MICHAL SHEA, Complainant
CHRYSLER GROUP LLC, 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 of Fact, Conclusions of Law, and Order in that decision as its own, except that it makes the following modifications thereto:
Paragraph 7 of the administrative law judge's Order is deleted and the following paragraph is substituted therefor:
7. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
February 28, 2013
sheamichal . rmd : 110 :
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
This case involves the respondent's refusal to allow the complainant to return to her job after she was released by her physician to return to work without restrictions in February, 2005. The complainant alleges that this was discrimination on the basis of disability.
In a disability discrimination claim under the WFEA, the complainant must initially prove the following: (1) he or she has a disability within the meaning of the act; and (2) the employer's adverse employment action was on the basis of the complainant's disability. If the complainant meets its burden of proof as to both of these elements, the burden shifts to the employer to prove a defense under Wis. Stat. § 111.34. Under that section, the employer must show that its adverse action, while made on the basis of the complainant's disability, was not discriminatory under the WFEA. Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 25, 304 Wis. 2d 258, 736 N.W.2d 111.
The commission agrees with the ALJ, that in this case the complainant met her burden of proving that she had a disability within the meaning of the WFEA. As the ALJ noted, the evidence shows that in February of 2005, when the complainant attempted to return to work, the respondent perceived her as having a number of medical impairments limiting her capacity to perform the duties of her job. The respondent's perception was based on opinions of the physician it relied on, Dr. Seter, that due to multiple medical conditions the complainant would be unable to tolerate the prolonged walking and standing her job involved, and that the complainant was an active alcoholic who would pose a safety risk to herself and others. The respondent does not dispute that it had these perceptions based on Dr. Seter's reports to it, and it does not dispute the ALJ's conclusion that the complainant was thus an individual with a disability in that she was perceived by the respondent to be such.
The commission also agrees with the ALJ that the employer's adverse employment action, of refusing to allow complainant to return to work in February, 2005, after she was released by her physician to do so, was on the basis of the complainant's disability. As the ALJ noted, the respondent does not dispute that its decision to refuse to allow the complainant to return to work was based on Dr. Seter's opinion that the complainant was a disabled individual who was unable to perform the duties of her job.
Because these elements were established, the burden of proof was shifted to the respondent to establish a defense. Under the WFEA, it is not employment discrimination because of disability to bar or terminate from employment any individual, if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment. Wis. Stat. § 111.34(2)(a). In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual and of others may be considered. Wis. Stat. § 111.34(2)(b). The respondent relies on these defenses, contending both that the complainant was actually physically unable to adequately perform her job because of her medical impairments, and that the complainant presented a safety risk to herself and others because she was an active alcoholic with a history of alcohol abuse.
It is clear that the respondent made its decision not to allow the complainant to return to work based entirely on the opinion of Dr. Seter that she was unable to do so adequately or safely. However, the mere fact that an employer has made its employment decision in reliance upon the opinion of a doctor does not protect the employer from a finding of discrimination. Where there is conflicting medical evidence, the trier of fact conclusively determines which view of the evidence it will accept. Leach v. Town of Pleasant Prairie Fire Dept., ERD Case No. 8850169 (LIRC, 04/23/91). Here, in addition to the expert medical evidence and opinions of Dr. Seter, there was expert medical evidence and opinion by the complainant's personal physician, Dr. Montemurro. (1) The opinions of Dr. Montemurro and Dr. Seter were in direct conflict on the question of whether the complainant was able to perform her job adequately and safely given her condition.
The ALJ considered and weighed this competing expert medical evidence regarding the complainant's ability to perform her job. She concluded that the opinion of Dr. Montemurro that the complainant was able to return to work in February 2005 should be given as much weight as the opinion of Dr. Seter that the complainant was not able to return to work - in the ALJ's words, that the competing evidence was "in equipoise." The ALJ concluded that because the respondent bears the burden of proof by a preponderance of the evidence on the applicability of the "ability to adequately undertake job-related responsibilities" defense, the fact that the evidence was equally balanced meant that the respondent did not carry its burden of proof by a preponderance.
The commission has carefully considered the evidence as to the opinions of Dr. Montemurro and Dr. Seter. While the commission agrees with the ALJ that the respondent did not meet its burden of establishing by a preponderance of the evidence that the complainant's disability was reasonably related to her ability to adequately undertake the job-related responsibilities of her employment, it does not adopt the ALJ's view that the evidence on this was merely "in equipoise". It finds the opinion of Dr. Montemurro to be more persuasive than that of Dr. Seter, and to be entitled to greater weight.
Dr. Montemurro was very familiar with the complainant's history and condition, having treated her since 2000. In addition to closely following the treatment she was receiving from various specialists, he conducted numerous physical exams of the complainant during the two years preceding the challenged 2005 decision by the respondent to not allow the complainant to return to work.
Dr. Montemurro's opinion that the complainant was physically capable of performing her job as a picker, was persuasive to the commission. The commission notes that in a July 2005 report, Dr. Montemurro indicated that the complainant had taken a stress echo test with normal results, was not short of breath with activity, could walk without claudication (discomfort from walking) at 100 yards, her knees felt fine, her feet were asymptomatic and required no further intervention, and her post-hernia repair abdomen was stable. She had no residual limitations from her abdominal surgeries and was subject to no weight lifting restrictions. Dr. Montemurro believed, to a reasonable degree of medical certainty, that the complainant was subject to no restrictions regarding the activities required by her job, and the commission finds that belief reasonable and persuasive.
