STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RICHARD J. NORTON, Complainant

CITY OF KENOSHA, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9052433

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter on May 21, 1993. A timely petition for review was filed by the City of Kenosha.

The commission has considered the petition and the positions of the parties, it has reviewed the evidence which was submitted to the administrative law judge, and it has consulted with the administrative law judge concerning his personal impressions as to the credibility of witnesses.

Based on this review, the commission now makes the following:

FINDINGS OF FACT

1. Complainant Richard Norton ("Norton") began working for the City of Kenosha ("city") in 1963, and he began working in the city's Streets Department in 1970. In 1986 he assumed the position of Construction and Maintenance Worker II, which he has held since that time. In that position he acts as a custodian assigned to the Streets Department yard and building, where his duties includes such things as opening gates, maintaining the yard, shovelling snow, and general custodial functions. At the times material to this complaint, he usually worked an 8-hour 40-minute shift plus a 1/2 hour duty free lunch. When required, he may also be called upon to do work in the construction maintenance classification, or to drive a snowplow on the city streets.

2. The employees of the city are represented for collective bargaining purposes by AFSCME Local 71 ("union"). Under the collective bargaining agreement between the city and the union, the city has the right to schedule and assign employees to emergency overtime, including snowplowing, unless the employee has a valid medical excuse. Generally, Streets Department employees are assigned to snowplowing first, and other departments are then tapped if more drivers are needed. Because overtime is desired by some employees on some occasions, the union has also bargained language in the collective bargaining agreement which requires that overtime work shall be "divided as equally as possible". This requires the City to maintain records showing who has been offered overtime work, so that offers may be made on an equitable basis. Records are kept of the amount of overtime work done by and offered to each employee. If an employee is offered overtime work and turns it down, that employee is treated as if they had worked it, for overtime equalization purposes.

3. Norton suffers from atherosclerotic heart disease, which was diagnosed when he suffered a heart attack, at age 44, in April 1988. He returned to work about 3 months later with a light duty restriction from his physician, to continue for a month.

4. In September and November, 1988, Norton brought in notes from his physician, which stated that he was to avoid excessive fatigue and to have no mandated overtime, was not to exhaust himself, and was to work the hours he felt he could work. Norton gave these notes to his supervisor.

5. Sometime in late December 1988, Streets Department Superintendent John Prijic ("Prijic") assigned Norton to work another shift after the end of his regular shift doing emergency snowplowing overtime. Norton told him that he could not work a 16- hour shift. Prijic responded by saying that he just wanted to make sure that Norton was doing all he could. Norton in fact did work 2 hours of additional overtime doing snowplowing that day after his regular shift ended, and he then went home. It was within his medical restrictions for him to do that amount of work, as he felt comfortable doing that amount of overtime and was allowed to go home when he got tired.

6. Norton was not disciplined, criticized, or adversely affected in any way for not working the full extra shift he was assigned on this occasion in late December 1988.

7. On February 5, 1989 Norton was assigned to work overtime and voluntarily did 5 hours of snowplowing following the end of his regular shift.

8. On February 13, 1989 Norton was assigned to work overtime and voluntarily did 4 hours of snowplowing following the end of his regular shift.

9. Sometime early in November 1989, Prijic came to Norton and asked him which of the two "salt run" overtime lists he wanted to be on. Norton indicated that he could not work extended days, just 3 to 4 hours beyond his regular shift, and that he did not want to be on the high overtime list. Prijic said something to the effect that Norton's medical excuses had been turned over to a Personnel Department employee, Ken Horner ("Horner"), and that they would see.

10. On November 22, 1989, Norton was told that he was assigned a 16-hour shift (i.e., an additional shift past his regular shift). When he got the assignment, Norton told Prijic that he had showed him his medical excuses, that he had told Prijic he would do what he could and would work extended hours, but that he had also told him that he would not work 16-hour shifts. Prijic simply accepted this response. After telling Prijic this, Norton voluntarily worked approximately 5 hours of overtime that night.

