ROBIN MACARA, Complainant

CONSUMER CO-OP OF WALWORTH COUNTY, Respondent

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 August 24, 1990. Both parties filed petitions for review of the Administrative Law Judge's decision and both parties submitted written arguments to the Commission.

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

The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. Substitute "Kirn" for "Kern" in Finding of Fact paragraph number 1, and substitute "Pellman" for "Pelman", "Kayser" for "Kaiser", and "Heindrich" for "Heindrick", throughout the decision.

2. At the end of the first sentence of Finding of Fact paragraph number 2, add "but were hired in other departments and were not transferred to positions at the gas station until after Ms. Macara was hired."

3. In Finding of Fact paragraph number 10, substitute "laminectomy" for "lamenectomy", and delete the second to last sentence of that paragraph.

4. In Finding of Fact paragraph number 16, delete "Prior to January 2, 1989" and substitute therefor "On December 27, 1988"; delete "Accommodating such a handicap would have imposed a hardship on Consumer Co-op", and substitute therefor: "There were no vacant positions of employment in the Co-op to which Macara could have been transferred as an alternative to keeping her in her old job."

5. In Conclusions of Law paragraph number 3, add "on December 6, 1988" at the end thereof.

6. Delete Conclusions of Law paragraph number 4 and substitute therefor the following:

"That clear and convincing evidence in the record establishes that Robin Macara would have been permanently physically unable to return to her employment as a service station attendant upon the expiration of her leave of absence in January 1989, and that the duty of reasonable accommodation of handicap would not have required Consumer Co-op to reemploy her in that capacity or some other capacity at that time."

As modified, the decision of the Administrative Law Judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed February 14, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

This case presents two distinct questions, one pertaining to liability and one to remedy.

The liability question is whether the Respondent engaged in unlawful discrimination when it discharged Complainant on December 6, 1988. Respondent argues that it did not discriminate because it did not decide to discharge Complainant because of her handicap. It also argues that even if it is concluded that Complainant's handicap played a part in the decision to discharge her, there was still no unlawful discrimination because Complainant would still have been discharged for legitimate reasons even if there had been no consideration of her handicap.

The Commission, which consulted with the Administrative Law Judge concerning his impressions as to the credibility of witnesses, was persuaded as he was that Complainant's handicap was a significant motivating factor in Respondent's decision to discharge her. Given the express indications to precisely this effect in the written words of the decisionmaker, Kirn, this could hardly be any clearer. Respondent's argument that Complainant would have been terminated anyway ultimately rests on the same theories it advanced unsuccessfully in attempting to show that its motives were pure. The claim that economic pressures compelled the termination of Complainant is simply not plausible in view of the fact that the three employes retained in the Service Station Department all continued to work (and to be paid for) substantial amounts of overtime every week. Respondent could have achieved personnel cost savings equivalent or greater to those achieved by discharging Complainant, by eliminating this expensive overtime. The Commission considered, but found totally incredible, the efforts by Kirn to establish that scheduling considerations would somehow not have permitted this. He had difficulty explaining this theory, and when pressed on it he became unwilling to be specific. (TR 161) He appears never to even have considered it. The Commission is satisfied that the Complainant's handicap was a significant motivating factor in her discharge, and that the Respondent has not persuasively demonstrated that if it had not been for that motivation she would still have been terminated.

The evidence discussed below which indicates that Complainant would not have been able to perform her job when she completed her leave of absence, cannot be considered to shield Respondent from a finding of unlawful discrimination on some theory that it establishes an affirmative defense of inability to do the work under sec. 111.34(2)(a), Stats. Those restrictions had not been established at the time Respondent discharged Complainant. Respondent failed entirely to conduct any kind of particularized inquiry into the question of the effect of Complainant's handicap on her ability to work, at the time it made the decision to discharge her. Because of this, the requirements for establishing such an affirmative defense would not have been satisfied, even if the Respondent had advanced such a theory.

The remedy question is whether the scope of Complainant's remedy is limited by the fact that after her discharge she was assigned physical restrictions which would have affected her ability to be reemployed by Respondent. (1)   Complainant argues that the restrictions were not permanent and were in fact lifted by the physician on February 7, 1989, and that the duty of accommodation contained in sec. 111.34(1)(b), Stats., would have required that Complainant's employment be continued notwithstanding those restrictions. Thus, she reasons, the restrictions would not have affected her employment and should not affect her remedy.

The Commission agrees with the Administrative Law Judge that the restrictions were permanent. The physician's letter so stated. The Commission discounts the significance of the other, ambiguous, reference in the physician's letter to the restrictions being "temporary." Complainant conceded that those restrictions were in force later in that year, required her to abandon a benchwork job in which she had begun employment at that time, and continued in effect even to the time of hearing. In view of these facts, the Commission also finds unreliable the unsubstantiated claim of Complainant that the restrictions were "lifted" by her physician on February 7, 1989.  (2)   Although the Complainant asserted at hearing that she could have performed her service station attendant's job even with those restrictions, the Commission agrees with the Administrative Law Judge that it is not credible that Complainant could have engaged in activities such as checking oil, washing windshields, and other functions of her jobs, on vehicles including trucks, without engaging in the bending and reaching which her restrictions precluded. Significantly, Complainant did not even argue in her brief that she would have been able to perform her work with these restrictions. Rather, she invoked the duty of accommodation, suggesting in reliance on McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), that the Respondent would have been obliged to transfer her to other work upon her return from leave in January 1989. However, there were no open positions to which Complainant could have been transferred, because no employes other than Complainant had been terminated. It would have been unreasonable and would have posed a hardship upon Respondent to either create a new and unnecessary position for Complainant or to discharge another employe to make room for her.

Complainant was unlawfully discharged because of her handicap. She is therefore entitled to a finding of discrimination, an order directing Respondent to cease such discrimination and to correct its records concerning the discharge if requested by Complainant, an order providing her a remedy for any benefits of employment she lost during the period when she would otherwise have been allowed to continue on the leave of absence which had already been granted to her, and an order for payment of reasonable attorney's fees. However, because the evidence shows that after her discharge she became physically unable to return to her employment, her right to reinstatement and further back pay must be accordingly limited.

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(1)( Back ) These restrictions are reflected by Resp. Exh. 2, a letter from Complainant's physician. The ALJ apparently had reservations about considering this document, although it cannot be determined from his comments whether he received it or not. The Commission believes that Resp. Exh. 2 (and Resp. Exh. 5, as to which there is similar ambiguity) should have been received since no objection was made when they were offered. (TR 193) Therefore these documents have been treated as part of the record.

(2)( Back ) The Commission has not considered the document which Complainant submitted to the Administrative Law Judge after he issued a non-final decision pending determination of attorney's fees. That document was not part of the record made at hearing. Complainant advanced no acceptable basis for considering it as newly-discovered evidence.

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