NICHOLAUS SCHULTZ, Complainant
V & H TRUCKS INC, 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:
Delete the first sentence of paragraph 24 of the ALJ's FINDINGS OF FACT.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
April 30, 2015
schulni_rmd . doc : 107 : 5 123.5
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The complainant was a route salesperson in the parts department of the respondent, a truck dealership. His regular job involved driving about 300 miles per day delivering truck parts to customers and soliciting orders from them for additional parts. Beginning in December 2009 the complainant lost the ability to drive due to a mental impairment, agoraphobia. It is undisputed that there was no accommodation that would have permitted the complainant to perform his regular job so long as he was unable to drive.
The respondent found temporary work inside for the complainant in January 2010, which did not involve driving. After about three weeks, the complainant was still unable to drive, and gave no indication when he might recover his ability to do so. The respondent gave him a choice between applying for FMLA and taking an unpaid leave of absence. The complainant chose to go on a leave of absence, beginning February 1, 2010. Approximately 15 months later, in May 2011, the respondent terminated the complainant's employment. At that time, the complainant had recovered some ability to drive short distances, but he remained unable to drive the distances required by his regular job, and there was still no indication when he might recover the ability to do so.
The ALJ found that the complainant's condition was a disability under the Wisconsin Fair Employment Act (WFEA), and that the respondent laid off the complainant, then terminated his employment, because of the restrictions that resulted from his disability; but also found that the actions taken by the respondent affecting the complainant's employment were not acts of discrimination in violation of the WFEA. (1) The ALJ also found that the respondent did not unreasonably refuse to accommodate the complainant's disability in violation of the WFEA.
In his petition for review, the complainant argues that the respondent unreasonably refused to accommodate his disability by not permitting him to continue working inside in January 2010, and by not engaging in a dialogue with him about other jobs he could have performed for the respondent.
The complainant has the initial burden of showing that a reasonable accommodation is available. Hutchinson Technology, Inc. v. LIRC and Roytek, 273 Wis. 2d 394, 416, 682 N.W.2d 343 (2004). An employer is not liable for refusing a reasonable accommodation if it demonstrates that doing so would have posed a hardship on the employer's program, enterprise or business. Wis. Stat. § 111.34(1)(b).
The complainant's inside job in January 2010 was not an existing position; it consisted of odd jobs cobbled together by the complainant's supervisor from various tasks that were within the responsibilities of other employees. The respondent had no obligation to turn these miscellaneous duties into a new position for the complainant, since such a position would not have been necessary to the respondent's business. Macara v. Consumer Co-op of Walworth County, ERD Case No. 8802872 (LIRC Feb. 14, 1992); Kinion v. Portage Schools, ERD Case No. CR200003066 (LIRC Sep. 19, 2003). At the same time that it was permitting the complainant to work inside, the respondent was experiencing an economic downturn and was in the process of laying off employees in the parts department. After about three weeks of keeping the complainant at work, there still were no open positions that the complainant was capable of performing. Under these circumstances, the respondent was justified in ending the complainant's temporary inside job, and doing so was not an unreasonable refusal to accommodate the complainant.
The respondent then offered the complainant the option of taking FMLA or taking a leave of absence. At that time he was still unable to drive, and there was no prediction when he would recover the ability. The complainant chose a leave of absence. Placing an employee on a temporary leave of absence in order to maintain his or her employment can itself be a reasonable accommodation.
Target Stores
v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998); Cehrs v. Northeast Ohio Alzheimer's Research Center, 155 F.3d 775, 782 (6th Cir. 1998). A lengthy and indefinite leave of absence, however, has either been found not to be a reasonable accommodation, or has been found to be a hardship on the employer, and therefore not required. See
King v. City of Madison, ERD Case No. CR200502359 (LIRC Dec. 21, 2007) (no duty to extend employee's leave when employee's inability extended for nearly 18 months, and medical information indicated that she would be unable to work "until indefinite time."). As the commission discussed in
Kinion, supra:
Although a temporary leave to permit medical treatment over a relatively short period of time may be a reasonable accommodation, the period of indefinite leave suggested here would not, particularly given the fact that the employer had already granted a series of medical leave requests spanning nearly a year's time period, none of which had enabled Kinion to return to work, and the fact that vacancies in positions to which Kinion would have been eligible to transfer occurred relatively infrequently. See, Target Stores, supra (a temporary leave to permit medical treatment over a relatively short period of time, which, if successful, will remove the difficulty in performing job-related responsibilities, may be a reasonable accommodation); Janocik v. Heiser Chevrolet, ERD Case No. 9350310 (LIRC Nov. 21, 1994) (a reasonable accommodation does not include keeping a job open for an employee who has been unable to work for an extended period of time and for whom there is no foreseeable return to work date); Lewandowski v. Galland Henning Nopak, Inc., ERD Case No. 199603884 (LIRC Jan. 28, 1999) (while a reasonable accommodation may entail holding a job open for a disabled employee who is away from the workplace on a medical leave of absence, an employer cannot reasonably be expected to hold a job open indefinitely when there is no indication the employee will ever be able to return to work). The commission concludes that it would have been a hardship to place Kinion on a period of indefinite leave to wait until a suitable transfer vacancy occurred.