11. Norton made his own decision when to come in off the road on the evening of November 22, 1989. When he finally pulled into the Streets Department yard at around 7:00 P.M., he was asked to go back out for an hour to "show the ropes" to a new employee. He understood that he could refuse to do this. Nevertheless, he did so voluntarily.

12. Norton worked no more hours than he felt comfortable working on the night of November 22, 1989, which is what his medical restrictions required. He was not punished or reprimanded for not doing any more work than he did.

13. On January 25, 1990, Norton was assigned to work overtime and voluntarily did 4 1/2 hours of snowplowing following the end of his regular shift.

14. On February 22, 1990, Norton worked his regular shift and went home. A snowfall started that afternoon. By evening it had become apparent that it was going to be heavy, and the City declared a snow emergency. At around 7:00 P.M., Prijic instructed the Streets Department dispatcher, Bob Schwab ("Schwab"), to start calling employees for overtime. The snowfall was a substantial one, and so was the snowfighting effort. An attempt was made to contact every single employee of the Streets Department that night. Eventually, all but 4 of the Streets Department employees came in to work on plowing that night. The effort extended beyond the Streets Department, to the extent that approximately 100 of the 148-odd members of Local 71 ended up on the streets that night.

15. In the course of his calling, Schwab called Norton's house at around 8:00 P.M. Norton had gone to bed and was asleep, and his mother answered the phone. She told Schwab that Norton was asleep. Schwab then told Prijic that Norton's mother was reporting that he was asleep, and Prijic told Schwab to ask Norton's mother to wake him. She did so, and Prijic then spoke to Norton. Prijic told Norton that he was sending out a crew to plow, and he asked Norton to come in at 11:00 P.M. Norton said that he could not get his rest if he did so, and that he would not. Norton also stated that he was not physically able to come in. Prijic said something to the effect of "okay" or "fine," "goodbye," and hung up.

16. Prijic accepted Norton's refusal to come in, and Norton suffered no adverse action as a consequence of declining to come in.

17. On the following day, February 15, Norton did 3 hours of overtime snowplowing following the end of his regular shift.

18. Following the call to his home on the evening of February 14, Norton complained to Jeff Warnock ("Warnock"), the union's Vice President, and to the union's President, Lynn Holze ("Holze"). He also gave Holze some materials, including a written narrative.

19. Norton's communications to his union did not assert a belief on his part that any employment discrimination in violation of the Fair Employment Act was occurring.

20. On March 12, 1990, there was a meeting involving Norton, Prijic, and Horner to discuss Norton's complaint. In that meeting, there was discussion about the fact that Norton took medication at night connected with his heart problems which made him drowsy and which made it difficult for him to wake up, and there was also discussion of his sleep habits. This was the first time that Norton discussed his medication or his sleeping habits with his supervisors. In that meeting, an agreement was arrived at that was acceptable to all concerned, that Norton would not be asked to come in prior to the start of his normal shift, or to work overtime after the end of his shift for any longer than he felt able to do so without becoming fatigued, and in no event after approximately 7:00 P.M., so that he would not be asked to work days longer than approximately 12 hours. It was also agreed that he would not be called with requests to come in to work overtime after he had gone home. These terms met Norton's medical restrictions fully.

21. In the meeting of March 12, 1990 no assertions were made that Norton or his union believed that any employment discrimination in violation of the Fair Employment Act was occurring.

22. From the time he had his heart attack in April 1988 until March 12, 1990, Prijic had in practice allowed Norton to decide for himself when he had worked to the point of fatigue and wished to stop working, and Norton had never been disciplined or even threatened with discipline for not working a 16-hour shift. From March 12, 1990 onward, the City complied fully with the terms it agreed to expressly in the meeting of March 12.

23. The City prepared a written agreement that was submitted to Norton and his union representatives in a meeting held on June 29, 1990. While it incorporated the terms agreed upon for Norton, it contained a provision indicating that the treatment of Norton would not necessarily be extended to other employees and requiring the union to agree that it would not file a grievance or pursue the grievance of any other employee as it related to the agreement. The Union would not accept this. Norton also declined to accept the agreement as drafted because he was insisting on an apology from Prijic for having called him at home when he was asleep. Norton and his union representatives therefore declined to sign the written agreement offered by the City on June 29, 1990. They indicated that the matter would be pursued as grievance under the collective bargaining agreement.

