SUSAN C CATLIN, Complainant

CRYSTAL LAKE CHEESE FACTORY, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

1. The respondent, Crystal Lake Cheese Factory (hereinafter "respondent"), operates a factory at which it processes raw milk into cheese and packages it for distribution to other companies, as well as under its own label. The respondent also runs a small retail shop. During the relevant time period it employed between 45 and 48 people.

2. The complainant, Susan Catlin (hereinafter "complainant"), began working for the respondent in August of 1995 as a cheese cutter. Shortly thereafter she was promoted to the position of department head/lead worker in the wholesale department.

3. The wholesale department was the part of the respondent's operation responsible for getting cheese ready to be shipped out to grocery stores. There were four workers in the department: the department head, the cutter, the cryovacer, and the labeler. During the complainant's employment her sister was the cheese cutter and her mother the cryovacer.

4. As department head, the complainant was responsible for preparing the paperwork, which included gathering up all the grocery store orders and making up a sheet showing the cutter what types and sizes of cheese various grocery stores wanted. The cutter would then bring in the different kinds of cheese from the cooler, cut them to the appropriate sizes, and set them on a table. While this was occurring the complainant would get boxes from the storeroom, put them together, and affix labels to them. Once the cheese was cut, it was placed in individual plastic bags, then put into a machine called a cryovac, which sealed the bags and removed the air from them. The cheese was then loaded into a basket and put into a pot of hot water, in order to shrink it and make the bag tight. These tasks were performed by the cryovacer. Thereafter the cheese was labeled, then weighed, priced, boxed, and put on a pallet. Once on the pallet the cheese was put in the cooler to await shipment to the grocery store. The complainant was responsible for weighing, pricing, boxing, and placing the cheese on pallets. In addition, workers in the wholesale department were responsible for transporting cheese to the respondent's store about once a week using a hand cart and, on occasion, for loading cheese into a semi truck. This latter task was generally a seasonal responsibility performed around Christmas time.

5. Everyone in the wholesale department was cross-trained and could help out on any job as needed. The complainant had no formal written job description. She received a single performance evaluation during her employment, and was given primarily above-average ratings. The respondent regarded her as an excellent employee.

6. In November of 1996 the complainant was involved in an automobile accident, which left her confined to a wheelchair. The complainant was hospitalized for about three months, then underwent further rehabilitation at home.

7. In December of 1996, while the complainant was still in the hospital, she spoke on the telephone with the employer's owner, Tony Curella, who told her her job was there no matter what. The complainant attended an employee picnic in July of 1997, at which point she still regarded herself as an employee of the respondent.

8. The complainant believed she was ready to go back to work in September of 1997. She called the respondent and asked to speak with Mr. Curella, but was told he was busy. The complainant left a message for Mr. Curella to call her back, but he failed to do so. The complainant waited a few weeks, then called Mr. Curella again. Mr. Curella deliberately instructed the receptionist to tell the complainant he was too busy to talk to her. The complainant was told Mr. Curella would call her back, but again he failed to do so.

9. Shortly thereafter Mr. Curella received a telephone call from the Rice Lake Vocational Rehabilitation Center to discuss the complainant's return to work. Mr. Curella was shocked to receive the call and immediately contacted his insurance company to ask how he should proceed. The insurance company representative suggested that Mr. Curella have an analysis done of the cheese factory to see if the complainant could be accommodated. The insurance company also sent the respondent information from the Job Accommodation Network (hereinafter "JAN").

10. The respondent arranged for an ergonomic job analysis to be conducted by David Johnson, a case management consultant for a company called Genex Services. The respondent did not provide Mr. Johnson with any information about the complainant other than that she uses a wheelchair. Mr. Johnson observed the wholesale department and on September 30, 1997, prepared a report in which he concluded that the complainant could not be accommodated.

11. Mr. Johnson's report identified some specific jobs which the complainant would be unable to perform: reaching cheese at high levels in the coolers, pushing and pulling pallets of cheese, operating a "bag back sealer" at a high work table, and moving product from the store room to the store. He then made the following conclusions:

"Based on the review of the work area as well as the discussion with Mr. Curella regarding the duties of the Supervisor (1) and their ability to have to fill in on all positions within the wholesale pack department, that it would not be a position which they could make reasonable accommodations for a person in a wheelchair. The major factors in limiting a person in a wheelchair would be the ability to do all of the positions which is an essential function of the supervisory position. This is not to say a person in a wheelchair could not do a particular job within the department but would not be able to do all of the positions as is required of a Supervisor. This is a small department with a total of 4 people. Each person is required to do a particular task and the Supervisor needs to know all those tasks and able to fill in if someone does not come in. They do not have the ability to have people on standby due to the size of the company. According to Mr. Curella the size of the company is under 50 people at this time. In reviewing the position, I saw no permanent modifications that could be provided in the job to accommodate a person in a wheelchair for the supervisory position.

