Wis.LIRC ER Decision: Crivello - August 14, 1996 - Disability discrimination - sleep apnea, falling asleep at work - accommodation, burden - accommodation of 'clemency and forbearance' while medications adjusted; Remedy - mitigation, quitting subsequent job; receipt of SS disability benefits

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

MARY CRIVELLO, Complainant

TARGET STORES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9252123

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter finding that the complainant failed to establish that she was discriminated against by the respondent on the basis of her handicap. A timely petition for review was filed and, after considering the petition and the positions of the parties and reviewing the evidence submitted to the ALJ, the commission issued a decision on June 13, 1995 which reversed the ALJ's decision and found that the respondent violated the Wisconsin Fair Employment Act by refusing to provide the complainant with a reasonable accommodation.

The respondent filed a timely petition for review by the circuit court and, on February 14, 1996, the court issued an order vacating the commission's decision and remanding this matter to the commission for further consideration. The commission has carefully reconsidered this matter in light of the specific instructions provided by the circuit court and now issues the following:

FINDINGS OF FACT

1. The respondent, Target Stores, operates retail department stores in numerous locations, including Wauwatosa, Wisconsin.

2. The complainant, Mary Crivello, began working for the respondent in 1979, originally as a cashier and most recently as a cash counter. The complainant's duties as a cash counter included counting the money from the cash registers from approximately 22 different Target stores, keeping written records of the dollar amounts and denominations, encoding the checks, balancing the money against cash register receipts, and preparing bank deposits. The complainant's hours of work were from 7:30 a.m. until approximately 3:00 p.m., but she sometimes stayed as late as 4:00 p.m. if the work load or number of interruptions during the day demanded it.

3. The complainant's duties were performed exclusively in the respondent's cash office, a windowless room that measured approximately 6' x 12', to which the door was constantly kept locked from the outside. A camera was mounted in the cash office and the complainant was continuously videotaped. The office was also equipped with a security blind, something akin to a one-way mirror, through which the complainant could be observed unawares. The complainant worked alone and left the room only 4-5 times during the day in order to make photocopies or to run some errand. She was entitled to two 15 minute breaks per day and a half hour lunch break.

4. The respondent's progressive disciplinary policy provides that employes committing three "minor offenses" within a 6-month period are subject to discharge. Under the policy, an employe receives two warnings, a Phase I warning and a Phase II warning, prior to discharge.

5. In August of 1990, prior to the events leading to her discharge, the complainant was issued a Phase I disciplinary warning for the minor offense of "loafing"--sleeping on the job. The complainant had no recollection of dozing off and assumed that a cough medicine she was taking at the time had caused the drowsiness.

6. The complainant was not subject to any further discipline until March of 1992. On the morning of March 2, 1992, the respondent's Assets Protection Manager, Jill Lango, observed the complainant through the security blind in the cash office for approximately twenty minutes to half an hour, during which time the complainant "nodded off" on several occasions. Ms. Lango had seen the complainant sleeping on other occasions and arrived at the conclusion that the complainant frequently dozed off and that her sleeping generally began at about 10:00 a.m. Ms. Lango reported the sleeping to Kelly Moriarity, the respondent's personnel manager. Lango told Moriarity that the complainant would be counting the money, then would stop counting and lean to one side, then "pop back up." Lango also indicated that during the March 2 incident the complainant had leaned to the side and hit her head on the respondent's cash counting machine.

7. After the complainant's sleeping on the job came to Kelly Moriarity's attention, a management team meeting was held. Present were Kelly Moriarity; Sue Running, the respondent's assistant store manager; Camille Dukat, the general manager; and Tina Bell, the complainant's direct supervisor. At this meeting it was decided that the complainant should receive a Phase I warning for "loafing" and "unsafe acts."

8. When the respondent presented the complainant with the Phase I warning the complainant indicated that she had no recollection of sleeping on the job. Consequently, the respondent suggested that the complainant might want to see a doctor. The complainant took the respondent's advice and immediately made an appointment to see her physician, Dr. Teschan. She saw Dr. Teschan on March 10 and was given a complete physical examination including a battery of tests. On or about March 17 the complainant met with Dr. Teschan to discuss the results of the tests. Dr. Teschan indicated that the tests had come out in the normal range, but that he was referring the complainant to a pulmonary specialist to be tested for a sleep disorder.

