MICHAEL A VOSEN, Complainant
STATE OF WI DEPT OF REVENUE, 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 and conclusion in that decision as its own, except that it makes the following modification:
The ALJ's ORDER is deleted, and replaced with the following:
2. Forfeiture for failure to comply with Final Order. The statutes provide that every day during which an employer fails to observe and comply with any Final 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).
3. Cease and desist. The respondent shall not hereafter refuse to reasonably accommodate the complainant's disability.
4. Compliance Report. Within 30 days of the date on which this decision becomes final, the respondent shall file with the commission a Compliance Report detailing the specific actions it has taken to comply with this Order. The Compliance Report shall be prepared using the "Compliance Report" form which has been provided with this decision. The respondent's Compliance Report should be sent to:
Labor & Industry Review Commission
Compliance
P.O. Box 8126, Madison, WI 53708
or faxed to (608) 267-4409
or emailed to lirc@dwd.wisconsin.gov
The respondent shall mail a copy of the Compliance Report to the complainant at the same time that it is sent to the commission. Within 10 days from the date the copy of the Compliance Report is mailed to the complainant, the complainant shall file with the commission and serve on the respondent a response to the Compliance Report.
Notwithstanding any other actions a respondent may take in compliance with this Order, a failure to timely submit the Compliance Report required by this paragraph is a separate and distinct violation of this Order.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed
April 25, 2014
vosenmi_rsd . doc : 107 : 5 123.5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
This case involves a claim that the respondent refused to reasonably accommodate a disability under Wis. Stat. ยง 111.34(1)(b). It was not disputed that the complainant is an individual with a disability under the Wisconsin Fair Employment Act (WFEA). His right arm was amputated below the elbow in 1976, and as a result he was substantially limited in life and work activities (e.g., cooking, getting dressed, typing, lifting and carrying). (1) He also was diagnosed as having chronic lower back pain and degenerative spine disease, managed by medications, physical therapy and lumbar spinal injections. The exact limitations imposed by the complainant's back condition were not clear; the only medical opinion related to it suggested that when traveling, the complainant would be better off in his personal car, with heated seats and appropriate ergonomics for him, than in a state vehicle. He also was diagnosed as having depression and anxiety, with incapacitating episodes requiring intermittent time off work.
In his complaint the complainant alleged that the respondent discriminated against him by not granting a variety of requests related to his working conditions, which he characterized as requests for accommodations of his disability. He also alleged that the respondent retaliated against him for opposing the respondent's refusal to accommodate him. At the time he filed his complaint, September 2010, the complainant was still employed by the respondent, and remained employed by the respondent until March 25, 2011. The complainant did not amend his complaint to allege that his separation from employment was in violation of the WFEA.
The ERD investigator found no probable cause to believe that the respondent retaliated against the complainant for opposing discrimination, but found probable cause to believe that the respondent refused to reasonably accommodate his disability. The complainant did not appeal the NPC portion of the initial determination so that has become final. The case proceeded to a hearing on the merits on the issue of reasonable accommodation only.
The ALJ found discrimination on only one of the several accommodation issues raised by the complainant, the request to be allowed to telecommute, and issued a cease and desist order. The respondent did not petition for review of the ALJ's determination that it unreasonably refused to accommodate the complainant by denying his request to telecommute. This case has come to the commission on the petition of the complainant only.
The complainant's petition, however, is devoid of content. It simply declares that it is a petition for review. The commission, therefore, has no specific indication of what the complainant claims was erroneously decided by the ALJ. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the ALJ that were adverse to the complainant are supported. Concluding that they are, the commission has adopted them as its own. The commission has left standing the ALJ's decision regarding the respondent's refusal to allow telecommuting inasmuch as the respondent did not petition the commission for review of that decision.
Evidence supports ALJ's findings and conclusions adverse to the complainant
A complainant has the initial burden of proving 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); Bartle v. Jack Links Beef Jerky, ERD Case Nos. CR200205132 & CR200205134 (LIRC Feb. 9, 2006). A reasonable accommodation is one that effectively enables the disabled individual to perform the job-related responsibilities of his or her employment. Target Stores v. LIRC, 217 Wis.2d 1, 576 N.W.2d 545 (1998). The need for an accommodation arises due to a conflict between the individual's disability and the demands of the individual's employment. A reasonable accommodation is a modification in job requirements that is shown to be medically necessary to enable the individual to adequately perform his or her job. Cave v. Milwaukee County, ERD Case No. CR200704118 (LIRC Jan. 30, 2004).