24. A few days later, on July 2, 1990, Prijic informed Norton and his union steward that effective July 16, he planned to eliminate the 40 minutes of regular daily overtime that Norton had been working for some years. They immediately expressed their opposition to this and warned that if Prijic did so they would file a grievance over it. They did not assert that they believed that the plan to eliminate the overtime involved any employment discrimination in violation of the Fair Employment Act. Later that same day, Prijic contacted Norton and told him that he should just forget what he (Prijic) had said earlier about eliminating Norton's daily overtime and that the matter was being reconsidered.

25. The city did not eliminate Norton's regular daily overtime at any point prior to the filing of the complaint in this matter.

26. After Norton and the union rejected the draft agreement on June 29, 1990, Norton reduced the matter to a formal grievance under the collective bargaining agreement, which was filed on August 2, 1990. At the meeting at which this grievance was filed (attended by Prijic, Norton, and Palmer), another agreement was arrived at orally. With respect to the matter of the treatment of Norton it provided for the same terms as those earlier agreed to on March 12 and incorporated in the written proposed agreement presented and rejected on June 29. In addition, Prijic offered Norton an oral apology in this meeting. The meeting ended with Prijic's indication that he would prepare a written response to the grievance incorporating the terms that had been orally agreed on.

27. The proposed written agreement responding to the grievance was presented to Norton and the union in a meeting on August 14. Unlike the previous agreement, it contained none of the language about how other employees would be treated which the union had objected to in the earlier document. It related solely to Norton, and it provided everything Norton wanted in terms of recognition of his medical limitations. It also contained a final paragraph which recited that it represented the full and complete agreement between the parties and that it would not be used as precedent for or against either the City or the Union "in this or any other form" (sic) or by any agent of either party "in this or any other form" (sic) at any time in the future. Considering its language in its entirety, this paragraph could not reasonably be understood as waiving Norton's rights to pursue some other kind of complaint against the City. It appears to have been an attempt to provide only that, if some other kind of complaint were pursued, the settlement agreement could not be used as "precedent" in that subsequent action.

28. The union had no problem with this language, but Norton asserted that he did, and he refused to accept it. The union thereafter refused to process Norton's grievance any further, because the language which had been contained in the proposed grievance resolution gave Norton everything he had been seeking. Norton filed his discrimination complaint with the ERD shortly after this.

29. In assigning Norton to a 16-hour shift in late December 1988, asking Norton in November 1989 which "salt run" overtime list he wanted to be put on, assigning Norton a 16-hour shift on November 22, 1989 and asking him to take a new employee out for an hour of training when he came in that night, and calling Norton at home after he had gone to sleep on February 14, 1990, neither Prijic nor any other agent of the city was acting with any animus against Norton because of his handicap.

30. Prijic's tentative decision to eliminate Norton's 40 minutes of regular daily overtime was not motivated by any belief on Prijic's part that Norton was opposing a practice by the city which Norton believed to be employment discrimination in violation of the Fair Employment Act, and Prijic had no such belief.

Based on the FINDINGS OF FACT made above, the commission now makes the following:

CONCLUSIONS OF LAW

1. The City of Kenosha is an employer within the meaning of the Wisconsin Fair Employment Act, sec. 111.31 - 111.395, Stats.

2. Richard Norton did not engage in opposition to any discriminatory practice or make a complaint, testify or assist in any proceeding under the Wisconsin Fair Employment Act, within the meaning of sec. 111.322(3), Stats., and the City of Kenosha did not discipline or otherwise discriminate against him on any such basis within the meaning of sec. 111.322(3), Stats.

3. The City of Kenosha did not harass or otherwise discriminate against Richard Norton because of handicap, within the meaning of sec. 111.321, 111.322, 111.325, or 111.34, Stats.