9. Shortly thereafter the complainant talked to her supervisor, Tina Bell, about the result of her visit with Dr. Teschan. Ms. Bell in turn notified the management team that she had discussed the situation with the complainant, who indicated that the doctor had found a reason for her sleeping and had referred her to a specialist, but that she had no work restrictions at the time.

10. The complainant made an appointment to see the pulmonary specialist, Dr. Schachter, at the first available opening, which fell on April 10. However, before the complainant was able to meet with Dr. Schachter, another incident of sleeping on the job occurred. On March 24, Jill Lango observed the complainant sitting in her car in the respondent's parking lot with the motor running and her eyes closed. The complainant's shift had not yet begun at this point. After about a minute Ms. Lango observed the complainant open her eyes and "pop up." Later that morning Ms. Lango conducted surveillance of the complainant's office for about half an hour, during which time she saw the complainant nod off on several occasions for approximately 30 seconds each time. Ms. Lango informed Kelly Moriarity of what she had seen in the parking lot and about the complainant nodding off in her office. Ms. Moriarity then observed the complainant for approximately fifteen minutes through the security blind, during which time the complainant fell asleep approximately three times.

11. A management team meeting was held with respect to the March 24 sleeping incident. The management team discussed the situation and applied the respondent's Industrial Due Process Check List, which required it to consider mitigating circumstances before issuing any discipline. The management team determined that no mitigating circumstances existed and that a Phase II warning should be issued. A Phase II warning was prepared, which indicated that the complainant was loafing on the job and engaging in unsafe acts. The warning also stated that further sleeping on the job would result in the complainant's termination.

12. When the respondent presented the complainant with the Phase II warning it made a number of suggestions as to how the complainant might resolve the sleeping problem, such as by getting out of the cash office more often during her breaks, taking a leave of absence, or trying to work in another position, such as head cashier. The complainant responded that she liked her job and did not want to change anything.

13. On April 10 the complainant went to see Dr. Schachter, who made arrangements for her to undergo a sleep test known as a poly-somnogram. The complainant took the test on April 14 and, shortly thereafter, was advised that the test results showed she suffered from a condition known as obstructive sleep apnea. Sleep apnea, which is frequently caused by obesity, is a condition marked by some type of obstruction in the upper airway which affects an individual's breathing during sleep so that the individual does not get sufficient oxygen and has poor quality sleep. Because an individual with sleep apnea generally will not get sufficient sleep during the night, he or she often suffers from hyper- somnolence, which causes the afflicted individual to doze off uncontrollably during the day.

14. Dr. Schachter decided to put the complainant on a nasal inhaler and antihistamine in order to rule out the possibility that the condition was caused by hay fever. Dr. Schachter told the complainant that if the inhaler did not resolve the problem in a month's time he would put her on a device called a nasal CPAP (Continuous Positive Airway Pressure). The CPAP consists of a small mask which is connected to an air-producing machine and which is placed over the patient's nose at night during sleep. The machine forces air into the nose and the air acts as a brace which causes the back of the throat to remain open while the patient is asleep. According to Dr. Schachter, the majority of patients who use this device achieve relief from their symptoms and, if the nasal CPAP works, it virtually works by the next morning.

15. Shortly after her meeting with Dr. Schachter the complainant notified the respondent that she had been diagnosed with sleep apnea. The complainant explained that she was on an inhaler and that if the inhaler did not work she would be placed on a nasal CPAP machine. The respondent requested medical verification of the complainant's illness, and on May 1 the complainant submitted medical documentation from Dr. Schachter which described her condition and the treatment she was receiving. The complainant presented the letter to Kelly Moriarity, the personnel manager, and advised Ms. Moriarity that if she needed any more information she could call Dr. Schachter directly. Ms. Moriarity reviewed the letter and asked the complainant to explain sleep apnea to her. Ms. Moriarity also asked whether the complainant had any work restrictions and whether there was anything the respondent could do for the complainant in the workplace, to which the complainant responded that there was not.

16. On April 19, on or about the date on which the complainant learned that she had sleep apnea, the complainant underwent her annual performance evaluation. The evaluation was conducted by Tina Bell, who rated the complainant's performance satisfactory overall, the same rating she had received in the previous year. The evaluation contained the following comment with regard to the complainant's productivity:

"[The complainant] knows the basic duties of her job to the point of compacencey. [sic] If [the complainant] makes an attempt to treat her job as a new challenge daily, I am sure that it will help in detecting more encoding errors. You should have more time during your day to allow for training with the over & short reports, so that you'll have more insight to the consequences of c.o [sic] mistakes."

