DOUGLAS SCOTT GEEN, Complainant

STOUGHTON TRAILERS INC, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on September 29, 1999, finding that discrimination had occurred and ordering a remedy.

A timely petition for commission review was filed. In a decision issued on August 31, 2000, the commission made findings of fact and conclusions of law, including conclusions of law that the respondent had not refused to reasonably accommodate the complainant's disability and that no discrimination had occurred. On the basis of those findings and conclusions it ordered that the complaint be dismissed.

A timely petition for judicial review was filed. In a bench decision issued on August 9, 2001 (and subsequent order of August 30, 2001), the Dane County Circuit Court affirmed the commission's conclusions of law numbers 1 through 4, but reversed the commission's conclusions of law numbers 5 and 6, which had been to the effect that the respondent had not refused to reasonably accommodate the complainant's disability and that no discrimination had occurred. On that basis, the court set aside the commission's order that the complaint be dismissed, and it remanded the matter to the commission with directions that it "implement the ALJ[`s] order."

The order of the Circuit Court was appealed to the Court of Appeals. The Court of Appeals issued its decision on October 10, 2002. The Court of Appeals' decision stated that the Court had concluded, as had the Circuit Court, that the commission's order dismissing the complaint must be set aside. The dispositional order of the Court of Appeals was to the effect that the order of the Circuit Court was modified, and as modified, affirmed. The modification made by the Court of Appeals to the decision of the Circuit Court was to the remand mandate. The Court of Appeals stated that in place of the direction to implement the ALJ's order, the matter would be remanded to the commission for further proceedings consistent with the Court of Appeals' opinion. The specific directions given by the Court of Appeals in this respect were:

On remand, the commission shall consider, to the extent it is necessary to do so, either or both of the following issues: (1) whether on the present facts Stoughton terminated Geen's employment because of his disability; and (2) whether the FMLA or regulations enacted thereunder affect Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how. (1)

A petition for Supreme Court review was denied, and the matter was returned to and is now before the commission.

Based on the procedural history described above, the commission concludes that the Findings of Fact made by the commission in its August 31, 2000 decision were not set aside by the Circuit Court or the Court of Appeals. The commission therefore incorporates those findings into this decision, subject only to two modifications. (2)   The commission further concludes that conclusions of law numbers 1 through 4 made in its August 31, 2000 decision have been affirmed by the Circuit Court and the Court of Appeals, and that that disposition is now final and represents the law of the case. The commission therefore incorporates those conclusions into this decision. The commission understands its responsibility at this point to be to issue a decision, based on the findings of fact originally made by the commission in its August 31, 2000 decision and on the four conclusions of law affirmed by the Circuit Court and the Court of Appeals, which addresses the questions posed by the Court of Appeals and resolves the remaining legal issues of whether respondent failed to reasonably accommodate the complainant's disability and whether discrimination occurred.

Consistent with the foregoing, and based on its review and its reconsideration of this matter in light of the opinion of the Court of Appeals and its directions on remand, the commission now makes the following:

1. Complainant, Douglas Scott Geen ("Geen"), was employed for about eight years as an assembler by Respondent, Stoughton Trailers, Inc. ("Stoughton"), a manufacturer of over-the-road semi-trailers. He was discharged from his employment on January 31, 1997. At the time of his termination his wage rate was $9.52 per hour. He was a full-time employee, normally working Monday through Friday.

2. Stoughton has a "no fault" attendance policy which creates a point-based system under which employees are assigned "occurrences" for all absences and tardiness, unless the absence is one of the specified exceptions to the policy. Under Stoughton's policy, consecutive days of absence that do not qualify as some type of authorized leave usually result in the assessment of one "occurrence" for each day of absence, but a series of days of absence that are caused by the same condition and qualify for a medical leave will be treated as only one occurrence. An absence that is shown to be covered under the Family and Medical Leave Act ("FMLA") leave is not assessed as an "occurrence" at all. An "active" employee (i.e., not on layoff) can have one previous "occurrence" subtracted from their balance if they work sixty days without incurring an "occurrence."

3. As of December 11, 1996, Geen had 4.5 "occurrences" under Stoughton's "no fault" attendance policy. None of these "occurrences" were caused by absences due to any disability.

