STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126
http://dwd.wisconsin.gov/lirc/

JAYNA L CAVE, Complainant

MILWAUKEE COUNTY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200704118,


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.

DECISION

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

Dated and mailed January 30, 2014
caveja_rsd . doc : 164 : 123  123.5

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The question presented in this case is whether the respondent refused to accommodate the complainant's disability by continuing to assign her to work on "Pod 4D," in violation of her medical restrictions, and by refusing her request for part-time work, and whether it discriminated against her by placing her on an Employment Activity Documentation (hereinafter "EAD") for absences related to her disability. The administrative law judge held that the complainant was not discriminated against in the manner alleged. The commission agrees.

A threshold question to decide is whether the complainant established that she is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act"). 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. Wis. Stat. § 111.32(8). Medical evidence in the record indicates that the complainant was diagnosed with rheumatoid arthritis and had permanent work restrictions as a result. The complainant also testified that she has multiple sclerosis, and a doctor's note presented at the hearing supports this. Based on the foregoing, the commission is satisfied that the complainant met her burden of establishing that she is an individual with a disability, within the meaning of Wis. Stat. § 111.32(8)(a). Because the commission has concluded that the complainant demonstrated that she has a disability, in fact, it need not decide whether the respondent also perceived her as being an individual with a disability.  (1)

Turning to the substance of the complainant's complaint, the complainant's first contention is that the respondent refused to accommodate her request that she not be assigned tasks requiring her to walk stairs. There is no merit to this argument. The evidence establishes that on August 24, 2006, the complainant submitted a doctor's note indicating that she could not "negotiate stairs" and that, thereafter, the respondent stopped assigning the complainant to work in Pod 4D, the only area which required employees to climb stairs. In her petition for commission review the complainant argues that the administrative law judge erroneously found that the respondent made the arrangement for other nurses to cover her Pod 4D duties when, in fact, it was she who made those arrangements. However, this argument is contrary to the complainant's own testimony at the hearing that the respondent's scheduler, Maureen, made arrangements for an employee named "Charles" to do the Pod 4D work for her. Further, and more importantly, the relevant point is that the respondent was willing to provide the accommodation the complainant requested and no longer required her to walk stairs after she advised it she could not do so; who arranged for the accommodation is beside the point.

Next, the complainant alleges that, on July 20, 2007, she received an EAD indicating that she had missed over 130 hours of work due to absences related to illness, and that if attendance problems continued disciplinary action may result. The complainant maintains that this EAD amounted to discrimination based upon her disability. However, it was not established that the complainant's absences were related to her disability. To the contrary, at the hearing the complainant was unable to explain why she missed the days of work in question. Moreover, the evidence indicates that, where the complainant requested Family and Medical Leave Act leave, such leave was granted and those absences were not included in the EAD.

The complainant's third allegation of discrimination centers on her request for part-time work. On March 28, 2007, a doctor from the "Center for Neurological Disorders" prepared a note stating that the complainant was under his care for multiple sclerosis and that she was "being advised" to decrease her work hours to 40 hours per pay period. The respondent denied this request because it did not have a vacant part-time position available. The administrative law judge found that the respondent's actions did not violate the statute. The commission agrees, although based on a different rationale.

The complainant bears the initial burden of proving that a reasonable accommodation exists. Roytek v. Hutchinson Technology, Inc., ERD Case No. 199903917 (LIRC, Jan. 22, 2002). A reasonable accommodation is an accommodation that would enable the complainant to perform the duties of her position. Young v. State of Wisconsin, ERD Case No. CR200702935 (LIRC Nov. 30, 2011), citing Geller v. Heartland Lakeside Joint #3 School Dist., ERD Case No. 200404961 (LIRC March 27, 2009). 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 complainant never explained how her multiple sclerosis affected her ability to perform the duties of her job or how the requested accommodation would have eliminated a conflict between her abilities and the job requirements. The complainant did not contend that she was physically unable to handle full-time work, and there is reason to believe that the request for part-time work may have been made in order to facilitate her attendance at medical appointments. The complainant had made a previous request for part-time work on November 7, 2006, at which time she specified that she was doing so to provide herself with more flexibility in scheduling doctor appointments. Further, at the hearing the complainant testified that employees had been told that requests to leave early for medical appointments would be denied and that she was believed she would not be able to take off for medical appointments if needed. However, the Director of Nursing testified that the prohibition on leaving early for medical appointments was related to absences without advance notice, and that if an employee gave advance notice of medical appointments there would be no problem with taking time off. Consequently, if the request for part-time work was merely a recommendation by the complainant's doctor to assist her in getting to her medical appointments, it does not appear to have been necessary. Given the evidence in this record, the commission sees no reason to assume that part-time work was a medically necessary accommodation that would have resolved a genuine conflict between the complainant's disability and the demands of her job. It, therefore, concludes that the complainant has not met her burden of demonstrating that she requested a reasonable accommodation.

The commission wishes to emphasize, however, that had the complainant met her initial burden, the respondent would have been required to do more than simply assert that it had no part-time positions available. It is settled law that permitting an employee to work a shortened shift may, depending upon the circumstances, be considered a reasonable accommodation, Wickstrom v. Hutchinson Technology, Inc., ERD Case No. CR200001242 (LIRC Aug. 26, 2005), and the commission has previously rejected the argument that an employer does not need to alter the nature of a position or create a part-time position where none previously existed. Roytek v. Hutchinson Technology, Inc., ERD Case No. 199903917 (LIRC, Jan. 22, 2002). To the contrary, if an accommodation is reasonable and can be provided by the employer without creating a hardship for its business, the Wisconsin Fair Employment Act contemplates that it do so. Had the complainant established that part-time work would have been a reasonable accommodation for her disability, the respondent would have been required to demonstrate that to create a part-time position would have presented a hardship for it.

 

NOTE: In her petition for commission review the complainant has contended that the administrative law judge was biased against her. The complainant has not elaborated upon this assertion, and the commission has no specific indication as to why she believes such bias existed. The commission's review of the record has revealed no evidence of bias on the part of the administrative law judge. Further, based upon its independent review of the same evidence that was before the administrative law judge, the commission agrees with the administrative law judge's ultimate conclusion that no violation of the Act was established.

 

cc: Attorney Mark A. Grady


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Footnotes:

(1)( Back ) The administrative law judge found that the respondent perceived the complainant as having a disability. The commission notes that the administrative law judge's decision is based, in part, on a medical document showing a diagnosis of arthritis, dated June 29, 2006, which is not in the record. However, other documentation, including an August 24, 2006 doctor's excuse and a medical document dated September 18, 2007, does establish that the respondent was aware the complainant was diagnosed with rheumatoid arthritis and that she had permanent restrictions as a result.

 


uploaded 2014/02/18