Although Ms. Bell's comment indicated that the complainant made some encoding errors, these errors were not attributed to the complainant's sleeping, but to her attitude. In the section of the evaluation devoted to initiative, Ms. Bell indicated that the complainant was "doing much better with leaving by 3 p.m." The evaluation contained no reference to the complainant's sleeping on the job. Sue Running reviewed the evaluation before it was given to the complainant and concluded that it was accurate based upon the complainant's performance for the year.

17. Shortly after the complainant was diagnosed as having sleep apnea she began using the inhaler prescribed by Dr. Schachter, but with no results. Thus, she continued to go without sleep at night and, consequently, to doze off during the day.

18. On May 24, 1992, a store security officer notified Kelly Moriarity that he had seen the complainant sleeping on the job. Ms. Moriarity watched the complainant through the security blind for about ten minutes, during time which the complainant fell asleep three or four times.

19. The following day another management team meeting was held. As before, the management team went through the respondent's Industrial Due Process Check List before deciding upon disciplinary action. According to Sue Running, the team considered mitigating circumstances, including the letter from Dr. Schachter and the fact that the complainant had another treatment option that she had not yet undertaken. These mitigating circumstances notwithstanding, a decision was made to discharge the complainant for loafing on the job.

20. On May 29, Sue Running notified the complainant that she had seen another episode of the complainant nodding off and that the complainant was being discharged for three instances of loafing on the job within a six-month period.

21. In July of 1992 the complainant was able to obtain the use of a nasal CPAP machine. She found that the machine enabled her to sleep through the night and that, as a consequence, her hyper-somnolence virtually disappeared.

CONCLUSIONS OF LAW

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant is handicapped within the meaning of the Act.

3. The respondent violated the Act by refusing to reasonably accommodate the complainant's handicap.

ORDER

1. That the respondent shall cease and desist from discriminating against the complainant because of her handicap.

2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position she held prior to her discharge. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford her all seniority and benefits, if any, to which she would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the sum she would have earned as an employe from the date of termination until such time as the complainant resumes employment with the respondent or would resume such employment but for her refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set- offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That the respondent shall pay the complainant's reasonable attorney's fees in the amount of $14,700.00 and costs in the amount of $1,409.70, for a total of $16,109.70 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $16,109.70 shall be made payable jointly to complainant Mary Crivello and to Attorney Christe J. McKittrick and delivered to Ms. McKittrick.

5. 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 Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin.

Dated and mailed August 14, 1996
crivema.rrr : 164 : 9

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

Procedural Posture--This case is before the commission on remand from the circuit court, which has issued the following instruction:

"On reconsideration, LIRC must consider whether the employe or the employer is required by the statute to raise the issue of accommodation and to propose possible means of accommodating the employe's handicap. Only if LIRC concludes that the employer bears this burden, and LIRC considers the May 1st exchange an insufficient offer on Target's part, will LIRC's conclusion that Target has violated the statute be reasonable. If LIRC concludes that the employe bears the burden of identifying accommodation, as is true under federal law, then Target cannot be liable for handicap discrimination under the statute. It is undisputed that Crivello did not raise the issue of accommodation with her employer, nor did she request accommodation." (Decision, at 10-11.)

After carefully reconsidering its decision in light of the court's instruction, the commission reissues its original decision. This memorandum opinion responds to the specific concerns raised by the circuit court. The commission presumes that its resolution of any questions of fact and law which were not addressed by the circuit court was deemed satisfactory by the court. For that reason, to conserve administrative resources and the time of all concerned, the commission has limited its reconsideration of this case to those matters which were specifically noted by the circuit court as areas of concern.

Merits -- The complainant's burden in a handicap discrimination case under the Wisconsin Fair Employment Act (hereinafter "Act") is to show that she is handicapped within the meaning of the Act and that there was an adverse employment action based upon that handicap. There can be no doubt that the complainant met her burden in this case. First, the respondent has stipulated that the complainant's sleep apnea constitutes a handicap within the meaning of the law, and this point is not in dispute. (1 ) It is also undisputed that the complainant was discharged for sporadically dozing off on the job and that the complainant's dozing was a direct result of her sleep apnea. Thus, the complainant's termination was, in legal effect, because of her handicap. See Bell-Merz v. Univ. of WI (Personnel Commission, March 19, 1993); citing Conley v. DHSS, (Personnel Commission, June 29, 1987).

