Wis.LIRC ER Decision: Janocik, Ronald - November 21, 1994 - Disability discrimination - accommodation

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

RONALD JANOCIK, Complainant

HEISER CHEVROLET, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9350310, EEOC Case No. 26G930670

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on February 18, 1994. Complainant filed a timely petition for review by the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

FINDINGS OF FACT

1. The respondent, Heiser Chevrolet, is one of five Heiser dealerships which sell and service automobiles. Don Meyer is the general service director for all five dealerships and Ken Marquardt is the service manager for Heiser Chevrolet.

2. The complainant, Ronald Janocik, has diabetes which has resulted in severe kidney damage. The complainant worked for the respondent as a service advisor until November of 1990, at which point his kidneys became inoperable and he terminated his employment. He received a kidney transplant on July 24, 1992.

3. On September 15, 1992, the respondent rehired the complainant as a service advisor. The complainant was one of three service advisors responsible for selling service agreements called "maintenance menus" at Heiser Chevrolet. The complainant reported to Ken Marquardt, the service manager.

4. When the complainant was rehired he told the respondent that he had just had a kidney transplant. He explained that there was a chance his body would reject the new organ and that, if this occurred, it was likely to happen within the first six months.

5. At all material times, the respondent perceived the complainant as having a physical impairment which made achievement unusually difficult for him and which limited his capacity to work.

6. The respondent was quite satisfied with the complainant's work performance. During the month of October the complainant sold 14 maintenance menus. During the month of November the complainant missed approximately four days of work due to illness associated with his kidney transplant. Nonetheless, he sold 15 maintenance menus in November, accounting for a third of the total sales that month.

7. During the first week of December the complainant became extremely ill due to complications associated with his kidney transplant and was hospitalized. He was released from the hospital on December 23, 1992. Shortly thereafter the complainant stopped at the respondent's facility and advised the respondent that he thought he would be able to return to work on January 1, 1993.

8. On December 29, 1992, the complainant became ill again and had to return to the hospital for further surgery. The following day he contacted a co-worker and told him about the surgery. The co-worker, in turn, notified the respondent that the complainant was hospitalized again.

9. On December 30, 1992, Don Meyer, the respondent's general service manager, decided to terminate the complainant's employment because he believed the complainant's absences were having an adverse effect on the respondent's business and because he did not know when the complainant was going to return to work. Meyer understood that all of the complainant's absences were related to his handicap.

10. Meyer did not attempt to find out when the complainant would be able to return to work and did not consider the possibility of providing the complainant with a continued leave of absence. He assumed that the complainant would not be returning to work in the foreseeable future and that the complainant's handicap prevented him from being able to work on a reliable and continual basis.

11. On December 31, 1992, Ken Marquardt, the respondent's service manager, went to the hospital and presented the complainant with his termination papers.

12. On January 6, 1993, the complainant was released from the hospital. He was physically able to return to work on January 15, 1993.

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 Wisconsin Fair Employment Act.

3. There is probable cause to believe that the respondent violated the Act by refusing to reasonably accommodate the complainant's handicap.

ORDER

This matter is remanded to the Equal Rights Division for conciliation pursuant to section 111.39(4)(b), Stats.

Dated and mailed November 21, 1994
164

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

MEMORANDUM OPINION

The complainant's burden of proof in a handicap discrimination case is to show that he or she is handicapped within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act") and that an adverse employment action was taken based upon that handicap. Here, the respondent acknowledges that it perceived the complainant's kidney transplant as a handicapping condition and it is undisputed that the complainant was discharged based upon his failure to maintain regular attendance, which occurred as a direct result of illness associated with his kidney transplant. Under the circumstances, the complainant has established that he was discriminated against based upon his handicap.

The Act prohibits an employer from discriminating against an employe based upon 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. Here, the respondent established that the complainant's handicap caused him to be absent from work during the entire month of December. It is self- evident that most employes cannot perform their jobs successfully without meeting some threshold of both attendance and regularity. Walders v. Garrett, 765 F. Supp. 303, 56 FEP Cases 265, 270 (D.C. VA 1991); Matzo v. Postmaster General, 685 F. Supp. 260, 46 FEP Cases 869, 871 (D.D.C. 1987). The commission believes that the respondent satisfactorily demonstrated that the complainant's handicap was reasonably related to the job-related responsibilities of his employment since, at least in the short term, it prevented him from performing any work. However, for the reasons set forth below, the commission concludes that the respondent failed in its burden of establishing that it could not have provided the complainant with a reasonable accommodation for his handicap.

