DAVID L YOUNG, Complainant
STATE OF WISCONSIN, 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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:
In the sixth sentence of the introductory paragraph of the administrative law judge's DECISION the date "October 7, 2007" is deleted and the date "October 7, 2008," is substituted therefor.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed November 30, 2011
youngda . rmd : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
Did the complainant establish that he is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act?
To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "Act"), a complainant must first establish that he is an individual with a disability, within the meaning of the Act. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term "individual with a disability" as an individual who, (a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, (b) has a record of such an impairment; or (c) is perceived as having such an impairment. An "impairment" for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).
That the complainant has a permanent impairment to his right knee is not in dispute. The question presented is whether the complainant met his burden of establishing that his impairment makes achievement unusually difficult or limits his capacity to work. The commission agrees with the administrative law judge that the complainant did not meet that burden.
The complainant testified that his knee impairment limits his capacity to work, in so far as it causes him to experience pain and stiffness and to limp when he begins his work day. (1) However, while the commission does not doubt that pain can be disabling, the evidence in this case does not demonstrate that the complainant's knee pain limited his capacity to work. The complainant testified that he experiences pain and stiffness from the long drive to work, which goes away within ten minutes to an hour after arriving at work. The evidence indicates that the complainant spends the first forty-five minutes of his day at his desk, during which time he can flex his knee and work out the stiffness in the knee before he needs to do any significant walking around. The stiffness and pain the complainant briefly experiences upon arriving at work constitutes only the most minimal, if any, limitation on the complainant's ability to perform his job. While the complainant also testified that the knee pain makes it difficult for him to walk from his car to his desk, the commission is not persuaded that this alone amounts to a circumstance that can be said to limit the capacity to work, so as to constitute a disability within the meaning of the law.
The complainant makes an argument that, whether or not he is found to have an actual disability under the law, the respondent perceived him as having a disability. The commission agrees with the administrative law judge that the complainant did not establish this was the case. The complainant advised the respondent that he walked just fine, could perform the job, and had no problem operating a motor vehicle for short periods of time. The respondent's internal e-mails related to the complainant's accommodation request indicate that the respondent had doubts about whether the complainant met the definition of an individual with a disability under the statute. Further, the complainant testified that the human resources director told him she believed he had fabricated the whole thing so that he could change his shift. Given those facts, and considering that the complainant had always been able to perform his job without any apparent difficulty, the commission can see no reason to conclude that the respondent perceived him as having a disability.
The complainant also argues that the commission should find the respondent perceived him as having a disability based upon its answers to his pre-hearing requests for admissions and interrogatories. Specifically, the complainant points out that the respondent was asked to admit or deny that the complainant has a disability as defined by the Act, to which it responded that it lacked sufficient information to either admit or deny that the complainant has a disability under the Act and therefore denied it. The complainant contends that, because a party may not rely on a lack of information or knowledge as a reason for failing to admit or deny unless it states that it has made a reasonable inquiry into the matter and that the information known or readily obtainable was insufficient to allow a response, per Wis. Stat. § 804.11(b), the question of whether he had a disability should be deemed admitted. This argument fails. In the first place, it does appear that the respondent satisfied the requirement of explaining that it made a reasonable inquiry into the matter in its response to the complainant's first interrogatory. Further, although the statute provides a mechanism by which a party can request a ruling on the sufficiency of the answer, as set forth in Wis. Stat. § 804.11(c), the complainant did not make such request. Given the administrative law judge's opinion that the question of whether the complainant has a disability within the meaning of the law is part of the complainant's burden of proof and, further, that it is a matter of law to be decided by the trier-of-fact, it is apparent that the administrative law judge would not have ordered the matter admitted had the complainant made such request.
For all of the reasons set forth above, the commission agrees with the administrative law judge that the complainant neither established that he has a disability within the meaning of the Act, or that the respondent perceived him as having such a disability.
Did the respondent refuse to provide the complainant with a reasonable accommodation?
Even if it could be found that the complainant is an individual with a disability within the meaning of the statute, such as would trigger a duty to accommodate, the commission is not persuaded that the respondent refused to provide the complainant with a reasonable accommodation. A reasonable accommodation is an accommodation that would enable the complainant to perform the duties of his position. See, Geller v. Heartland Lakeside Joint #3 School Dist., ERD Case No. 200404961 (LIRC March 27, 2009). The complainant has the initial burden of proving that a reasonable accommodation is available. Hutchinson Technology, Inc. v. LIRC and Roytek, 273 Wis. 2d 394, 416, 682 N.W.2d 343 (2004).
The accommodation the complainant sought was a schedule modification that would have the effect of allowing him to ride to and from work with other workers, thereby removing the need for him to drive, an activity that exacerbates problems associated with his alleged disability. To accomplish the requested modification the respondent would have to allow the complainant to start his work day fifteen minutes earlier than his usual schedule, and to leave an hour earlier, while working through his forty-five-minute unpaid lunch break or, in the alternative, by combining his two paid fifteen-minute breaks and taking them as a half-hour paid lunch break.
