Wis.LIRC ER Decision: Diedrich, Lynette - October 22, 1999 - Disability discrimination - reasonable accommodation, training on job to which transferred as accommodation; Race discrimination; Procedure - late brief

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

LYNETTE ELLEN DIEDRICH, Complainant

A E GOETZE - MANITOWOC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199703735, EEOC Case No. 26G972068

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.

DECISION

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

Dated and mailed October 22, 1999
diedrly . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Lynette Diedrich, began employment with the respondent on June 2, 1997. At that time her physician had her on medium work restrictions, including frequent lifting up to a fifty pound maximum and carrying of objects up to twenty-five pounds. She was to also avoid repetitive use of the right hand.

Diedrich, who was on a ninety-day probationary period, was assigned to work on the splitter machine where she was trained by Lynn Dewane. A splitter machine operator's duties included placing rings of different thickness on a machine to be split and then lifting them to a rack. Diedrich's supervisor was Jerry Shedal. By the third day of work Diedrich was having difficulty lifting some heavier rings to the rack. Dewane noticed this and Diedrich informed Dewane that she had carpal tunnel problems. Dewane, in turn, informed Shedal.

Shedal consulted his supervisor and on June 10, 1997, Diedrich was assigned to the gap automat job. Shedal assigned Diedrich to this job because it was a lighter job. In terms of difficulty, Shedal characterized this job as one of the simpler jobs.

Performing the gap automat job included running the O-mark machine. Diedrich was first trained on the O-mark by Judy Meneau and satisfactorily ran the O-mark machine. However, the respondent did not run the O-mark machine regularly. Meneau began training Diedrich on the gap automat machine on Wednesday, June 18, 1997, following Diedrich's leave due to her mother-in-law's funeral. Meneau apparently trained Diedrich for three or four days.

Meneau had difficulty getting Diedrich to understand the gap automat machine job. The problems included Diedrich's inability to retain information taught in previous steps of setup and an inability to comprehend the gauge. Meneau suggested that Diedrich take notes as a means of helping her remember, however, Meneau was still never able to progress in the training with Diedrich. Meneau, who had never trained anyone on the gap automat before, was not really sure what else she could do to train Diedrich so she asked Shedal to appoint someone else to train Diedrich.

Shedal then assigned Dewane as Diedrich's trainer. Dewane, who had the responsibility of training Diedrich for an additional three or four days, reported back to Shedal the same problems that Meneau had encountered, Diedrich's inability to remember information given and the inability to set the machine up without being shown again.

After having received reports from both Meneau and Dewane about the difficulty they had training Diedrich, Shedal consulted with his supervisor and decided to terminate Diedrich's employment. Shedal testified that the decision was made to terminate Diedrich's employment "(b)ecause it didn't seem like she was remembering what she was taught."

Diedrich filed a complaint and an amended complaint with the Equal Rights Division in which she alleged that she was discriminated against on the basis of disability and race. (1 ) An initial determination was issued finding probable cause to believe that the respondent had violated the Wisconsin Fair Employment Law by refusing to reasonably accommodate her disability, by discriminating against her on the basis of disability and race with respect to her terms and conditions of employment and by terminating her employment on the basis of her disability and race. The ALJ concluded after a hearing on the merits of Diedrich's claims that the respondent had not discriminated against Diedrich as alleged, and ordered the matter dismissed.

In a disability discrimination case arising under the Wisconsin Fair Employment Act (WFEA), the complainant has the initial burden of proving that she has a disability within the meaning of the Act, and that the prohibited discriminatory action complained of was on the basis of such disability. Racine Unified School Dist. (RUSD) v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991); American Motors Corp. v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984); Boynton Cab Co. v. ILHR Dept., 96 Wis. 2d 396, 291 N.W.2d 850 (1980). The WFEA's prohibition against disability discrimination is not absolute, however. RUSD, 164 Wis. 2d at 594. "An employer may `discriminate' on the basis of (disability) if `the (disability) is reasonably related to the (employee's/prospective employee's) ability to adequately undertake the job-related responsibilities of that (employee's/prospective employee's) employment..' Section 111.34(2), Stats." Id. However, � 111.34(1)(b), Stats., makes it an act of employment discrimination to refuse to reasonably accommodate an employe's (or prospective employe's) disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's business.

Diedrich argues on appeal that the respondent discriminated against her by transferring her from the splitter machine because of her carpal tunnel problems and that the respondent failed to meet its burden of showing that it reasonably accommodated her disability. Diedrich argues that an employer does not reasonably accommodate a disability by transferring a disabled person to a different machine because of disability, providing a mere 25 percent of standard training, and then terminating the disabled employe because she was unable to operate the new machine.

The record fails to support Diedrich's claims of discrimination.

Assuming for purposes of argument that Diedrich has a disability, (2 ) the respondent's transfer of Diedrich from the splitter job was reasonably related to Diedrich's ability to adequately perform the job duties on the splitter machine because she experienced difficulty lifting the heavier rings to the rack. On about her third day of working on the splitter machine, Diedrich lost strength in her wrists and they began to shake as she was lifting some heavier rings to the rack. Dewane observed this and assisted Diedrich lift the rings, after which Diedrich told Dewane that she had carpal tunnel syndrome. Dewane suggested that Shedal be advised of the difficulty Diedrich was having, and Diedrich agreed. Clearly Diedrich's carpal tunnel problems were reasonably related to her ability to adequately perform the heavier lifting associated with the splitter job.

