PATRICK M WALDERA, Complainant

COOPERATIVE EDUCATION SERVICE AGENCY #11, Respondent

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 makes the following:

1. Cooperative Educational Service Agency #11 (hereinafter "respondent"), is an agency created pursuant to Chapter 166 of the Wisconsin Statutes, which provides various services to 39 school districts in northwestern Wisconsin. There are 12 such agencies serving the school districts of Wisconsin. The respondent employs people in many and varied capacities, such as teachers and administrators, to provide services. At all times material hereto the respondent's administrator was Robert Rykal.

2. In May, 1998, the respondent had an opening for a teacher certified to teach visually impaired students and/or certified to teach orientation and mobility to visually impaired students throughout the respondent's service area. One of the requirements of the position was that the teacher travel between school districts in the service area. The cost of services provided by the respondent, in this case teaching the visually impaired, was shared by the school districts actually receiving the services.

3. Patrick Waldera (hereinafter "complainant"), has had a visual impairment since birth. He is nearly blind in his left eye and has a visual acuity of 20/200 in his right eye. The complainant is unable to drive an automobile.

4. The complainant is certified in Wisconsin to teach visually impaired students and is certified in Canada to teach orientation and mobility. The complainant had been an elementary school teacher for almost 20 years and has taught visually impaired students in both the United States and Canada for the last 6 years. The complainant was, in all respects, qualified for the position advertised by the respondent.

5. Beginning in May, 1998, the complainant had several contacts with the respondent, both written and by telephone, regarding the position. The respondent was aware from the beginning of the complainant's visual impairment. The respondent was interested in hiring the complainant because of his experience and recommendations, but was concerned about the cost of providing transportation for the complainant to the school districts utilizing his services.

6. At all times material hereto the respondent operated on an annual budget of approximately 19 million dollars, half of which was paid by the school districts receiving services and the other half from various grant sources.

7. The school districts in the respondent's service area were not required to purchase services from the respondent. They were free to contract from other sources or pool their resources and provide their own special services. Any increase in cost of services was passed on to the districts utilizing those services. As of the time the complainant applied for the job, the respondent was charging the districts $111.12 an hour for services for the visually impaired. The respondent had received complaints about the high cost of these services and had talked to teachers and administrators about ways in which to keep costs down.

8. Through mid-August of 1998, the respondent explored several external funding sources for the complainant's transportation and informed him that if such funding could be secured it was interested in interviewing the complainant and quite possibly hiring him. The complainant suggested that the respondent hire a driver or aide at minimum wage and that he would share the cost.

9. Mr. Rykal (1), the respondent's director, concluded that to hire a driver for the complainant would cost approximately $20,000 a year, including wages and fringe benefits.

10. On July 29, 1998, Mr. Rykal sent the complainant a letter stating as follows:

"Due to your visual handicap, you have indicated that in order for you to perform the responsibilities of the vacant position, our Agency would have to seek a driver to take you from district to district with the expectation that we would, consequently the schools districts, have to burden the cost [sic].

"As I indicated to you, we feel that this would constitute an unreasonable accommodation and as such, we no longer consider you as an active candidate for the visually impaired and orientation and mobility position."

11. The respondent offered the position to an individual who was not visually impaired and who was able to drive between job assignments.

12. The cost of providing a driver for the complainant would have posed a hardship for the respondent.

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

1. The respondent did not discriminate against the complainant in violation of the Wisconsin Fair Employment Act (hereinafter "WFEA").

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

1. The complaint is hereby dismissed with prejudice.

Dated and mailed October 31, 2002
waldepa . rrr : 164 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The arguments raised in the respondent's petition for commission review are grounded almost entirely in federal law. Specifically, the respondent maintains that the complainant is not a "qualified individual with a disability" because he cannot perform an essential function of the job and, further, that an employer need not accommodate a disability by eliminating or reallocating an essential job function. Putting aside the question of whether driving between assignments could be considered an "essential function" of a teaching job, the fact remains that the WFEA differs from the Americans with Disabilities Act in many significant respects, including the fact that the WFEA does not contemplate an "essential functions" analysis. Fields v. Cardinal TG Co. (LIRC, Feb. 16, 2001). To the contrary, under the WFEA there is no limit to the type of accommodation an employer may be expected to provide, so long as the accommodation requested is a reasonable one that can be provided without hardship to the employer's business. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 2d 830 (Ct. App. 1988); Gartner v. Hilldale, Inc. (LIRC, May 12, 1992). What is reasonable will depend on the specific facts in each individual case. McMullen, at 276.

The commission is unable to conclude that the accommodation sought in this case was an unreasonable one. The accommodation in question would have removed the only barrier to the complainant's ability to perform the job and would have effectively enabled him to adequately undertake the job-related responsibilities of the teaching position. However, even assuming the accommodation could be considered reasonable, the commission believes the respondent has demonstrated that to provide such an accommodation would pose a hardship for it. The accommodation requested by the complainant would have required the respondent to hire an additional full-time employee beyond that for which it had advertised or budgeted, and to retain this individual on a permanent basis exclusively for the purpose of assisting the complainant. The accommodation would have cost the respondent approximately $20,000 a year, a cost which would have ultimately been passed on to the school districts served by the respondent. The client school districts, which had the freedom to contract from other sources or pool their resources to provide their own special services, were already complaining of the high costs of services for the visually impaired, and had talked to the respondent about ways in which to keep expenses down. Given these circumstances, the commission believes that the respondent was not required to provide the requested accommodation because to do so would pose a hardship for its business. The complaint is, therefore, dismissed.

NOTE: The commission did not confer with the administrative law judge about witness credibility and demeanor. The commission disagrees with the administrative law judge's conclusion that the respondent failed to demonstrate the cost of the accommodation. However, this disagreement is not based upon an assessment of witness credibility. Mr. Rykal, who had been the respondent's director for approximately four years at the time the complainant sought the job in question, and who had been a school superintendent for 12 years and a principal for 13, was qualified to testify that the respondent's employees are union employees and that any driver for the respondent would be paid union wages and benefits. Moreover, the respondent presented a copy of its union contract, showing the pay scale for van drivers during the time period at issue, which established that the base salary for a van driver working 1425 hours a year would be at least $13,409. While the contract did not include information regarding the cost of health insurance and other benefits, Mr. Rykal was competent to testify that the entire package would cost approximately $20,000, and the commission does not believe the respondent needed to present any additional evidence on this point.

cc: 
Attorney Michael D. O'Neill
Attorney Victoria L. Seltun

Appealed to Circuit Court. Appeal dismissed March 10, 2003,  for failure to timely serve LIRC.

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(1)( Back ) The complaint originally listed Mr. Rykal as a separate respondent. However at the hearing the parties stipulated that Mr. Rykal was not a proper party, and the complaint against him was dismissed.

uploaded 2002/11/08