WALTER J AUSTIN, Complainant
WALGREEN CO, Respondent
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 makes the following:
1. The respondent, Walgreen Co., (hereinafter "respondent"), operates retail stores. One such store is located in Waunakee, Wisconsin.
2. The complainant, William Austin, (hereinafter "complainant"), began working for the respondent in October of 2004 as a management trainee (hereinafter "MGT") at the respondent's store in Waunakee.
3. The next management level position above an MGT is an executive management trainee (hereinafter "EXA"). The next step above an EXA is the store manager.
4. As an MGT, the complainant generally worked about 44 hours a week, consisting of five 9-hour days. He was paid for 40 hours at regular pay, plus 4 hours of overtime.
5. The store hours were 7:00 a.m. to 10:00 p.m., and a manager had to be present in the store at all times. The respondent generally had three MGT/EXAs working each day, one starting before 8:00 a.m., one starting at 10:00 a.m., and one starting between 1:00 and 2:00 p.m. Each manager would work a nine-hour shift, so that there would always be two managers on, except after 6:30 in the evenings. The store manager would come in at about 8:00 a.m.
6. A typical 9-hour day for a manager or assistant manager involved 80% non-sedentary work and 20% sedentary work. The non-sedentary work consisted of processing deliveries, resetting stock, "scan-outs," and customer service. The sedentary work included, but was not limited to, morning bookwork, verifying invoices from independent vendors and making schedules.
7. In March of 2005 the complainant fell off a ladder while at work and fractured his ankle. He had surgery and was off work for a month. When he returned he had restrictions of working no more than 8 hours a day, with no more than 4 hours per day spent standing and walking, and no working on ladders. Those restrictions became permanent in August of 2006.
8. The respondent accommodated the complainant's medical restrictions by modifying the complainant's schedule to allow him to work five 8-hour days plus one 4-hour day instead of five 9-hour days. It also assigned the complainant fewer night shifts to minimize the need for him to work alone.
9. The respondent also accommodated the complainant by assigning him extra paperwork, including paperwork that would normally have been handled by other management employees. Sometimes the respondent sent the complainant to other stores to help perform reconciliations, a task performed once a month which involved checking store records against the monthly corporate report.
10. Restructuring the complainant's schedule and job duties was a reasonable accommodation that permitted him to remain employed as an assistant manager.
11. After his injury the complainant completed the training program for and was promoted to the position of EXA. EXAs work basically the same hours as MGTs, and perform the same breakdown of sedentary/non-sedentary duties as MGTs.
12. In October of 2005 the respondent hired a second EXA to assist in the Waunakee store. It did so because the complainant's store had fallen behind with respect to resets and other tasks. The second EXA remained employed full-time for the duration of the complainant's employment.
13. Hiring another EXA was not a necessary result of accommodating the complainant's disability. The respondent did not prove that restructuring the complainant's job caused the store to fall behind, nor would this situation have warranted hiring an additional full-time manager.
14. In July of 2007 the respondent told the complainant it could no longer accommodate him and terminated the employment relationship.
16. The respondent failed to demonstrate that ongoing accommodation of the complainant's disability would have posed a hardship for its business.
Based on the above FINDINGS OF FACT the commission makes the following:
1. That the complainant established probable cause to believe that he is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.
2. That the complainant established probable cause to believe that the respondent discriminated against him based on his disability within the meaning of the Wisconsin Fair Employment Act.
Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:
1. That the decision of the administrative law judge is reversed. This matter is remanded to the Equal Rights Division for further proceedings.
Dated and mailed June 30, 2011
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
This case is before the commission on probable cause. The complainant's burden in a probable cause proceeding is a lesser one than in a case on the merits. The burden of proof at a probable cause hearing has been described as "low." See, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992). It is somewhere between a preponderance and a suspicion. Hintz v. Flambeau Medical Center (LIRC, Aug. 9. 1989). The complainant's burden is to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC, Feb. 18, 1987). The commission is satisfied that the complainant has met this burden.
There is no factual dispute that the complainant has a disability, nor any question that the disability was reasonably related to his ability to adequately perform the job-related responsibilities of his employment. The sole question presented is whether there was a reasonable accommodation available that would have enabled the complainant to continue his employment and whether to provide that accommodation would pose a hardship on the respondent's business.
The initial burden is on the employee to prove that a reasonable accommodation is available. Hutchinson Technology, Inc. v. Labor and Industry Review Commission, 273 Wis. 2d 393, 682 N.W.2d 343 (2004). A "reasonable accommodation" is one that effectively enables the disabled individual to perform the job-related responsibilities of his employment. Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). However, a reasonable accommodation is not limited to that which would allow the employee to perform all of his or her job duties. A change in job duties may be a reasonable accommodation in a given circumstance. Crystal Lake Cheese Factory v. LIRC and Catlin, 2003 WI 106 at 52, 664 N.W.2d 651 (emphasis added). See, also, Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001).