The Act prohibits an employer from taking any adverse employment action against an employe based upon a handicap, unless the employer can demonstrate both that the handicap was reasonably related to the employe's ability to adequately perform the job- related responsibilities of his or her employment and that accommodation of the employe's handicap would pose a hardship on the employer's business. Copus v. Village of Viola (LIRC, December 10, 1987); Section 111.34(1)(b) and 111.34(2)(a), Stats. The commission is satisfied that the respondent has met its burden with respect to the first prong of this test. It is apparent that staying awake on the job was a job responsibility which the respondent imposed upon all of its employes and that, because of her sleep apnea, the complainant was unable to meet this particular requirement of the job. Where an employer uniformly imposes job-related responsibilities on its employes and an employe's handicap prevents him or her from meeting these job responsibilities, then the handicap can be said to be reasonably related to the employe's ability to adequately undertake the job-related responsibilities of his or her employment. Gordon v. Good Samaritan Medical Center (LIRC, April 26, 1988).

The commission then turns to the question of whether the respondent refused to provide the complainant with a reasonable accommodation for her handicap. In keeping with the circuit court's directive, the commission begins its analysis by specifically addressing the question of whether the employe or the employer is required by the statute to raise the issue of accommodation and to propose possible means of accommodating the employe's handicap. This is not an issue of first impression for the commission. Indeed, in a recent commission decision, the commission expressly noted that the Fair Employment Act contains no requirement that an employe specifically request an accommodation. Janocik v. Heiser Chevrolet (LIRC, November 21, 1994). Similarly, the Personnel Commission has held that it is the employer who bears the burden of proving that it has satisfied its duty of accommodation, and that the employe is not required to show she broached the issue of accommodation. Betlach-Odegaard v. UW-Madison (Personnel Commission, December 7, 1990). In Betlach-Odegaard the Personnel Commission noted that the Act imposes a duty of accommodation on the employer, and a requirement that the employe suggest that accommodations be considered would have the effect of rendering the Act nugatory "as to persons who are not legally sophisticated enough to be aware of the FEA's accommodation requirements, or not sophisticated enough in terms of vocational rehabilitation to be aware that a particular accommodation would be available that would allow him or her to perform the job." Id. at 5.

While the Act does not require an employe to specifically request an accommodation, this does not mean that the burden of identifying and proposing accommodations will always rest with the employer. Obviously, an employer is not required to raise the issue of accommodation if the employer is unaware of an employe's handicap, nor is the employer required to propose possible means of accommodation if the information necessary to do so is uniquely in the possession of the employe. However, in some cases the facts are such that the employer is aware of the employe's handicap and knows what type of accommodation the employe requires. Under those circumstances, it is reasonable to expect the employer to offer the accommodation even in the absence of a specific request from the employe.

In the instant case, the respondent knew about the complainant's handicap and was aware of how it affected her job performance. Moreover, the respondent was in as good a position as the complainant to know what type of accommodation was needed. The specific accommodation which the complainant required was clemency and forbearance; that given the respondent's awareness that the complainant's sleeping on the job was a matter beyond her control, and given its knowledge that she was undergoing treatment for the problem, the respondent refrain from firing her for "loafing" the next time it spotted her dozing. (2 ) An employer has an affirmative duty to provide accommodations and, in the commission's opinion, this was not the type of accommodation which the complainant should have had to specifically request.

The commission also notes that, although the complainant in this matter did not utter the words, "I request an accommodation," she did provide the respondent with the information necessary for it to recognize that one was needed. The fact that the complainant sought an accommodation should have been obvious in light of the fact that she told the respondent about her medical condition, provided it with a letter from her doctor, and invited the respondent to contact her doctor for further information. It is apparent that the complainant provided the respondent with this information with the understanding that the respondent would take it into consideration and grant her a certain amount of leniency as a result. Indeed, given that the respondent suggested that the complainant see a doctor and requested that she provide it with medical documentation, the complainant had a right to assume that the respondent was willing to provide an accommodation for her. If the complainant had been aware that the respondent's three strikes and out policy was going to be applied to her, even after the respondent learned that her sleeping was due to a handicap for which she was undergoing treatment, there is no logical reason that she would have taken the steps of presenting the respondent with a doctor's excuse or inviting the respondent to contact her personal physician. Thus, even if the commission were to conclude that the complainant had some obligation to request an accommodation, it would be inclined to construe her actions as sufficient to put the employer on notice that she was making such a request.