The accommodation which the complainant required in this instance was a continuation of his leave of absence. (1 ) 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 See McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Wis. Ct. App. 1988). Thus, while there is no requirement that an employer hold a job open indefinitely for an absent employe, there is also no per se rule that a leave of absence need not be considered as a potential accommodation. The question of whether a leave of absence is a reasonable accommodation will depend upon the specific facts in each individual case. For instance, a reasonable accommodation does not include keeping a job open for an employe who has been unable to work for an extended period of time and for whom there is no foreseeable return to work date. Passer v. DOC (Wis. Personnel Comm., September 18, 1992). However, a medical leave of absence might be considered a reasonable accommodation where there is some reason to believe that the leave of absence will assist the employe in achieving recovery and will ultimately result in the employe's ability to return to work. (2 ) In this case, the complainant was hospitalized in order to undergo surgery which, if successful, may have restored to him a measure of health which would allow him to continue working. The respondent did not establish any reason to believe that the complainant's physical difficulties were permanent or that he would not be able to return to work in the foreseeable future. Under the circumstances, it would not have been unreasonable for the respondent to accommodate the complainant's disability by allowing him to continue his leave of absence.

An accommodation which might otherwise be considered reasonable will not be required if it poses a hardship on the employer's business. However, the respondent has the burden of demonstrating that it cannot accommodate the employe's handicap without such hardship. Dushek & Watkins v. LIRC (Radloff), Brown Co. Cir. Ct., May 15, 1989. Again, the question of whether a particular accommodation works a hardship on a specific employer is a factual determination that must be addressed on a case-by- case basis. McMullen, supra, at 277. Here, the respondent contended that to allow the complainant to take a prolonged leave of absence would pose a hardship, since going without a service advisor adversely affected its sales and its ability to provide customer service. In support of this assertion the respondent presented sales figures which indicate that it had fewer maintenance menu sales during the complainant's absence in the month of December than it had during previous months. However, although the commission agrees that the respondent is likely to do more business if fully-staffed, this fact alone does not prove that accommodating the complainant's handicap would have posed a hardship on the respondent. The respondent discharged the complainant without attempting to ascertain if or when he would be able to return to work, and it is clear that alternatives short of discharge were not considered. Yet it is entirely possible that the respondent could have absorbed the complainant's absence or provided temporary coverage for the complainant's position without hardship, particularly if it had known that the complainant would be able to return to work in only two weeks time. For instance, an employer can often fill a position on a short-term basis by hiring a temporary employe or by giving overtime hours to one or more of its permanent staff. The record contains nothing to indicate whether or not such solutions would have been feasible for the respondent, let alone whether they would have posed a hardship on its business. Further, although the respondent indicated that its service manager, Ken Marquardt, filled in for the complainant at some point during the month of December, it did not explain what if any problems were associated with that arrangement and there is no basis for concluding that Mr. Marquardt could not have filled in for the complainant during the first few weeks of January.

While the law does not require an employer to consider and reject every conceivable means of accommodating an employe's handicap, an employer cannot avoid liability under the Act merely by explaining that being short-staffed adversely affects its business, a proposition which generally goes without saying. The Act is to be liberally construed in order to achieve the broad goal of fostering to the fullest extent practicable the employment of all properly qualified individuals, without regard to handicap. See Section 111.31(3), Stats. Although it may not have been reasonable for the respondent to permit the complainant to take a leave of absence in this instance, this was a matter for the respondent to prove. In the absence of any such proof, the commission concludes that there is probable cause to believe that a violation of the Act occurred.

James R. Meier, Commissioner, dissenting:

I concur with the majority that the employer had a duty to reasonably accommodate the employe's handicap, but I disagree with the decision of the majority that there is probable cause that the employer violated the act by refusing to reasonably accommodate the complainant's handicap.

The record discloses that Heiser rehired Janocik knowing of his physical condition and provided him such leave as he needed up through the end of December 1992. That included three continuous weeks in December during which Janocik was unable to perform his duties because he was receiving inpatient care in a hospital.