4. The City of Kenosha did not refuse to reasonably accommodate Richard Norton's handicap, within the meaning of sec. 111.34, Stats.

Based on the FINDINGS OF FACT AND CONCLUSIONS OF LAW made above, the commission now makes the following:

ORDER

That the complaint in this matter be dismissed.

Dated and mailed March 16, 1994

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

Complainant asserts that there was handicap discrimination, harassment because of handicap, and a failure to accommodate his handicap in that Respondent made work assignments contrary to Norton's medical restrictions without even bothering to check with Norton's physician to see if the assignments were consistent with the restrictions; he also asserts that there was retaliation for opposition to discriminatory practices when Prijic decided to reduce Norton's daily overtime. Respondent argues that it did accommodate Norton's restrictions, that it never required him to work beyond them, that it had no reason to know or suspect prior to February 22, 1990 that Norton should not be called in the evening, and that it did not retaliate against him in connection with removal of the daily overtime because the decision was almost immediately rescinded.

Handicap -- There is no issue here about whether accommodation of Norton's handicap would have been a hardship; the City rests its defense on an assertion that it did reasonably accommodate Norton's handicap. The commission agrees.

Norton's medical restrictions allowed him to work overtime voluntarily to the point at which he became fatigued. The essentially subjective nature of this meant that Norton would have to take the lead role in deciding when, if, and how much overtime he was going to do. Combined with this was a contractual scheme in which the employer was obliged to offer overtime on an equitable basis to all employees. Because Norton could do voluntary overtime and in fact elected to do so on some occasions, because only Norton could say on any particular occasion whether and how much overtime he could do, and because the City had to offer overtime to all employees, what happened here is understandable. The City's failure to contact Norton's physician for clarification of the nature of his restrictions is also unremarkable. The restrictions were not unclear. They provided that Norton could do as much as he felt comfortable doing. That obviously varied, as evidenced by the fact that Norton sometimes worked as much as 5 hours of overtime and sometimes worked as little as 2 hours. This meant Norton would have to indicate what he felt comfortable doing. This meant that the City would have to ask, or to simply make assignments and rely on Norton to state when he found them to be too much for him -- and this is what happened. The commission is unwilling to find that the city violated the law simply by asking, or by making such assignments, when it is clear that it never required Norton to do more than he wished or disciplined him for doing less than he was asked or assigned.

What Norton's theory fails to deal with is the fact that these were "assignments" in name only. Norton has conceded that from March 12, 1990 onward, the City fully complied with the accommodation he desired, which was reflected in paragraph 2 of C.Ex.6. But what is more, the City had as a practical matter been following those guidelines at all times even prior to March 12, 1990 (with the exception of the understanding about not calling Norton after he had gone home). Although there were a few occasions on which the City made overtime "assignments" to Norton, it had allowed him to decide for himself whether and to what extent to accept those assignments. Norton was never disciplined or even threatened with discipline for not working the full hours of overtime he was "assigned". He was consistently allowed to stop working when he felt like it. Norton has not credibly claimed that he ever worked any longer than he felt he was able to.

With respect to the call in the evening that woke Norton up, there was nothing in any of the medical excuses that Norton presented that would have alerted the City to the fact that he took medications which made him drowsy and that he fell asleep early in the evening. It is unreasonable to fault the employer for not asking Norton or his physician about this prior to the point at which something occurred (like the February 22, 1990 incident) which would provoke inquiry. The commission found the testimony of Warnock, that there was some discussion of this topic in November, 1989, to have been unreliable. The commission believes that Warnock was uncertain in his recollection of when various things occurred. In consultation with the commission, the administrative law judge stated that he had this impression of Warnock. The commission believes that the most persuasive evidence is that the need for special concern about Norton's sleeping patterns did not come to the city's attention until the March 12, 1990 meeting, after the call was made.

