BESSIE GARTNER, Complainant

HILLDALE, INC., Respondent A

CHARLES GIOVETTI, Respondent B

An Administrative Law Judge issued a decision in the above-captioned matter on December 12, 1991. Complainant filed a timely petition for Commission review, and both parties have filed briefs.

Based on its review of the record in this matter, and having considered the arguments of the parties, the Commission now makes the following:

1. Respondent Hilldale, Inc. is a corporation which manages the property of the Hilldale shopping center in Madison. Respondent Charles S. Giovetti is the manager of Hilldale, Inc. Hilldale, Inc. and Giovetti as manager are involved in leasing of rental units, administration of leases, collection of rent, and general maintenance and upkeep.

2. Complainant Bonnie J. Gartner was hired by Hilldale, Inc. in May 1980 as office manager. In that position she was responsible for bookkeeping, managing the office records and accounts receivables, correspondence, and customer complaints. Her supervisor was Giovetti.

3. Gartner's position was full-time when she was hired and she continued to work full-time thereafter.

4. In November 1987 Gartner was involved in a non-work-related automobile accident in which she was injured.

5. In December 1988 Gartner advised Hilldale, Inc. that her physician recommended that she work only half-time due to illness connected with her automobile accident. Gartner worked only half-time until sometime in February 1989. During that time she obtained and provided to the employer an indication from her physician that she had a history of pain in the buttocks and the backs of her thighs of approximately three months duration.

6. Gartner worked full-time again in March and April 1989. Then in May 1989 she reduced her hours to six per day, because of the physical problems which she had brought to the employer's attention earlier.

7. Gartner worked six hours per day from May 1989 until December 1989. During that time, she used her accumulated sick leave and vacation to cover the difference between her six hours per day and her full-time status.

8. In December 1989, Gartner advised Hilldale, Inc. that on her physician's recommendation she needed to reduce her hours to no more than half-time.

9. Hilldale, Inc. allowed Gartner to begin working half-time in December 1989 because of her request based on her physician's recommendation. To cover the other four hours a day it hired another person to work half-time to perform some of Gartner's duties.

10. On February 20, 1990 Gartner provided Hilldale, Inc. with an indication from her physician that she was subject to recurrent pain which limited her ability to work more than four hours a day and that she should continue to work at no more than four hours a day for the indefinite future.

11. Hilldale, Inc. terminated Gartner's employment effective March 30, 1990 because of her inability to work full-time.

12. Gartner was not denied any benefits because of her sex.

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

CONCLUSIONS OF LAW

1. Respondent Hilldale, Inc. is an employer within the meaning of  that term as it is used in the Wisconsin Fair Employment Act. Respondent Charles Giovetti is an individual employed by Hilldale, Inc. within the meaning of sec. 111.39(4)(c), Stats. and is an agent of Hilldale, Inc.

2. Complainant Bonnie Gartner is handicapped within the meaning of the Wisconsin Fair Employment Act.

3. There is probable cause to believe that Respondent Hilldale, Inc. violated the Wisconsin Fair Employment Act by refusing to reasonably accommodate Bonnie Gartner's handicap. 

4. There is no probable cause to believe that Respondent Hilldale, Inc. discriminated against Bonnie Gartner because of sex in regard to benefits.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission now makes the following:

Insofar as the complaint in this matter can be construed as alleging discrimination because of sex, it is dismissed. Insofar as the complaint in this matter alleges discrimination because of handicap, it is remanded to the Equal Rights Division for conciliation pursuant to sec. 111.39(4)(b), Stats.

Dated and mailed May 12, 1992    [see note]

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The Administrative Law Judge concluded that McMullen v. LIRC and Owens-Illinois. Inc., 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), was inapplicable here because it involved a transfer to a position in another department while this case involves the division of a full-time position into two half-time positions. The Commission does not believe that the factual distinctions between this case and McMullen are legally significant.

McMullen teaches that the duty of accommodation should be broadly interpreted to resolve the problem it was designed to address, and should be liberally construed to effectuate the policy and purpose of .the Fair Employment Act of encouraging and fostering to the fullest extent practicable the employment of all properly qualified individuals regardless of handicap. 148 Wis. 2d at 275. Most significant, it teaches that it is inappropriate to conclude as a matter of law that any particular kind of action is not required as an accommodation. 148 Wis. 2d at 276. Under McMullen, the commission is not permitted to determine that the duty of reasonable accommodation does not require an employer to create a part-time job for a full-time employe whose handicap rendered her unable to work full-time. Because this cannot be determined as a general matter, it follows that there must be cases in which it would in fact be required as an accommodation. Whether or not it is so required in any particular case depends solely on whether the facts show that it is "reasonable" and that it does not pose a "hardship" for the employer.

The Commission has found probable cause here because the record fails to establish that in these particular circumstances the accommodation sought would be unreasonable or would pose a hardship. It is possible that there could be communications problems and other inefficiencies caused by having the secretarial duties performed sequentially by two different persons during each working day, and it is possible that the total payroll costs associated with two part-time employes might be higher than those associated with one full-time employe. Depending on the particular facts, these things could be found to pose a hardship on the employer and to make the accommodation unreasonable. However, the employer offered no evidence whatsoever concerning the payroll cost differences (if any) between one full-time employe and two part-time employes, and it offered no persuasive evidence of any problems or inefficiencies caused by the use of two part-time employes. Its speculation that such problems might occur is inadequate. Certainly, since the employer had several months' experience with the arrangement, it could be expected to offer direct evidence of any problems that did arise, by way of testimony from employes who could be expected to have personal knowledge of  such problems (including the other part-time employe). In the
absence of such evidence, probable cause must be found.

Note: The decision is reproduced here as it was amended by an order of the commission dated May 15, 1992.  That amendment added Finding of Fact No. 12 and Conclusion of Law No. 4,  deleted the original Order (which had stated, "This matter is remanded to the Equal Rights Division for conciliation pursuant to sec. 111.39(4)(b), Stats.") and substituted the Order which appears above.  The commission's amended order of May 15, 1992 also added the following:

NOTE: The Commission is amending its decision to clear up an uncertain situation involving the scope of the complaint. Although it directly alleged only handicap discrimination, in its narrative the complaint contained a passing reference to females allegedly being denied benefits given to males. According to the investigator's log, the Complainant then told the investigator over the phone on May 7, 1990 that she "wanted to allege sex discrimination in benefits." Rather than advising Complainant that the complaint could be so amended, which is what Wis. Admin. Code Ch. 88.06(2) anticipates will occur in such situations, the investigator simply began treating sex discrimination as an issue without any amendment being filed. After the investigator found no probable cause, the Complainant's appeals and her arguments in her briefs to the ALJ and the Commission have addressed themselves exclusively to the issue of handicap discrimination. The commission judges the issue of sex discrimination to have been abandoned if it can even be treated as having been present at all, but amends its decision to address it now as a matter of clarification of the record. There is certainly no evidence in the record adequate to find probable cause that there was sex discrimination.

cc: 
Steven J. Schooler
Mark S. Zimmer

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