4. On Thursday, December 12, 1996, prior to the start of his shift, Geen called his supervisor, Dan Kortte, and told him he could not work that day, explaining that he had a bad headache, which he referred to as a migraine. Again on Friday, December 13, 1996 Geen called Kortte before his shift started and told him he still couldn't come to work because he was still not feeling well. On Monday, December 16, 1996 Geen was still suffering from headaches, and went to the Dean Urgent Care Center in Madison. He remained off work.

5. Stoughton Trailers' human resources administrator during this time was Tammy Droessler. One of the duties of Droessler's job was to scan the attendance logs and other data for names of employees who had been off work for three or more consecutive work days. If such an absence appeared to be due to illness, the company's policy was to require a release for work without restrictions from the employee's physician, unless waived by the company.

6. On December 17, 1996 Droessler sent Geen a standard letter indicating that Stoughton Trailers' records showed he had been off work since December 12. The letter told Geen that he was required to bring in a release-for-work slip when reporting for work. The letter also told him that to have the absence qualify as a medical leave he had to provide Stoughton with medical documentation from his physician stating why he was absent and how soon he could be expected to return to work, within 15 days from the date of the letter. The December 12 letter also told Geen that to have the absence qualify as FMLA leave, he had to complete an attached Department of Labor certification form and return it to the Stoughton Trailers Human Resources Department, within 15 days from the date of the letter.

7. During this absence Geen saw a physician's assistant on December 30, 1996 and Dr. Gray Erlacher on January 6, 1997. Dr. Erlacher's diagnostic impression was that Geen was suffering from migraine headaches, adjustment disorder with anxiety and depression, and a left shoulder strain. He prescribed Paxil for his depression, Trazadone to help him sleep, and Midrin to relieve his headaches.

8. Geen returned to work on January, 8, 1997. On that day Geen gave Droessler a return-to-work slip from Dr. Erlacher, a note from Dr. Erlacher indicating that he had seen Geen on December 30, 1996 and January 6, 1997 for headaches, and two prescriptions, one for Midrin and one for Trazadone. The information Geen provided did not include any statement by a physician saying that he had been unable to work on any particular day of his absence. Geen also did not return the Department of Labor certification form required to establish that his absence could qualify for FMLA leave.

9. Droessler told Geen that he needed to have his doctor complete the Department of Labor certification form required to establish that his absence could qualify for FMLA leave or else he would be assessed an "occurrence" for the period of absence. However, Geen did not thereafter do so.

10. Droessler accepted the material Geen provided as sufficient medical documentation to qualify the period from December 12, 1996 through January 7, 1997 as a medical leave. On that basis, Geen was assessed one "occurrence" under Stoughton's "no-fault" attendance policy for his absence from December 12, 1996 through January 7, 1997. Thus, as of Geen's return to work on January 8, 1997, he had an accumulated balance of 5.5 "occurrences."

11. On January 21, 1997 Geen filled out a vacation request form for January 23, 1997, and left it on Kortte's desk. He then took January 23 off. He was not ill that day, but took the day off as a vacation day. By mistake, however, Kortte did not record January 23, 1997 as a vacation day for Geen. Instead he recorded it as a day of family/medical leave. He had no basis for recording it this way.

12. On Friday, January 24, 1997 Geen called in before his shift started and reported that he could not work that day because he had a migraine headache. This was recorded in the company's attendance log. The attendance log also showed that he called in again on Monday morning, January 27, 1997 and reported that he couldn't work because of headaches and was going to the doctor the next day, and that he called in on Tuesday morning, January 28, 1997, and reported that he was seeing the doctor that day.

13. On January 28, 1997 Geen saw Dr. Enrique Luy at the Stoughton Hospital. After examining him the doctor assessed Geen's condition as: "Cephalgia, nature undetermined, psychogenic versus migraine versus vascular headache." Dr. Luy advised Geen to establish a regular doctor as his primary physician, and suggested that he might need to see a neurologist for evaluation of his headaches.

14. On January 29, 1997 Geen went to work and punched in, but his supervisor told him to punch out and go to the human resources office. Geen went to the human resources office and spoke to Droessler. He told her that he needed to go on medical leave because he had headaches and was shaky.