However, Diedrich asserts that the average employe received three weeks of training while she received three days of training, and therefore the respondent did not reasonably accommodate her disability. However, it is the employe's disability that � 111.34(1)(b), Stats., requires an employer to reasonably accommodate. The record shows that the respondent's transfer of Diedrich from the splitter job to the gap automat job was a reasonable accommodation of Diedrich's carpal tunnel problems. The gap automat job was a lighter job that allowed her to avoid the heavier lifting required by the splitter job. This transfer accommodated her physician-imposed work restrictions. Indeed, Diedrich concedes that the gap automat machine work fit within her work restrictions. (3 )

Diedrich's argument about the amount of training that she received on the gap automat job and her ultimate discharge presents an issue as to whether or not she was discriminated against on the basis of disability and race with respect to her terms and conditions of employment and the termination of her employment. On these issues it was Diedrich's burden to show by a preponderance of the evidence that the respondent discriminated against her because of her carpal tunnel problems and/or race.

Diedrich argues that the average employe received three weeks of training on the gap automat job and that many employes who were unable to operate various machines received multiple transfers. Diedrich has failed to show that she was treated differently in her terms and conditions of employment or termination on the basis of her carpal tunnel problems or race, however. The record shows that the respondent had no simpler job than the gap automat job. In fact, Shedal testified that he knew of no other position that he thought Diedrich could perform because there was no other simpler job. Moreover, the record shows that employes who failed to catch on during training were not always transferred to another job or given another chance, and that, while it may not have been a frequent occurrence, the respondent did not always wait until the end of an employe's probationary period to terminate the employment relationship when it was clear that the person was just not mechanically inclined enough to catch on to machine work.

Meneau testified that Diedrich was not able to catch on to how to operate the gap automat job. Meneau testified that Diedrich was not able to retain information given her, that Diedrich could not comprehend how the gauge on the machine worked, that "It didn't make sense to her," and that she (Meneau) was never able to progress in the training with Diedrich and "wasn't getting anywhere" with Diedrich. Further, Meneau testified that she believed that Diedrich was just not mechanically inclined because she would forget very basic things, like which way to turn bolts in order to loosen or tighten them. Shedal was informed by Meneau that she was showing Diedrich the same thing over and over. Shedal then assigned Dewane to work with Diedrich, who did so for an additional three or four days. Dewane similarly reported to Shedal that Diedrich was having the same difficulties on the job over and over, that Diedrich had difficulty with setup, and that Diedrich never seemed to catch on to the job.

Diedrich has failed to establish that the respondent's concerns about her performance were a mere pretext for unlawful discrimination on the basis of disability or race.

Diedrich herself concedes that the respondent had transferred her to work so that she had work to perform that was within her work restrictions. Further, Diedrich admits that both Meneau and Dewane tried to explain and help her understand how the machine worked, that neither Meneau nor Dewane were hostile towards her, that neither Shedal nor any other supervisor had shown any hostility towards her, and that she had no reason to believe that Shedal or any other supervisor had wanted her to fail in her job. There is simply no evidence that the respondent discriminated against Diedrich in her terms and conditions of employment and termination on the basis of her carpal tunnel problems.

Finally, Diedrich's claims of race discrimination also fail. Diedrich argues that the respondent retained an Asian employe in a chrome plating job despite his alleged incompetence. However, as noted by the ALJ:

"In addition to there being no evidence identifying specifically who the (alleged) Asian employee was, the evidence indicates that the individual worked for the Respondent at a different job in a different plant than the Complainant did. Also, the evidence indicates that the (alleged) Asian employee had a different supervisor than the Complainant and there is no evidence that any persons who made the decisions related to the Complainant's employment were involved in making employment decisions regarding the Asian employee."

(ALJ decision, p. 7.)(Emphasis in bold text added)

Moreover, as indicated above, the gap automat job was one of the simplest jobs at the respondent and a determination was made that Diedrich was not mechanically inclined enough to catch on to machine work. Diedrich has made no showing that the alleged Asian employe, who worked in the more complicated chrome plating job, had exhibited the same lack of mechanical skills as she had.

Accordingly, the commission affirms the ALJ's dismissal of Diedrich's complaints of disability and race discrimination.

NOTE: The commission acknowledges Diedrich's motion to strike the respondent's brief on the grounds that this brief was due July 1, 1999, but she had not received it until July 9, 1999, and had not been aware of any extension having been requested or granted in a timely fashion. However, the commission denies this motion since Diedrich was granted an additional week in which to file a reply brief, and Diedrich has not otherwise shown that she was unfairly prejudiced by the late filing of the respondent's brief.

cc:
Steven R. Olson
Cari L. Westerhof

Appealed to Circuit Court. Affirmed March 13, 2001.

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) Diedrich's complaints filed with the division indicate that she is part white and part Native-American.

(2)( Back ) The respondent contends that Diedrich is not a disabled individual under the Fair Employment Act, arguing that her condition does not substantially limit any of her life's normal functions or any major life activity, and likewise did not limit her capacity to work on the particular job in question.

(3)( Back ) While a situation may arise where an employer's transfer of an employe with a disability is simply a sham and therefore does not constitute a reasonable accommodation, that situation is not presented here. Diedrich was assigned two different trainers by the respondent to help her learn to perform the gap automat job. Further, Diedrich concedes that both of these individuals assigned to train her tried to explain and help her understand the gap automat job.