In this case the respondent maintained the complainant's layoff status for over 15 months, from February 2010 to May 2011. As of May 10, 2011, when the respondent notified the complainant that his employment was terminated, the complainant was still unable to drive more than short distances, and therefore was unable to return to his regular job with or without accommodation. As discussed below, there was no other open position which he was capable of performing. Under these circumstances, as of May 2011 it was no longer a reasonable accommodation to continue the complainant's layoff status.
The complainant argued that the respondent failed to engage in an interactive process to explore other positions by only allowing him to return to his old position. The evidentiary record does not support this argument. (2) Communication between the complainant and respondent continued during the complainant's layoff-he was invited to call weekly and provide an update of his status. This not only allowed the respondent to monitor whether the complainant was capable of returning to his regular job, it also gave the complainant an opportunity to inquire about other openings. In October 2010, the complainant inquired about filling a shipping and receiving position upon the retirement of the person holding that position. That position, however, never was opened or filled, due to an economic downturn. In April or May of 2011, the complainant had a conversation with his supervisor about a possible opening for a truck parts counter salesperson. This position was never filled because the incumbent who initially planned to transfer decided not to leave the position. In addition, there were two reasons why the complainant was not a good candidate for the position. First, the position required regular driving because, as a second shift position, there was no other staff person available to transport parts to and from the facilities where they were stored. The complainant conceded that a second shift counter sales position was more likely to require driving than a first shift position. (Ex. R-22, Deposition of complainant, pp. 110-111). Second, the complainant did not have much experience handling complex parts transactions, which required the ability to assess a customer's needs and to conduct computer research to locate the parts needed, so that the customer would have all parts necessary in a single transaction. The respondent wanted to hire a counter person with that kind of experience. Nevertheless, despite the supervisor's opinion that the complainant did not possess sufficient experience, he invited the complainant to apply, but the complainant never did. For several reasons, then, the fact that the complainant did not become a truck parts counter salesperson was not the result of a refusal to accommodate the complainant's disability. There was one other opening in May 2011, but it was a route salesperson position requiring substantial driving, similar to the complainant's regular job. The complainant was unable to perform this job, with or without accommodation.
Finally, the complainant took issue with a couple of the ALJ's rulings during the hearing. The complainant objected to the ALJ's refusal to exclude a respondent witness, Ray Immerfall. He contended that he never received a witness list from the respondent, and was unaware that Immerfall would be called as a witness. There is reason to doubt this contention, because the complainant was in possession of the respondent's exhibits and cover letter, which appeared to have been mailed along with the witness list. Even assuming the complainant did not receive the witness list, however, he conceded that he became aware four days before the hearing that Immerfall was a potential witness, so he had some time to prepare for testimony from him. The commission does not conclude that the ALJ abused his discretion by allowing the testimony. In addition, the commission, having reviewed the testimony of Immerfall, does not find it to be crucial to a decision in favor of the respondent. Therefore, its inclusion in the record, even if it were error, could not be more than harmless error, and would not be grounds for reversal. Obasi v. Milwaukee School of Engineering, ERD Case No. CR201003882 (LIRC Oct. 14, 2013).
The complainant also argued that the ALJ cut off his questioning of a respondent witness, Mike Renderman, regarding his testimony that driving was a requirement for the truck parts counter sales job. As recounted in the respondent's reply brief, pp. 10-11, the ALJ did not cut off the complainant's ability to question the witness further about the driving requirement for the position. Through the complainant's questioning, it was established that the advertisement for the job did not specifically state that applicants be able to drive, but it did require applicants to pass a driving background check. The ALJ then asked the witness a follow-up question: Would you be doing a background check on a driver's license if driving wasn't part of the job?" to which the witness responded "No, sir." The ALJ then commented "All right. Let's move on." (Tr. 119). The ALJ did not prevent further questioning about driving being a requirement of the job. Also, the witness was later recalled to the stand during the respondent's case, and again testified about driving being a requirement of the position (Tr. 187-188), opening the opportunity for the complainant to re-visit the subject on cross-examination, but he did not take the opportunity to do so. The ALJ's follow-up question and comment did not deprive the complainant of a fair opportunity to question the witness about driving being a requirement for the truck parts counter sales job.
cc:
Attorney Sarah Matt
Attorney Jennifer Ciralsky
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