Having resolved the question of whether the complainant had an obligation to request an accommodation, the next question to decide is whether the respondent refused to provide a reasonable accommodation. The commission recognizes that on May 1, 1992, a few weeks prior to her discharge, the respondent asked the complainant whether there was anything it could do for her in the work place, to which the complainant responded that there was not. However, while asking an employe whether there is anything that can be done in the workplace may be considered a good start towards opening a dialogue about accommodations, it does not constitute an offer of a reasonable accommodation under the law. (3 ) The employer's duty to accommodate an employe is satisfied if it offers an accommodation which effectively eliminates the conflict between the handicapped employe's abilities and the job requirements and which reasonably preserves the employment status. Owen v. Am. Packaging Co. (LIRC, February 1, 1991). No such offer was made in this case. Further, while the fact that the complainant failed to respond in the affirmative to the respondent's question may suggest at first blush that she was slamming the door on the idea of accommodation or that she was not operating in good faith, the undisputed facts in this case belie such a conclusion. The complainant's statement that there was nothing the respondent could do for her in the work place was, in fact, accurate. The accommodation that the complainant required was not an assistive device or some similar tangible item which the respondent could have provided for her. Rather, the complainant needed the respondent to refrain from taking adverse actions against her when faced with the virtual inevitability that, until she had a reasonable opportunity to obtain effective medical treatment, she would again doze off while on the job. Given that the respondent understood what type of accommodation the complainant needed, its actions in asking her whether there was anything it could affirmatively do for her in the work place were of little consequence. It was the respondent's decision to summarily discharge the complainant for "loafing" on the next occasion it found her dozing which amounted to a refusal to provide a reasonable accommodation.

The commission next considers the question of whether the accommodation at issue in this case would have posed an undue hardship upon the employer. Although in its brief to the commission the respondent contended that to permit the complainant to continue working would have required it to accept less than adequate job performance and would have necessitated the payment of overtime, neither of these propositions is supported by the record. The respondent failed to establish that the complainant's handicap affected her ability to perform the essential functions of her job. While staying awake on the job was a job-related responsibility imposed by the respondent, the essential function of the complainant's job was to maintain an accurate daily count of the respondent's cash and to ensure that the cash was properly organized so that bank deposits could be made. The complainant performed these functions to the respondent's satisfaction, as evidenced by the fact that the respondent gave the complainant a satisfactory performance evaluation at a time when it was fully aware of her sleeping problem. See Harmer v. Virginia Electric & Power Co., 2 AD Cases 1283 (D.C. Va. 1993) (Employe's average job performance appraisals constitute affirmative evidence that his productivity was satisfactory). In fact, the only evidence to suggest that the complainant's performance may have been less than fully productive was the complainant's own testimony that her sleep apnea made her tired during the day and that her work was taking longer to get done. The contemporaneous performance evaluation prepared by the respondent, however, indicated that the complainant's productivity was satisfactory and that she had actually improved at finishing her work in a timely fashion. In light of the fact that the complainant's sleep apnea had been causing her to doze off periodically for some time prior to her termination, the respondent should have been well aware of any adverse effects her handicap had on her ability to adequately perform the essential functions of the job and should have been prepared to offer evidence of these adverse effects, if they existed. Similarly, the respondent should have been prepared to offer proof that to permit the complainant to continue working would necessitate the payment of overtime, if indeed this was the case. In the absence of such evidence, the commission does not find that the complainant's handicap adversely affected her ability to adequately perform the essential functions of her job or that it otherwise had an adverse economic effect upon the employer's operations.

An employer can also establish that a particular accommodation is unreasonable by demonstrating that the accommodation would be unduly disruptive to its business operations. While the commission can envision circumstances in which permitting an employe to fall asleep on the job would be disruptive to the orderly conduct of business, here the respondent has neither alleged nor established that the complainant's dozing had any such adverse effects. Indeed, because the complainant worked alone in the respondent's cash office where her sleeping could not be viewed by customers or by her co-workers, the commission sees no reason to believe that it had a disruptive effect on the respondent's business or a negative impact on employe morale. Under these circumstances, and in light of the fact that the complainant was actively undergoing medical treatment for her handicap so that such an accommodation would, in all likelihood, have only been required on a short term basis, the commission concludes that it would have been reasonable for the respondent to permit the complainant to simply maintain the status quo and that the respondent could have done so without incurring undue hardship.