"Therefore, the essential function which would most hamper a person in a wheelchair would be that the Supervisor is required to know all aspects of the job and is able to fill in when people are unable to. It would also be difficult for the wheelchair person to pull stock and inventory due to the weights and heights of their storage containers and cooling unit."

12. After reviewing Mr. Johnson's report, the respondent concluded that the complainant could not be accommodated. The respondent based this conclusion exclusively on Mr. Johnson's report, without talking to the complainant, requesting information from her doctor, or contacting the JAN.

13. The respondent mailed a copy of Mr. Johnson's job analysis to the Rice Lake Vocational Rehabilitation Center, but never contacted the complainant to discuss the fact that it was not offering her her job back. On August 5, 1998, the complainant received notice that she had to remove her money from her 401(k) retirement plan and realized that the respondent considered her employment to be terminated.

14. As of the date she sought reinstatement the complainant was physically able to perform most of the jobs in the wholesale department, including training people, making boxes, making labels, baking cheese, labeling cheese (using a "reacher" to get at the labels), weighing it, pricing it, boxing it, putting it on a pallet, and doing inventory and other paper work. She was also able to clean up and wash equipment.

15. The complainant could not perform some of the heaviest physical tasks, including lifting 40-pound blocks of cheese, loading and unloading the hand cart and semi truck, and reaching boxes stacked high in the storeroom or cheese stored at high levels in the cooler. She was also unable to cut cheese or place it into the pot of hot water. However, these functions belonged primarily to the cheese cutter and the cryovacer, and were not tasks which the complainant performed very frequently. In addition, at least two of the other three employees in the department expressed a willingness to perform a disproportionate share of the physical tasks which the complainant was unable to perform.

16. The respondent's refusal to modify the complainant's job duties to exempt her from performing those heavy physical tasks which were beyond her capabilities constituted the denial of a reasonable accommodation which the respondent could have provided without hardship.

17. In order to perform her job duties the complainant required some physical modifications to the work place. The main entrance to the plant contained a 3" lip on the threshold which would have had to be altered so that she could enter the plant in her wheelchair. In the alternative, a ramp could have been provided. In addition, the respondent has a sanitizer area which employees walk through on their way to the main plant, and some modification would have been needed to enable the complainant to pass through the sanitizing bath with her wheelchair. The complainant did not need the respondent to lower work tables for her, as she was comfortable working at a 33" high table.

18. As of the time the complainant requested reinstatement she used a catheter bag and did not require the respondent to provide a wheelchair accessible bathroom. However, as of the date of the hearing the complainant's needs had changed and an accessible bathroom would be required.

19. The respondent's refusal to make the physical modifications to the workplace required by the complainant constituted the denial of a reasonable accommodation which the respondent could have provided without hardship.

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

1. That the complainant is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.

2. That the respondent discriminated against the complainant based on her disability, within the meaning of the Wisconsin Fair Employment Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

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

2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to her former position, provided such a position is currently available and that the complainant is able to perform it with reasonable accommodations based upon her current needs. (2) 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 employee from the date she sought reinstatement 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 or on which it is shown that reinstatement was no longer feasible. (3) 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 shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Insurance 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 and costs associated with this matter.

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. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. §§ 111.395, 103.005(11) and (12).

Dated and mailed July 20, 2001
catlisu . rrr : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

Procedural Issue

Prior to beginning its investigation of this case, the Equal Rights Division (hereinafter "Division") attempted to dismiss the matter based upon a final action by the United States Equal Employment Opportunity Commission (hereinafter "EEOC"), from which the complainant had not filed an appeal. Although the Division subsequently acknowledged that it did so erroneously and rescinded its dismissal, the respondent now seeks to resolve this entire matter on that basis. The respondent's efforts are unavailing. The Division was correct in rescinding its dismissal of the case, as such dismissal was not authorized by rule or by statute. To the contrary, the Division is required to investigate all complaints of discrimination unless one or more of the four criteria specifically enumerated in the Division's rules are not met. See Wis. Admin. Code § § DWD 218.05 and 218.06. A dismissal by the EEOC is not among those criteria and is not a circumstance that warrants dismissal of a complaint before an investigation has been conducted. Consequently, the complainant's failure to take action pursuant to the EEOC's dismissal of her complaint had no bearing on her right to proceedings before the Division.