15. During the meeting on January 29, 1997, Droessler handed Geen another standard letter with the same information as in the letter described in paragraph 6 above, noting that Geen had been off work since Friday, January 24, 1997. She emphasized to him the need to get medical documentation in within 15 days of the date of the letter.

16. The next day, January 30, 1997, Geen was seen in the Dean Medical Center by M. A. Hansen, M.D., who examined him and assessed him as follows: "Patient has quite textbook examples of migraine headaches, which have increased in frequency and intensity since beginning a prescription of Paxil." Dr. Hansen took Geen off Paxil and prescribed Midrin for his headaches, and scheduled a follow-up exam for him in one week. He gave Geen a note that day stating that he was being evaluated for migraines.

17. On that same day (January 30, 1997), Geen gave Droessler the note which Dr. Hansen had given him. When she was handed the note, Droessler told Geen that he needed to bring in a doctor's note saying he could return to work without restrictions.

18. Geen went back to Dr. Hansen's office on January 31, 1997 and obtained a note indicating that he was released for work without restrictions. This release also stated that Geen had been unable to work on January 27 and 28, 1997. It did not indicate that he had been unable to work on January 24, 1997. On the same day that he got this note from Dr. Hansen (January 31, 1997), Geen gave it to Droessler.

19. After Geen gave her the note from Dr. Hansen on January 31, 1997, Droessler told Geen that he was being discharged because his medical documentation did not excuse him for Friday, January 24, 1997, causing him to accrue an occurrence for that date, which put him at 6.5 occurrences.

20. At some time following January 31, 1997, Stoughton incorrectly determined that Geen's absence on January 23, 1997 was a "no call/no show," rather than a vacation day (which is what Geen had requested) or a family/medical leave day (which is what Geen's supervisor, Kortte, had recorded). The basis for its conclusion that January 23, 1997 was a no call/no show absence was its failure to find any indication that Geen had called in or requested January 23 off in advance. However, on January 31, 1997, at the time she discharged Geen, Droessler did not have any belief that Geen should be assessed an occurrence for an absence on January 23, 1997. Droessler terminated Geen because his absence on January 24, 1997 had not been addressed by any medical documentation and was thus clearly an absence for which an "occurrence" should be assessed.

21. Even if the information from Dr. Hansen had indicated that Geen had been unable for medical reasons to work on January 24, 1997, and even if the information from Dr. Hansen had been considered by Stoughton to establish that all of Geen's most recent consecutive absence days (i.e., January 24, 27 and 28) had been caused by the same condition and qualified for a medical leave, that period of absence would still have resulted in Geen being assessed one "occurrence" under Stoughton's "no-fault" attendance policy - which would have brought his balance of "occurrences" to 6.5, above the point at which discharge was called for.

22. If Stoughton had treated Geen's two recent periods of absence (12/12/96 - 1/7/97, and 1/24/97 - 1/30/97), as having been only one period of absence, only one "occurrence" would have been assessed according to the terms of Stoughton's "no-fault" attendance policy. If Stoughton had treated those periods of absence as FMLA leaves, "occurrences" would not have been assessed for them according to the terms of Stoughton's "no-fault" attendance policy.

23. At the time he was discharged, Geen stated that his doctor needed additional time to evaluate him before he could bring in more medical documentation, and he was told about his options for appealing to the Attendance Review Board. Droessler told him that he had three working days from that date (January 31) to write a letter to the company's Attendance Review Board in order to try to reverse the assessment of the occurrence. She told him he could submit medical documentation to the Board.

24. On Wednesday, February 5, 1997, the Attendance Review Board received an appeal from Geen in which he stated that he had been having trouble with migraine headaches with dizziness and was on medicine for depression, had been seen by several different doctors who had not come up with a diagnosis, and was having his primary physician, Dr. Hansen, evaluating his headaches. Geen did not submit any medical documentation to the Attendance Review Board with his letter of appeal.