On this basis, the commission concludes that there was no unreasonable failure to accommodate Norton's handicap. If an employer offers an accommodation which effectively eliminates the conflict between the handicapped employee's abilities and the job requirements, and which reasonably preserves the affected employee's employment status, the accommodation requirement has been satisfied. Owen v. American Packaging Co. (LIRC, February 1, 1991); Hubbard v. Taylor Enterprises (LIRC, August 15, 1986). While Norton may have preferred a different kind of accommodation here -- not to even be asked about overtime -- the actual practice of the City served to accommodate Norton's handicap in a way that reasonably preserved his employment status. In fact, Norton's employment status was simply not affected here in any significant way.

While Norton claims that he was discriminated against because of handicap in that he was "harassed, he conceded that there were, in total, only four acts of "harassment": 1) he was assigned a 16-hour shift in late December 1988; 2) he was asked in November 1989 which "salt run" overtime list he wanted to be put on; 3) he was assigned a 16-hour shift on November 22, 1989 and asked to take a new employee out for an hour of training when he came in that night; and 4) he was called at home after he had gone to sleep on February 14, 1990. However, as noted above, he was always allowed to stop work when he felt he needed to and he was never disciplined or even threatened with discipline. Furthermore, the commission has found that none of this was the product of any intent to harass Norton because of his handicap.

Certainly, it is possible to imagine a case in which an employer persistently pressures a handicapped employee to do work beyond his medical restrictions by threatening discipline if he does not do so, and then tries to avoid liability for this harassment by claiming that it never actually carried through on its threats. However, this is not such a case, by any stretch of the imagination. There were, by Norton's admission, never even any threats of discipline. Furthermore, the instances of alleged harassment were few and far between.

The commission was not persuaded that Prijic had any kind of animus against Norton because of his heart condition. The mere fact that on a few occasions he asked Norton to work long shifts, is insignificant as proof of any kind of animus against persons with handicaps, in view of the situation here. Prijic and the city faced potential objections from the union if they assigned snowplowing overtime to employees who did not want it, potential objections from the union if they did not offer snowplowing overtime to employees who did want it, potential objections from the union if they did not make offers of snowplowing overtime equitably, and potential objections from the citizens of Kenosha if they did not get the snow off the streets. Furthermore, the commission is not inclined to infer some kind of improper animus against handicapped persons on Prijic's part based on the evidence Norton offered about Prijic's alleged persecution of other employees. The commission believes that the witnesses who offered that evidence were not entirely impartial. The contentiousness of relations between Prijic and the union is very apparent in the tapes Norton surreptitiously made of the meetings arising out of his complaints. This odor of mine-run union-management conflict permeates the claims of the witnesses to Prijic's alleged harassment of other employees.

The commission carefully considered the comments of the administrative law judge concerning his personal impressions as to the credibility of witnesses who appeared before him. He indicated that he questioned Prijic's credibility, and referred to his belief that he had testified inconsistently in some cases concerning what he did or did not say in various meetings which turned out to have been taped by Norton. The commission is not as influenced by this aspect of Prijic's testimony as was the administrative law judge. It is more persuaded by the fact that what actually happened to Norton here was insubstantial in terms of any actual effect on his employment, and understandable given the constraints the city operated under regarding snowplowing overtime and the self-defined nature of Norton's limitations (i.e., until he felt fatigued).

For these reasons, the commission reverses the administrative law judge's finding of handicap discrimination and failure to accommodate.

Retaliation -- Norton's retaliation claim related to the assertion that the announcement of an intention to cut his regular overtime on July 2 was in retaliation for certain previous conduct alleged to have been protected from retaliation by the Fair Employment Act.

Section 111.322(3), Stats. provides that it is an act of employment discrimination:

(3) To discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter.

This language has been interpreted as creating two potential types of issues, referred to as "opposition" and "participation". The latter case is restricted to situations in which there is a complaint filed with the ERD under the WFEA and there is allegedly discrimination against the one who filed it, or one who participated in investigation of it. Clearly, there is no "participation" issue here, since the alleged "retaliation" against Norton preceded the invocation of the ERD's jurisdiction. The only possible claim is therefore one of discrimination because of protected "opposition".