Finally, the commission addresses itself to the circuit court's observation that the use of the word "refusing" in the context of the analysis of whether an employer has refused to provide a reasonable accommodation suggests that the employer is responding to something which is being communicated to it, in the form of an offer or a suggestion. (Decision, at 14.) To wit, the circuit court points out that Black's Law Dictionary defines the word "refuse" as "to deny, decline, reject." Black's Law Dictionary 1282 (6th ed. 1990). The court's point is primarily germane to its initial concern about which party has the burden of raising the issue of accommodation, a matter which the commission has attempted to address above. The commission would note, however, that in addition to the definition cited by the court, Black's Law Dictionary contains a definition of the word "refusal," which states, in relevant part, that a "refusal" is:

"Also, the declination of a request or demand, or the omission to comply with some requirement of law, as the result of a positive intention to disobey." Black's Law Dictionary 1152 (5th ed. 1979)(emphasis added).

As illustrated by the above-cited definition, a "refusal" does not necessarily require that there first be a request or suggestion. Rather, the word "refuse" in section 111.34(1)(b) of the statutes means to decline to do something that is either requested or required by law. Betlach-Odegaard v. UW-Madison (Personnel Commission, December 7, 1990). Here, the Act required the respondent to provide a reasonable accommodation for the complainant's handicap, so as to enable her to preserve her employment status, but the respondent declined to do so. Because the respondent was aware that the complainant required an accommodation for her handicap and failed to provide the needed accommodation, and where the respondent has made no showing that it would have been unreasonable to accommodate the complainant, the commission concludes that the respondent violated the Act by refusing to reasonably accommodate the complainant's handicap.

Remedies -- The respondent has argued that the complainant failed to mitigate her damages because she obtained employment shortly after her termination from the respondent and voluntarily quit that position two weeks later. However, not all voluntary quits of subsequent jobs constitute a lack of reasonable diligence in mitigating a wage loss, and the burden is on the employer to prove that the complainant did not have any justifiable reason for quitting. Davis v. Braun-Hobar Corp. (LIRC, April 18, 1990). In the instant case, the evidence presented at the hearing established that the complainant's new job entailed compensation and working conditions which were not remotely comparable to the complainant's work for the respondent. (4 ) Under the circumstances, the commission sees no reason to believe that the complainant lacked a justifiable reason for quitting the telemarketing job, and the mere fact that the complainant accepted and quit that job has no adverse effect on her eligibility for back pay.

The respondent also argues that the complainant should not be deemed eligible for back pay for the period of time in which she received Social Security disability benefits. Specifically, the respondent contends that the complainant's receipt of Social Security benefits is relevant to the question of whether she made a reasonable good faith effort to mitigate her damages and that the complainant should not be deemed eligible for back pay for the period of time in which she received the Social Security benefits because, in order to receive those benefits, she had to establish that she was disabled. The commission is not persuaded by this argument. First, the fact that the complainant was receiving Social Security disability benefits does not render her ineligible for back pay as a matter of law. While the complainant's disability may have been sufficiently severe to entitle her to Social Security benefits, the respondent introduced no evidence to indicate that it prevented her from continuing her employment with the respondent or from attempting other employment. See Spulak v. K Mart Corp., 894 F.2d 150, 51 FEP Cases 1652 (10th Cir. 1990). The record establishes neither that the complainant was completely unable to work nor that no jobs existed which were within the complainant's capacity to perform, and the fact that the complainant was offered and accepted employment at another retail store while she was receiving Social Security disability benefits suggests otherwise. Second, mitigation requires not success in finding alternate employment, but only a reasonable exertion to mitigate damages. Whatley v. Skaggs Co., 707 F.2d 1129, 31 FEP Cases 1202 (10th Cir. 1983). Even if the commission were to find that the complainant was severely limited in her ability to work or to find work, this would not constitute proof that she failed to make a good faith effort to mitigate her damages, as the respondent suggests.

Finally, the commission has considered the complainant's argument that she should receive punitive damages because the respondent originally denied that sleep apnea was a handicap then later conceded that it was. The commission rejects this argument as being without merit or legal basis.