Considering that the respondent took the position that the complainant's job was too physically challenging for her, it is notable that the respondent never sought to have a functional capacity examination conducted on the complainant. Such an examination would have produced specific evidence on questions such as whether and to what extent the complainant could perform the kind of walking, lifting and climbing tasks which were part of her job. The absence of specific, quantified evidence as to the nature of supposed limitations on the complainant's abilities suggests that Dr. Seter actually could not identify any to any level of certainty.
Given these things, the commission finds Dr. Montemurro's opinion more persuasive and thus believes that the respondent clearly failed to carry its burden of establishing an "[in]ability to adequately undertake job-related responsibilities" defense.
Dr. Montemurro's opinion that the complainant was not an alcoholic and did not present a safety hazard in connection with consumption of alcohol, was also persuasive to the commission. From the beginning of the course of his treatment of the complainant, Dr. Montemurro would ask the complainant about her alcohol consumption. The complainant did not inform him that she would consume alcohol to the point of intoxication, or that she regularly got intoxicated, and Dr. Montemurro had no reason to believe that she would. By May 2004 the complainant's information to Dr. Montemurro was that she regularly consumed fewer than 6 drinks per week, and based on further history that was Dr. Montemurro's knowledge of the level of the complainant's drinking in 2005. In addition, information Dr. Montemurro relied on regarding treatment of the complainant by a psychiatrist, including that psychiatrist's prescription to the complainant of a medication contraindicated for use in alcoholics, was an indication of a lack of concern as to alcoholism in the complainant. Dr. Montemurro testified that he believed, to a reasonable degree of medical certainty, that the complainant was not an alcoholic. Given this, and given the complete lack of evidence that the complainant had ever before come to work under the influence of alcohol, the commission believes that the respondent clearly failed to carry its burden of establishing a "future safety" defense.
NOTE: In her decision, after finding that the complainant had established that she was an individual with a disability and that the respondent took adverse actions against her because of her disabilities, the ALJ initially discussed the applicability of the "hardship" defense in Wis. Stat. § 111.34(1)(b), which involves the questions of whether a reasonable accommodation would have allowed the complainant to perform her job and if so whether it would have posed a "hardship" for the respondent. She concluded that the respondent failed to prove that a reasonable accommodation of the complainant's disability would have posed a hardship on it.
The ALJ then discussed the applicability of the "job-relatedness" defense in § 111.34(2), which involves the question of whether the complainant's disabilities were reasonably related to her ability adequately and safely perform her job. As noted above, she concluded that the competing expert medical evidence was "in equipoise," such that the respondent could not be found to have proved by a preponderance of the evidence, that the complainant was unable to return to work.
The ALJ then discussed what would occur if, for the sake of argument, the respondent's evidence were given more weight, so that it could be considered that the respondent had proved by a preponderance of the evidence that the complainant could not do her job. The ALJ concluded that this would still not be sufficient to establish a "job-relatedness" defense, because to establish such a defense the employer must also show that the employee is unable to perform her job even with a reasonable accommodation. The ALJ found this was not shown because the respondent never made an attempt to determine whether it could have provided a reasonable accommodation which would have allowed the complainant to return to work in spite of her impairments.
The commission believes that in the situation presented in this case, it was not necessary to engage in an analysis of the "hardship" defense or of the potential need for and impact of a reasonable accommodation.
In cases in which an individual's disability does affect their ability to do their job, the "hardship" defense and the "job-relatedness" defense interact: it becomes important to determine whether the individual who cannot otherwise do their job, could do that job if they were provided with a particular accommodation. In that case it thus becomes important to determine if that accommodation would create a "hardship." See, e.g., Target Stores v. LIRC and Crivello, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998).
That is not the case, though, if the individual's disability does not affect their ability to do their job.
[T]he question of whether reasonable accommodation was refused or would have posed a hardship comes into play only if it appears that a challenged employment decision was made because of a disability and that the disability which was the reason for a challenged employment action is reasonably related to the complainant's ability to do the job.
Cook v. Community Care Resources, Inc., ERD Case No. 199903790 (LIRC, Jan. 13, 2003) (emphasis added). As noted above, the ALJ found, and the commission agrees, that the complainant was an individual with a disability, that the respondent took adverse actions against her because of her disabilities, and that the respondent failed to establish by a preponderance of the evidence that the complainant's disabilities were reasonably related to her ability to do her job. Given these things, the question of whether an accommodation was refused or would have posed a hardship does not come into play. Cook, supra.
The commission understands, that the ALJ's discussion of whether it was shown that an accommodation would pose a hardship on respondent, was one based on making an assumption for the sake of argument that the facts of the case were different. Of course, there are many situations in which, if the facts were different, the decision-maker's analysis would take a different course. Following such a course for the sake of argument may sometimes yield instructive results, but it may also serve to complicate matters by calling into question what the actual, determinative rationale was. In this case, the commission feels that it is preferable to explain the outcome simply by reference to what it has found the facts to be, which is that the complainant was able to do her job safely and adequately. For these reasons, the commission does not rely on or adopt the ALJ's discussion of accommodation issues in this case.
cc:
David E. Celebre, Attorney for Complainant
Steven E. Balogh, Attorney for Respondent
Appealed to Circuit Court. Affirmed November 26, 2013. Appealed to Court of Appeals. Affirmed, Chrysler Group LLC v. LIRC and Michael Shea, No. 2014AP83, Ct. App. Dist. 2, unpublished slip op. (WI App. Feb. 25, 2015)
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]