25. On February 7, 1997, Geen had a follow-up exam with Dr. Hansen. Dr. Hansen noted that stopping Paxil made no difference in the frequency of his headaches and that his depression was recurring. He resumed Geen's prescription for Paxil and started him on Adalat for his headaches. Geen did not submit any documentation to the Attendance Review Board about his February 7 visit with Dr. Hansen, nor did he ask Dr. Hansen at that time to complete the forms necessary to establish that his absence would qualify for FMLA leave. Geen did not submit any such information to the Attendance Review Board or anyone else at Stoughton, at any time thereafter.

26. By a memo dated February 21, 1997, the Attendance Review Board rejected Geen's appeal. The Attendance Review Board did so because by that time Stoughton had come to believe that Geen had been absent without notice or excuse on January 23, 1997, and that he would properly be assessed an occurrence for that absence which would put his "occurrence" balance at 6.5. However, even if the Attendance Review Board had viewed Geen's absence on January 23 as not warranting assessment of an "occurrence," his absence from January 24 - January 30 would have been found to warrant assessment of at least one occurrence, as Geen had not submitted anything establishing that his absence during that period, or his absence during the period from December 12, 1996 through January 7, 1997, would qualify for FMLA leave.

27. Geen's periods of absence from December 12, 1997 through January 7, 1997 and from January 24 through January 30, 1997 were both caused by his experiencing episodes of migraine headaches. During his headaches Geen became dizzy, had problems with his vision and trouble walking, and as a result was unable to perform the primary function of his job, which was to install floors in truck trailers by using a power tool called a floor drill. Geen's condition of periodically suffering from migraine headaches was an impairment of indefinite duration that limited his capacity to perform his job.

1. Complainant Douglas Scott Geen is an employee within the meaning of the Wisconsin Fair Employment Act.

2. Respondent Stoughton Trailers, Inc. is an employer within the meaning of the Wisconsin Fair Employment Act.

3. Complainant is an individual with a disability within the meaning of Wis. Stat. § 111.32 (8).

4. Complainant's disability (migraine headaches) was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment with Respondent within the meaning of Wis. Stat. § 111.34 (2)(a).

5. By the acts and conduct described above, Respondent refused to reasonably accommodate Complainant's disability within the meaning of Wis. Stat. § 111.34 (1)(a).

6. By the acts and conduct described above, Respondent discriminated against Complainant because of disability within the meaning of Wis. Stat. § § 111.322 and 111.34, in violation of Wis. Stat. § 111.321.

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

2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position he held prior to his discharge, with all seniority and benefits, including sick leave and vacation credits, to which he would have been entitled had he been employed continuously from the date of his discharge until the date of his reinstatement. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond.

3. That the respondent shall make the complainant whole for losses in pay which the complainant suffered by reason of its unlawful conduct by paying the complainant the sum he would have earned as an employee from the date of his discharge until such time as the complainant resumes employment with the respondent or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for this 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 during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation 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 to the complainant reasonable and actual attorney's fees and costs associated with this matter. The amount of such fees and costs for the proceedings through the point of the issuance of the commission's initial decision in this matter is determined to have been:

To Attorney Darcy C. Haber, $16,472 for attorneys fees up to the point of the administrative law judge's decision and $2,068.75 for attorneys fees in connection with the initial petition for commission review proceedings, for a total of $18,540.75, which should be paid by way of check made out jointly to Haber and complainant and delivered to Haber;

To Attorney Paul F. X. Schwartz, $16,685 for attorneys fees up to the point of the administrative law judge's decision and $3,387.50 for attorneys fees in connection with the initial petition for commission review proceedings, for a total of $20,072.50, which should be paid by way of check made out jointly to Schwartz and complainant and delivered to Schwartz; and

To Attorney Paul F. X. Schwartz, $2,300.19 for costs up to the point of the administrative law judge's decision and $42.87 for costs in connection with the initial petition for commission review proceedings, for a total of $2,343.06 which should be paid by way of check made out jointly to Schwartz and complainant and delivered to Schwartz.

Respondent shall also pay to the complainant reasonable and actual attorney's fees and costs in connection with proceedings following the issuance of the commission's initial decision in this matter. Determination of the specific amount of such fees and costs will abide the final determination in this matter.

5. That within 30 days of the date on which this order becomes final, either by virtue of expiration of time within which an appeal may be taken herein or by final denial of or refusal to hear any such appeal, respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. 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. Stats. § 111.395, 103.005(11) and (12).

