodate a disability.

Rousseau's argument appears to be that she could have been working during the period from September 2006 to September 2007 because light duty work was available within her restrictions and because the respondent did not allow her to present a new Functional Capacity Examination until September 2007.

At the hearing, Rousseau presented a September 2007 email (Exhibit B, p. 3) which indicated that at some point prior to that, for five months the respondent had individuals, including those on light duty and summer help, working on a project to re-work a sheet product that had been produced with smudging due to a machine malfunction. However, the evidence showed that this work involved lifting of 50 to 60 pounds, which was outside of Rousseau's work restrictions. (T 86) Further, the evidence showed that the respondent reserved light duty work for individuals who were on worker's compensation and that there were some individuals doing this job who were on worker's compensation that were able to do it. (T 72-73) As noted by the commission in King v. City of Madison (LIRC, 12/21/07), "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. ..."

At the hearing, Rousseau also asserted that she was told by Meredith King, a nurse for the respondent, Tim Wolf, the Safety Director for the respondent, and Pagel that the respondent would not accept a new Functional Capacity Examination. Pagel testified, however, contrary to Rousseau's assertion, that he did not recall talking to Rousseau about her wanting to come back to work, that the respondent never prevented Rousseau from seeking a new medical examination after her 2006 examination with Dr. Mologne, and that in his discussions with King and Wolf he consistently communicated with them that if Rousseau's restrictions changed where she could do the essential functions of the job, that would be great, and that the respondent would also want to verify through a function capacity examination, or through another party, what has caused the change. (T 75, 78, 81) Furthermore, Rousseau herself testified that after the termination of her employment (June 30, 2007), she went to Dr. Mologne (her own doctor) and asked if she could have a re-evaluation and that Dr. Mologne told her that "it wasn't even a year and that he did not want to re-evaluate at that point." (T 45)

For the above-stated reasons, the commission has affirmed the decision of the administrative law judge.

cc: Attorney Sara Bolden

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