The complainant was unable to show an unreasonable refusal to accommodate with respect to all but one of his requests, due to a combination of failing to show the request to be medically necessary and failing to show that the request was actually refused by the respondent.
Laser Measuring Device
As part of his job, the complainant made on-site appraisals of manufacturing and telecommunications properties. This often involved taking property measurements. In the spring of 2008 the complainant asked for a laser measuring device. The medical necessity for this request would seem apparent if the alternative to a laser device was a standard tape measure, which would be awkward to use with only one hand. The evidence indicated, however, that an available alternative to the laser device was a wheel measuring tape; the advantage of a laser device over a wheel measuring tape was not so apparent. In any case, the respondent did not refuse the request. It was turned over to a human resources employee, who sent a few questions to the complainant in July 2008 in order to gauge the value of the laser device over whatever the complainant had been using. The complainant's response, as noted by the ALJ, was to say "Let's just forget it." The human resources employee gave the complainant another opportunity to answer her questions, but he did not do so. In 2010, when the complainant renewed his request, it was granted. There was not, then, an unreasonable refusal to accommodate the complainant with respect to his request for a laser measuring device.
Laptop Notebook Harness
It was not disputed that the harness would have made it easier for the complainant to carry and use a laptop when he was in the field. The evidence supported the ALJ's conclusion, however, that the complainant failed to show the harness was necessary to resolve a conflict between his disability and the demands of the job, because laptops were never deployed in the field. Since the laptops were never deployed, the need for a harness never actually arose.
Ergonomic Assessment
The ergonomic assessment was not necessarily a tool for accommodating a disability, but in this case the complainant made it clear in his request in September 2009 that he wanted the assessment because of his missing right hand and his lower back issues. The respondent was on notice, then, that the complainant's request was based on his disability. As noted by the ALJ, the respondent, through negligence, failed to schedule an assessment for about two months, then purposely delayed scheduling it for a few more months because the complainant was soon to be transferred from Fond du Lac to Madison. After the move in December 2009, the respondent again negligently failed to schedule an assessment for about nine more months. This was not a reasonable response to the complainant's request, and amounted to a failure to engage in an interactive process to discover whether there might be one or more reasonable accommodations for the complainant's disability. That does not, on its own, constitute a violation of the law. It raises the question whether the parties could have identified a reasonable accommodation if the respondent had engaged in the interactive process. Smith v. Wisconsin Bell, Inc. (AT&T), ERD Case No. CR200800434 (LIRC Apr. 9, 2012). The complainant failed to prove that the delay amounted to a failure to reasonably accommodate his disability, because he did not present evidence of any reasonable accommodation that would have been identified by a timely ergonomic assessment.
Wheeled Carry Cart
Around December 2010, the complainant requested a cart to help him haul files and other work materials from his car to his office in Madison. It was not disputed that this would have accommodated the complainant's disability. The request was granted, and the cart arrived in late February 2011. The delay was due in part to the complainant's delay in selecting the cart he wanted from a catalogue. It was not shown that the delay was significant enough to be considered a refusal to reasonably accommodate him.
Flex Schedule
The complainant had a flex schedule, under which his workdays were nine hours, and he had every other Friday off. When he was placed on a performance improvement plan (PIP), his flex schedule was taken away, a typical consequence of being placed on a PIP. The complainant had used his day off under his flex schedule to schedule medical appointments, so he considered the flex schedule an accommodation for his disability. Even though the complainant's flex schedule was taken away, however, the respondent never denied the complainant time off for any medical appointment. The flex schedule, then, did not prove to be a medically necessary accommodation. A similar situation was presented in Cave v. Milwaukee County, ERD Case No. CR200704118 (LIRC Jan. 30, 2004), where the employee requested part-time work at the recommendation of his doctor, but the motivation for the recommendation was to assist the employee in getting to her medical appointments. The employer in Cave testified that there was no problem with the employee taking time off with advance notice for medical appointments. In this case and in Cave, a less drastic accommodation than a change in work schedule, namely, permission to go to medical appointments as needed, was sufficient to eliminate any conflict between the employee's medical condition and the demands of the employee's job. 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).
The commission therefore affirms the decision of the ALJ.
cc:
Attorney Mark Zimmer
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