The respondent has taken the position that it does not have an obligation to extend an accommodation that relates to commuting back and forth to work. The commission disagrees. Numerous courts in other jurisdictions applying similar federal and state laws prohibiting disability discrimination in employment have concluded that an employer may have an obligation to extend an accommodation related to an employee's commute. See, for example, Nixon-Tinkelman v. NYC Department of Health and Mental Hygiene, 2011 U.S. App. LEXIS 16569 (2nd Cir. 2011); Livingston v. Fred Meyer Stores, Inc., 388 Fed. Appx. 738, 2010 U.S. App. LEXIS 15044, 23 Am. Disabilities Cas. (BNA) 727 (9th Cir. 2010), and cases cited therein. While these cases are not binding on the commission for purposes of interpreting the Wisconsin Fair Employment Act, it is nonetheless appropriate to look to them for guidance. Moreover, the conclusion that an employer may need to accommodate an employee's commute to and from work is consistent with previous commission and court decisions holding that no particular type of accommodation is per se unreasonable under the Act. See, McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 2d 830 (Ct. App. 1988); Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 664 N.W.2d 651 (2003); Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001). The commission can see no reason to presume that an accommodation designed to make it easier for an employee with a disability to commute to and from work and, in this case, to thereby work with a lesser degree of pain, is beyond the bounds of what might constitute a reasonable accommodation.
That said, the commission is unpersuaded that the accommodation the complainant requests in this case is either medically necessary or that it would effectively resolve the problem with the complainant's knee pain. As stated above, the complainant testified that he experiences pain and stiffness resulting from the long drive to work, which goes away within ten minutes to an hour of arriving at work, generally prior to the point at which the complainant would need to walk around or supervise inmates. In fact, most of the stiffness can be worked out of the knee during the initial forty-five-minute period of the morning when the complainant is at his desk. Given that, it is not clear that any accommodation is necessary. If the complainant were to arrive at work fifteen minutes early each day he would always have sufficient time to work the stiffness out of his knee before it became necessary to walk around.
The complainant's biggest problem seems to be walking from his car to his desk, during which time his knee is very stiff and he finds ambulation difficult. However, the commission is unpersuaded that the requested accommodation would resolve that problem. The individuals with whom the complainant intends to carpool (his brother-in-law, brother-in-law's wife, and brother-in-law's brother) are correctional officers who work rotating schedules, including weekends. At the hearing the respondent pointed out that, because of the correctional officers' schedules, there would be one or two days a week when the complainant would need to drive himself to and from work. The complainant insists that having to drive "just one or two or three days at a time" would not be a problem, and that it is the cumulative effect of daily driving that is problematic. However, his testimony on this point is unsupported by any medical evidence, and the commission can see no reason to assume that an accommodation that would require the complainant to drive himself to work one or two times a week would accomplish the goal of allowing the complainant to arrive at work without stiffness and pain.
The evidence suggests, moreover, that the complainant's knee problem could be resolved through other less drastic means than a complete schedule change. To begin with, the commission notes that the complainant failed to introduce any evidence showing the distance he must walk to get from his car to his desk. The complainant testified that he does not have a disabled parking space, and the evidence does not indicate that he ever requested one. It seems entirely possible that simply requesting a disabled parking space would have been a solution to the complainant's difficulties in walking from his car to his desk, and the record contains no evidence to the contrary. Further, the complainant testified that there are at least three convenience stores or rest stops on his drive to work, at which he could stop to stretch and walk around, but that he has never attempted to do so. While the complainant rejected the idea of stopping en route as "absolutely not effective," on the ground that he needs to flex his knee every three to five minutes, there is no reason to assume that stopping a few times along the way to stretch out his knee would confer no benefit, and it is hard to understand why the complainant would not have even tried this before demanding an entirely new work schedule.
In addition to the fact that the complainant failed to attempt simpler means of resolving the problem with his knee, the commission is also troubled by the fact that at the hearing the complainant arbitrarily rejected the idea of any accommodation that would allow him to retain his current work schedule. The respondent asked the complainant whether, assuming another worker was able to drive him to work during his regular hours, 6:45 a.m. to 3:30 p.m., this would resolve the problem. The complainant maintained it would not. The complainant testified that he does not want a forty-five-minute lunch break, because he needs to exercise his knee at lunch and it is more advantageous for him to do so for half an hour than for forty-five minutes. Although given several opportunities to explain this response, the complainant was unable to offer any coherent explanation as to why a forty-five-minute lunch break is too long for him to exercise his knee, while thirty minutes is not. The complainant's insistence that getting a ride to work on his own shift would not have been a reasonable accommodation for his knee problem casts doubt on the legitimacy of his request and leads the commission to question whether the accommodation requested is a matter of medical necessity or simply one of personal preference.
On that point, the commission also considers it noteworthy that the alternate accommodation the complainant requested was a transfer to a clerical position in the maintenance department that would have entailed the same drive to work on the same shift, and a similar walk into the building. The fact that the complainant requested an accommodation that would not have had any salutary effect on his knee pain upon arriving at work raises a question as to the extent of the asserted problem and whether there was any genuine need to remedy it.
For all the reasons discussed above, the commission is not persuaded that it was either medically necessary or reasonable to ask the respondent to modify the complainant's entire work schedule simply to make it easier for him to walk from his car to his desk, nor is it persuaded that, even assuming some accommodation was warranted, the accommodation requested would have been an effective one.
Because the commission has concluded that the complainant did not meet his burden of establishing that he is an individual with a disability, within the meaning of the Act, or that the respondent refused to provide a reasonable accommodation, the commission finds it unnecessary to consider the question of whether the requested accommodation would have posed a hardship for the respondent.
cc:
Attorney Jeff Scott Olson
Attorney Deborah Rychlowski
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