NOTE: The commission did not consult with the administrative law judge regarding witness credibility or demeanor. The commission's reversal is not based on a differing credibility assessment, but upon reaching a different legal conclusion when applying the law to essentially the same set of facts as that found by the administrative law judge.

PAMELA I. ANDERSON, CHAIRMAN, (Dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. After the court remand, upon further reflection, I believe that the employer offered the complainant opportunities for reasonable accommodation but the complainant did not want to change her duties or take a leave of absence. The majority finds that because the employer was not willing to suspend its rules regarding sleeping until the complainant had a chance to try a nasal CPAP, it discriminated against her by refusing to accommodate her handicap. The employer never refused to accommodate the employe.

I reject the majority position that the employer must know what the handicap is called before it can accommodate the handicap. The employer can perceive that the employe has a handicap without placing a name on the handicap. Here the employer suggested that the employe visit a doctor to check out the situation. I believe that the employer attempted to accommodate the employe on at least two occasions. The first accommodation came before the employe had been diagnosed with sleep apnea, but the second was after the employer knew that the complainant had sleep apnea.

The complainant was not able to perform the essential functions of the job at the time she was discharged. The accommodation that the majority suggests does not allow the complainant to perform the essential functions of the job, but delays the decision to discharge the complainant. A leave of absence could have resulted in the same resolution of the problem but the complainant did not want a leave of absence. The employer is not required to select the particular form of accommodation the complainant requests if another would resolve the problem. The majority is suggesting that the employer must exhaust all possible accommodations, even one that is not foreseen, if it is not undue hardship on the employer.

The accommodation that the majority requires, one of "clemency and forbearance" while she is undergoing treatment, does not allow the complainant to perform the essential functions of the job. It is not like a case where a person has a 20 pound lifting limit and once or twice a shift the employe has assistance in lifting an object that weighs more than 20 pounds. The employer did offer a leave of absence but the complainant was not interested. Even if the employer had followed the majority's advice, the complainant would not have been able to perform the essential functions of the job until her treatment changed and was successful.

For these reasons, I would dismiss the case and find no discrimination.

Pamela I. Anderson, Chairman

cc:
CHRISTE L. MCKITTRICK
JOHN M. LOOMIS

Appealed to Circuit Court. Affirmed March 18, 1997. Appealed to Court of Appeals; aff'd sub nom. Target Stores v. LIRC and Mary Crivello, 217 Wis. 2d 1; 576 N.W.2d 545 (Ct. App. 1998)

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Footnotes:

(1)( Back ) Note, also, that the Wisconsin Personnel Commission has specifically found sleep apnea to be a handicapping condition. Tews v. PSC (Personnel Commission, June 29, 1990).

(2)( Back ) The concept of "reasonable accommodation" is an expansive one, and no particular type of accommodation should be precluded from consideration provided that it is reasonable and would not work a hardship on the employer. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Wis. Ct. App. 1988).

(3)( Back ) The record also indicates that at the issuance of the Phase II warning the respondent suggested the complainant might want to consider a different schedule, a transfer to a different position, or a leave of absence. However, the complainant had not yet been diagnosed as having sleep apnea and the respondent was unaware that she had a handicap which required accommodation, nor did it have any reason to believe that any of the proffered solutions would be likely to resolve her sleeping problem. Although a leave of absence might have been a viable means of accommodating the complainant's handicap once the respondent learned that she had sleep apnea and that a treatment was available which she was willing to pursue, it never reiterated its offer of a leave of absence. See McElrath v. Kemp, 714 F. Supp. 23, 49 FEP Cases 909 (D.D.C. 1989), aff'd. 741 F. Supp. 245, 52 FEP Cases 457 (D.D.C. 1989).

(4)( Back ) The job in question was with a telemarketing firm called the Wis-National Management Company. The complainant's work for that employer involved calling people at their homes in order to solicit donations for a charitable organization and was performed out of the complainant's home. The complainant explained that the best time of day to make the calls was in the evening or during the daytime on weekends. However, because her children were home at these times, the complainant found it very difficult to make the phone calls. Further, the complainant was paid solely on a commission basis based upon the number of contributions that she successfully elicited and was not entitled to benefits such as health insurance or vacation pay. During her two weeks of employment for the Wis-National Management Company, she earned less than $100.00.