The respondent asserts an alternative basis for dismissing the complainant's complaint: her failure to file a timely appeal of the Division's erroneous dismissal. Again, this argument fails. To begin with, a party's failure to appeal a dismissal that the Division was not authorized to issue cannot reasonably serve as a basis to deny her her right to proceed with her case. Further, even if the Division had been authorized to dismiss the matter, its decision was defective in that it did not include any notice of appeal rights or of the time allowed for filing an appeal, as required under Wis. Stat. § 227.48(2). Thus, a dismissal of the complaint on the basis sought by the respondent would have resulted in a denial of due process to the complainant. For these reasons, the commission finds that dismissal of this case on procedural grounds would be improper.

Merits

The complainant's burden in a disability discrimination case under the Wisconsin Fair Employment Act (hereinafter "Act") is to show that she is disabled within the meaning of the Act and that there was an adverse employment action based upon that disability. The complainant's evidence that she lost her job because she is confined to a wheelchair clearly satisfies that burden. The burden then shifts to the respondent to demonstrate both that the disability was reasonably related to the complainant's ability to adequately perform the job-related responsibilities of her employment and that accommodation of her disability would pose a hardship on its business. See Wis. Stat. § 111.34. Here, there is no question but that the complainant's disability, which resulted in her permanent use of a wheelchair, was related to her ability to perform the job-related responsibilities of her employment. The question presented in this case is whether there was a reasonable accommodation which the respondent could have provided without hardship.

The complainant contends that she could have continued working for the respondent if it had been willing to excuse her from the heavy physical tasks which she was unable to perform. The complainant maintains that she could perform most of her job responsibilities, and her mother and sister, the respondent's cheese cutter and cryovacer, appeared at the hearing and testified that they had no objection to stepping in and helping with those tasks she was unable to perform, even if this meant performing a disproportionate amount of the heavy work.

The commission has previously found that it is reasonable to require an employer to restructure the physical demands of the job in order to accommodate a disabled employee, provided this can be achieved without hardship to the employer. Fields v. Cardinal TG Co. (LIRC, February 6, 2001). Here, the respondent has argued that relieving the complainant from having to perform some of the tasks in the wholesale department would pose a hardship for it because it needs everyone in the department to be able to perform every duty in order to fill in when workers are absent or on vacation or when someone otherwise needs assistance. However, while the employer might find it easiest to employ only those workers who can perform every job function, the Act requires employers to make accommodations for disabled workers so long as they can reasonably do so without hardship to the business. In this case, the employer has failed to demonstrate the existence of such a hardship.

The complainant was able to perform most of her usual job duties, with the exception of reaching boxes on high shelves and loading the hand cart and semi truck. However, the evidence indicates that loading the hand cart and semi truck were tasks that were not done very often and, further, that there was a person available to help with the boxes. Indeed, the complainant testified that, even before becoming disabled, she had received assistance in retrieving the boxes. Under the circumstances, the commission is unable to conclude that her inability to perform these few functions interfered with her overall ability to carry out the duties of the lead worker position.

The commission recognizes that were a number of additional small tasks in the wholesale department which the complainant's use of a wheelchair rendered her unable to perform. These, however, were primarily job responsibilities belonging to the cutter or cryovacer, with which the complainant helped out only occasionally. The respondent failed to present any evidence to show what percentage of the complainant's time was spent on those tasks, and offered nothing to contradict the complainant's testimony that it was minimal. While the respondent also contended that the complainant needed to be available to fill in when other workers in the department were absent, it failed to present any evidence to show how often this occurred, and the commission is unable to conclude that this exigency was sufficiently compelling so as to justify denying the complainant an opportunity for reemployment. It appears that there was a great deal of flexibility in the assignment of tasks in the wholesale department. Thus, even if one worker was absent, there is no reason to believe that the other two workers could not cover the heaviest physical tasks, while the complainant focused on the remaining tasks. Given these factors, and considering that at least two of the other three workers in the wholesale department indicated a willingness to cover more of the physically demanding tasks and to perform a disproportionate share of the heavy labor, the commission sees no reason to conclude that exempting the complainant from those physical tasks which she was unable to perform would have had an adverse effect on the respondent's operation or otherwise posed a hardship for it.