In this case, the respondent had been accommodating the complainant's medical restrictions for over two years by allowing him to work five 8-hour days, plus one 4-hour day, rather than five 9-hour days, and by allowing him to perform four hours of sedentary work during each of the 8-hour days. The restructuring of the complainant's job in this manner constituted a reasonable accommodation that permitted him to remain employed as an MGT and later as an EXA.
The salient question is whether requiring the respondent to continue to offer the same accommodation on an ongoing basis would have created a hardship for it. The respondent took the position that it would. The respondent's store manager testified that, because the complainant was spending fifty percent of his time on paperwork, rather than twenty-percent as was customary, his store had fallen behind in resetting and restocking and was taking too much time processing deliveries. The store manager claimed that these deficiencies necessitated assigning an extra manager to the complainant's store, which caused the store to exceed its budget by $40,000. Paying an extra manager not only caused the store to go over budget, but it also resulted in a drop in the bonuses that were available to pay other managers. Further, the respondent contended that, because the accommodation the respondent had been providing meant assigning nearly all of the paperwork exclusively to the complainant, other employees aspiring to become managers were unable to get the training they needed to advance in the ranks.
The commission has considered these assertions, but is unpersuaded that accommodating the complainant resulted in the hardships the respondent claims.
While the respondent's store manager testified that there is only about 2.5 to 3 hours a day of paperwork in the store, this assertion is not borne out by the evidence in the record. The respondent explained that it employed four assistant managers at the complainant's store, three MGTs and one EXA, and that each of these managers worked 44 hours a week, spending 80% of his or her time on non-sedentary tasks and 20% on sedentary work. In addition, the store manager also performed about 80% non-sedentary work. Totaling up the amount of sedentary work available for all of the management employees in the complainant's store results in easily enough hours of sedentary work to enable the complainant to perform 4 hours a day of such work 5 days a week, while still leaving opportunities for other managers to do some of the paperwork and receive training on those tasks. (1)
The commission is also unpersuaded that assigning the complainant more sedentary work and less non-sedentary work would have caused the store to fall behind in stocking, resetting and delivery work, as the respondent alleges. The evidence indicates that there was a finite amount of paperwork available to perform, and the store manager testified that once she began accommodating the complainant's restrictions by assigning him extra paperwork, she spent more of her time out on the floor doing resets or helping in the warehouse. Presumably other assistant managers also performed additional non-sedentary work, since the complainant was doing more of the paperwork that would normally have been spread out among them. Given that other managers would have extra time to spend on deliveries, restocking, and other non-sedentary tasks that the complainant could only perform on a limited basis, it does not stand to reason that accommodating the complainant's disability caused the store to fall behind with respect to the completion of those tasks.
Moreover, even if the evidence supported a conclusion that the complainant's store fell behind in the performance of the tasks at issue as a result of accommodating the complainant's disability, the commission would be unpersuaded that this required hiring another full-time EXA. Assuming for the sake of argument that no other manager was able to cover the non-sedentary tasks that the complainant was unable to perform, in spite of the fact that the complainant was now doing more of the sedentary work that other workers would ordinarily perform during some portion of their work time, this would leave only 11 hours (2) a week of non-sedentary tasks that went unperformed. While, given that assumption, an argument might be made that the respondent required extra assistance in the store, the need to cover 11 hours of work each week is insufficient to justify hiring another full-time EXA on an ongoing basis.
In addition to its failure to establish that hiring a full-time EXA was necessary as a result of accommodating the complainant's disability, the respondent also failed to present any evidence, other than the bare assertion of the store manager, demonstrating that the cost of the extra EXA was $40,000. Finally, the respondent failed to present any competent evidence to establish that this added cost, assuming it existed, would create a hardship for its business. Absent any evidence showing the financial resources of the respondent, it cannot be presumed that $40,000 represents a significant cost for its business or that it could not reasonably afford such an expense.
In conclusion, the complainant established probable cause to believe that there was a reasonable accommodation available that would have enabled him to continue in his job and, based on this record, the commission does not believe that the respondent met its burden of demonstrating that to continue to provide that accommodation would have created a hardship for it. The commission therefore finds probable cause to believe that the complainant was discriminated against as alleged. The respondent will have a further opportunity at the hearing on the merits to present evidence in support of its contention that it could not continue to accommodate the complainant's disability without hardship.
cc:
Attorney Adam Walsh
Attorney Laura A. Lindner
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