Opposition does not have to involve a formal complaint to the ERD, but can take the form of informal opposition expressed directly to the employer. See, e.g., Berg v. LaCrosse Cooler (LIRC, 3/21/81); Herslof Optical v. DILHR (Dane Co. Cir. Ct., 3/28/78). However, as the commission has emphasized on a number of occasions, a finding of retaliation is ultimately a finding about the employer's motivation: i.e., a finding that the employer believed that the employee was objecting to employment discrimination and retaliated against the employee because of that. Therefore, the opposition must have been recognizable to and recognized by the employer as involving a claim of employment discrimination. See, e.g., Cangelosi v. Robert E. Larson & Assoc., Inc. (LIRC, 11/9/90); Keller & Keller v. City of Brodhead (LIRC, 4/29/87). Even in cases in which it is clear that an employee protested some employer action and that the employer was aware of this protest, there will be no liability for "opposition" discrimination under employment discrimination laws if the employee did not, when they expressed their protest, indicate their belief that alleged employment discrimination was being protested. See, e.g., Theiss v. John Fabick Tractor Co., 532 F.Supp. 453 (E.D. Mo. 1982), McCluney v. Jos. Schlitz Brewing Co., 728 F.2d 924 (7th Cir. 1984), affirming 34 F.E.P. Cases 271 (E.D. Wis. 1982), Moncada v. El Paso Natural Gas Co., 40 F.E.P. Cases 556 (W.D. Tex. 1986).

There is no evidence in this record that Norton or his union representatives ever raised the issue of employment discrimination. Any argument that this was implicit in the objections they were raising is seriously weakened not only by the absence of any reference to discrimination, but also by the very obvious alternative explanation: that they were opposing what they believed to be violations of their collective bargaining agreement. Indeed, this is precisely what is suggested by the fact that they filed a grievance under the collective bargaining agreement. See, R.Ex.4. It is the refusal to drop this grievance which is alleged to have been the act that the City "retaliated" against Norton for. Yet the grievance involved no assertion that there had been employment discrimination. Rather, it was an assertion that there was a violation of a collective bargaining agreement. The "retaliation," if any, would have been retaliation for filing a grievance under a collective bargaining agreement. Indeed, in the meeting between Norton, Prijic and Palmer on July 3, 1990 in which Prijic discussed his plan to reduce Norton's daily overtime, and Prijic told Norton that he should not look at it as an attack on him personally, Palmer responded:

"What else are we gonna look at? Here we have grievance meetings, and then all of a sudden -- bam! -- 'wait a minute -- Rich Norton -- we're gonna eliminate the overtime.'"

It is the Municipal Employment Relations Act, Sec. 111.70 et seq., which most directly and most expressly provides protection from retaliation motivated by the fact that a person has filed a grievance alleging violation of a collective bargaining agreement. Statutory provisions such as Sec. 111.70(3)(a)(3), Stats., which provides that it is a prohibited practice to encourage or discourage membership in a labor organization by discrimination in regard to hiring, tenure, or other terms or conditions of employment, have consistently been interpreted as making it unlawful for any employer to retaliate against an employee because the employee filed a grievance under a collective bargaining agreement. See, e.g., NLRB v. City Disposal Systems, 465 U.S. 822, 836, 79 L.Ed.2d 839, 104 S.Ct. 1505 (1984). The anti-retaliation provision of the Fair Employment Act found in sec. 111.322(3), Stats. has an identifiably separate purpose, which is to protect the ability of employees to complain to their employers that the employees believe them to be engaging in employment discrimination, and to protect the right of employees to bring such complaints directly to the Equal Rights Division. It is not intended to serve as a catch-all protection for all manner of employee protests merely because they are susceptible in hindsight to an interpretation involving discrimination.

In conclusion, it is not necessary for the commission to reach the question of whether Prijic's rapidly abandoned plan to cut Norton's overtime was in response to Norton's refusal to settle his grievance, because neither that grievance nor the refusal to compromise it involved or were accompanied by any indication of a belief that there had been employment discrimination. There was thus no activity protected under sec. 111.322(3), Stats. For these reasons the commission reverses the finding of "retaliation."

110

cc: Arthur Heitzer
James W. Conway

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