The administrative law judge made a finding that "Mr. Janocik did not propose any accommodation to the absences caused by his handicap" an irrelevant, I think, proposition asserted by Heiser. The administrative law judge next found that "Heiser did not refuse to reasonably accommodate Mr. Janocik's handicap" thereby causing the majority to conclude, I believe, that the ALJ thought that since Janocik did not propose an accommodation that Heiser did not have to accommodate the handicap.

The majority notes the above-referenced finding, rejects its relevance and then goes on to find a failure to accommodate because on December 30 "Heiser did not attempt to find out when the complainant would be able to return to work and did not consider the possibility of providing the complainant with a continued leave of absence." The majority then goes on to find that the complainant was released from the hospital on January 6, 1993 and was able to return to work on January 15, 1993. The majority concludes, therefore, that there is probable cause to believe that the respondent violated the act by refusing to accommodate the complainant's handicap on December 30, 1992. I believe the evidence indicates that on December 31, 1992, no one knew when Mr. Janocik would be released from the hospital much less when he could return to work. These situations should be looked at in a contemporaneous manner, not a retrospective manner, with 20/20 hindsight. Looking at the practicalities and what Heiser knew on December 30, I would find that Heiser did reasonably accommodate Mr. Janocik's handicap.

What is a reasonable accommodation is normally fact intensive and the commission has not been given much guidance by the legislature. But here, everyone agrees what the necessary accommodation is--a medical leave of absence. The only question is how much is reasonable. I believe that the legislature has given us direction as to what amount of medical leave for a serious health condition is reasonable.

The legislature created chapter 103.10, Wis. Stats., the Family and Medical Leave Act, in 1987. That law provides that an employer of at least 50 permanent employes must grant an employe who has been employed by the employer for more than 52 consecutive weeks and who has worked for the employer at least 1000 hours during the preceding 52 weeks, up to two weeks of medical leave in a 12-month period for a disabling physical illness which requires inpatient care in a hospital.

There are a variety of reasons I believe we should adopt this two-week period as reasonable and find that Heiser provided reasonable accommodation. First, chapter 103.10, Wis. Stats., was adopted after chapter 111.34, Wis. Stats., and newer legislative acts should be given more weight. Second, chapter 103.10(4), providing for medical leave, is specific, and chapter 111.34 is general, and the more specific act of the legislature should be given effect. Finally, chapter 103.10(2) Scope (b) reads "This section does not limit or diminish an employee's rights or benefits under chapter 102." This language leads me to believe that the legislature anticipated that this chapter may limit rights under other chapters.

It is inconceivable to me that the legislature would speak clearly and explicitly in chapter 103 yet expect that employers are to be subject to ex post facto and ad hoc administrative decision making under chapter 111 for what is the same required behavior.

For the foregoing reasons, I would find Findings of Facts 1 through 9 and 11, as found by the majority, as well as Conclusions of Law numbers 1 and 2. I would then conclude that the employer reasonably accommodated the employe's handicap by granting the leave of absence in the month of December, 1992, and that there is no probable cause to believe that the employe violated the act as alleged.

James R. Meier, Commissioner

cc:
Jerome A. Konkel
Daniel J. LaFave

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Footnotes:

(1)( Back ) The ALJ concluded that the complainant had not specifically requested an accommodation and that, therefore, the respondent never "refused" to provide an accommodation. However, the law contains no requirement that an employe specifically request an accommodation and, in this instance, there can be no doubt that the respondent was aware of the type of accommodation the complainant required.

(2)( Back ) Although in McMullen the court indicated that precedent set by other jurisdictions should not be considered when construing section 111.34(1)(b) of the Act, it is nonetheless instructive to note that there are other instances in which courts have found that an employer must consider a leave of absence as a reasonable accommodation. See Kimbro v. Atlantic Richfield Co., 57 FEP Cases 363 (9th Cir. 1989) (Medical leave of absence was reasonable accommodation for an employe suffering from severe migraine headaches where it was clearly plausible that a leave of absence would have provided the employe with an opportunity to endure the migraine and then return to work unimpaired for the foreseeable future); McElrath v. Kemp, 714 F. Supp. 23, 49 FEP Cases 908 (D.D.C. 1989), aff'd. 741 F. Supp. 245, 52 FEP Cases 457 (D.D.C. 1989) (Medical leave of absence was reasonable accommodation for an employe who was a chronic alcoholic where the employe demonstrated that there was a treatment available which she was willing to pursue.)