It appears that some of the respondent's unwillingness to accommodate the complainant in this case may stem from its having underestimated her abilities to perform the job and having made an incorrect assumption that she was not capable of handling any physical tasks. The respondent's operations manager testified that he did not believe it would be practical or possible to remove one person entirely from physical work and that to do so would have required additional help. However, the operations manager indicated that he would consider taking the grocery store cheese out of the cooler, wrapping it, bringing it to the cryovac, labeling it, weighing it and packaging it--all jobs which the complainant was capable of doing--to be physical work if done with any frequency. The respondent failed to establish that it would have had to hire additional help if it had permitted the complainant to perform only those tasks of which she was capable, some of which were clearly considered physical work. While it is certainly possible that the respondent would not be able to accommodate an individual who could perform only paperwork and non-physical tasks, it erred in assuming that the complainant was such an individual.

The respondent also relied on incorrect assumptions with respect to the complainant's need for modifications to the physical workplace. For example, the respondent assumed it would need to build a wheelchair accessible bathroom, which it stated would cost it $47,000. However, the complainant testified that, as of the time she attempted to request reinstatement, she did not require a bathroom because she used a bag which was emptied at home. Consequently, the cost of installing an accessible bathroom was not a basis upon which the complainant could lawfully be denied reinstatement. Moreover, even assuming a wheelchair accessible bathroom would have been necessary -- and the evidence indicates that as of the date of the hearing the complainant's needs had changed and she would require the use of a bathroom (4) -- the respondent did not demonstrate that to build one would pose a hardship for it. The operations manager testified that he had a contractor come and received an estimate of $47,000 to build a wheelchair accessible bathroom. However, there is no copy of this estimate in the record, nor any other nonhearsay evidence to establish that it would really be necessary to spend $47,000 to build an accessible restroom facility or that it would not have been feasible to alter an existing bathroom so that it would be accessible to the complainant.

The evidence suggests that there are two minor physical alterations which the complainant would have required: a modification to the sanitizer bath through which employees walk on their way into the plant and a modification to the 3" threshold to the plant. The respondent neither asserted nor established that either of these modifications would pose any difficulty for it. While there was also some dispute about the complainant's ability to work at the 33" high work tables in use in the wholesale department, the complainant testified that she took her own measurement and tried it at home, finding it to be perfect at that height. The complainant also testified that in her current position she works at different levels without any difficulty. Even assuming that the complainant's understanding of her own capabilities is incorrect and that she would not be able to work at a 33" table, the respondent has nonetheless failed to demonstrate that lowering the tables would pose a hardship for it. While the respondent asserted that to lower table levels would have an adverse impact on other employees, since the height of the table is set so the average employee can work comfortably, no competent evidence was presented in support of this assertion, and the commission sees no basis to conclude that other employees would have difficulty working at slightly lower tables. Further, although the respondent stated that employees work on all five tables, rotating around them, it failed to explain why a single table could not be lowered to accommodate the complainant.

NOTE: The commission did not confer with the administrative law judge regarding witness credibility and demeanor. The commission's reversal is not based upon any differing assessment of witness credibility.

cc: 
Attorney Monica Murphy
Attorney Sean M. Scullen

Appealed to Circuit Court. Affirmed February 7, 2002. Appealed to Court of Appeals. Affirmed October 8, 2002 . Petition for Review granted.  Affirmed July 11, 2003 sub nom.  Crystal Lake Cheese Factory v. LIRC and Catlin,   2003 WI 106, 664 N.W.2d 651 .

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(1)( Back ) At the hearing the respondent insisted that the complainant's job title was either head of the wholesale department or lead worker, and that she was not a supervisor.

(2)( Back ) The evidence in the record indicates that, at some point prior to October of 1999, the wholesale department was eliminated. However, the record is silent with respect to when this occurred, where the workers in the wholesale department went after their department was eliminated, or whether there would have continued to be work available for the complainant had she been permitted to return. Consequently, the commission is unable to find with certainty that reinstatement is appropriate.

(3)( Back ) For the same reasons discussed in footnote 2, above, the commission is unable to find whether or when it is appropriate to cut off the complainant's back pay. If and when the commission's decision becomes final, and if the parties have difficulty resolving any issues that may arise with respect to the appropriateness of reinstatement and back pay, further proceedings may be ordered.

(4)( Back ) The complainant's accommodation needs which arose subsequent to her initial request for reinstatement do not have any bearing on the respondent's liability in the case. However, if the respondent had demonstrated that providing an accessible bathroom would have posed a hardship for it, this would have had an impact upon the remedy ordered.

uploaded 2001/07/23