KENNETH VALYO, Complainant

ST MARY'S DEAN VENTURES, 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.

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

Dated and mailed December 28, 2012
valyoke . rsd : 164 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

In his petition for commission review the complainant argues that the respondent failed to offer him a reasonable accommodation when it decided that he needed to remain in the call rotation under the "backup physician" arrangement or leave the practice. The complainant contends that he was medically unable to perform the great majority of procedures potentially required of an on-call physician and that there could be no assurance that a backup physician would provide any effective assistance. Specifically, the complainant maintains that the hospital staff responsible for summoning the on-call physician are not all medically trained and cannot necessarily predict what procedures the on-call physician may need to perform, and, further, that many of the on-call physicians live too far away from the hospital to arrive on time to attend to patients in need of a medical procedure.

The commission does not find the complainant's arguments persuasive. A reasonable accommodation is one which enables the employee to adequately perform the job notwithstanding the disability. If an employer offers an accommodation which effectively eliminates the conflict between the disabled employee's abilities and the job requirements, and which reasonably preserves the affected employee's employment status, the accommodation requirement has been satisfied. Norton v. City of Kenosha, ERD Case No. 9052433 (LIRC March 16, 1994); Owen v. American Packaging Company, ERD Case No. 8920686 (LIRC Feb. 1, 1991).  In this case, the accommodation offered by the respondent -- having the complainant retain his on-call duties, but with the understanding that he could summon a back-up physician should the need arise to perform procedures that his disability prevented him from performing -- would have accomplished this. The complainant's concerns about the efficacy of the accommodation in providing quality medical services are speculative and unsupported by the evidence. The evidence in the record indicates that family practice physicians rarely perform procedures when on call and, further, that it is common practice for a physician to call in someone else to perform a procedure that he or she is not comfortable performing. Indeed, the respondent already uses back-up physicians, and the complainant has failed to present any competent evidence demonstrating that this practice is harmful to patients. The evidence establishes that back-up physicians have the support of emergency room physicians and staff, and that triage procedures are in place, rendering it extremely unlikely that patient safety would be compromised. Under the circumstances, the commission sees no reason to believe that the respondent failed in its burden of offering the complainant a reasonable accommodation.

In his brief the complainant also reiterates the argument made at the hearing that other physicians were afforded more favorable treatment. The complainant points out that the respondent granted Dr. Biere's request to be relieved from OB call without any proof of disability and, further, that it granted Dr. Kaiser's request for relief from call without requiring her to present proof of disability and despite the fact that she remained capable of performing the "cerebral" duties entailed by the call schedule. These arguments fail. Dr. Biere's request to be relieved from OB call was not made due to a disability, but for personal reasons, so the respondent would have had no reason to request proof of disability. At the hearing the respondent explained that OB practice is not mandatory for family practice doctors, and that a physician may elect to not practice OB, in which case that individual would also not cover OB call. Although the complainant disputes this, the commission sees no reason to question the respondent's assertions on this point, particularly in light of the fact that it was willing to grant the complainant's own request to be relieved from OB call. With respect to Dr. Kaiser, the evidence indicates that the respondent had before it sufficient evidence of disability to warrant providing an accommodation and, further, that the accommodation it provided was appropriate given the nature of Dr. Kaiser's disability. Further, even if the complainant could show that Dr. Kaiser was treated more favorably, the complainant cannot prevail on a claim of disability discrimination by demonstrating that he was treated less favorably in the accommodation process than another employee with a different disability.

Much of the complainant's argument appears to relate to the manner in which he was treated by his colleagues and to his belief that the respondent could have offered him the accommodation of his choice without hardship, but chose to deny it out of personal animus on the part of some of his colleagues. However, while it may indeed have been possible for the respondent to provide the complainant the accommodation of his choice without hardship, its failure to do so is not a violation of the Wisconsin Fair Employment Act. As stated above, where the respondent offered an accommodation that was reasonable and that would have enabled the complainant to continue doing his job, no more was required. Norton, supra.

The commission has considered the remaining arguments raised by the complainant in his petition, but finds them similarly unpersuasive. Having reviewed the evidence in the record, the commission agrees with the administrative law judge that the complainant was not discriminated against in the terms and conditions of his employment based upon disability or denied a reasonable accommodation for his disability. Accordingly, the dismissal of the complaint is affirmed.

cc:
Attorney Aaron Halstead
Attorney Lynn Stathas

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