Dated and mailed September 11, 2003
geendo2 . rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This matter is before the commission on remand from the Court of Appeals, with directions for the commission to consider and decide two issues specified by the court: whether Stoughton terminated Geen's employment "because of" his disability within the meaning of Wis. Stat. § 111.322(1), and whether (and if so, how) the federal Family and Medical Leave Act (FMLA) affects Stoughton's claim that it reasonably accommodated Geen's disability. These issues are discussed below.

Whether Stoughton terminated Geen's employment "because of" his disability -

Geen was terminated because of the application of Stoughton's "no-fault" attendance policy, under which discharge resulted if an employee accrued 6 "occurrences." Of the 6.5 "occurrences" which resulted in Geen's discharge, the last 2 were periods of absence caused by Geen's disability. This presented the question, of whether Geen was discharged "because of" disability within the meaning of Wis. Stat. § 111.322(1). (3)

As to this issue, Stoughton first renews an argument which it made unsuccessfully to the Court of Appeals. Stoughton had argued to the Court of Appeals that the commission had actually decided, in its original decision, that Stoughton's discharge of Geen was not "because of" disability. It based this argument on the wording of the commission's conclusion of law number 6, which stated, "Respondent did not discriminate against Complainant because of disability within the meaning of Wis. Stat. § 111.34 when it terminated his employment." The Court of Appeals rejected this argument, indicating that it took that conclusion of law to be "nothing more than the necessary final determination flowing from the commission's previous conclusion" that Stoughton did not refuse to reasonably accommodate Geen. 2002 WI App 269, ¶ 34, n. 8. In its briefs to the commission on remand, Stoughton now disputes with the Court of Appeals on this point, arguing "[w]ith all due respect to the Court of Appeals" that the commission has already decided the question, and urging the commission to adhere to that supposed decision.

Stoughton also argues that in any event, the conclusion that it did not discharge Geen "because of" his disability is supported by two commission decisions, Gordon v. Good Samaritan Medical Center (LIRC, 4/26/1988) and Gee v. ASAA Technology Inc. (LIRC, 1/15/92). Finally, Stoughton argues that Geen was not assessed occurrences under its attendance policy because of his disability-related absences, "but rather because he repeatedly refused to submit documents required of him by Stoughton to avoid occurrences."

For his part, Geen argues that his discharge was "because of" his disability under the "in part" (or "mixed motive") test recognized in Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994).

Stoughton's argument that the commission's initial decision in this matter already held that Geen was not discharged "because of" disability, is without merit. While the commission at that time gave an indication in its Memorandum Opinion of how it was leaning on the question, it expressly reserved decision on the issue. As the Court of Appeals noted, the commission's ultimate conclusion of law on whether Stoughton discriminated against Geen because of disability concerned a different question than whether Stoughton discharged Geen because of disability.

The commission is also unpersuaded by Stoughton's argument that Geen was not assessed occurrences because of his disability-related absences, but because he repeatedly refused to submit documents required of him by Stoughton to avoid occurrences. Geen was assessed occurrences precisely because of his absences.

The commission does not now believe that its decisions in Gordon v. Good Samaritan and Gee v. ASAA Technology require the outcome urged by Stoughton on this question.

In its 1988 Gordon decision, the commission did not itself discuss the issue, but simply expressed agreement with a discussion of the issue contained in the earlier decision of the administrative law judge in that case. That decision of the administrative law judge in Gordon, however, had rested primarily on the conclusion that the employee in that case lacked the ability to perform the work because of the employee's disability. The reasoning of the administrative law judge in that case, that it was not disability discrimination to apply minimum uniform attendance requirements to persons whose disabilities may cause them to miss work, was thus in the nature of dicta. In its 1993 Gee decision, the commission cited the Gordon decision for this proposition, but did so more or less in passing, by way of comment on an argument made by the employer. It had in fact found in that case that the employer had discharged the employee "because of" disability," and the brief reference to Gordon was thus also in the nature of dicta. Because in neither Gordon nor Gee was the question determinative of the outcome of the case, and because in neither case was the question addressed with the depth appropriate to its importance, the commission finds those cases less than persuasive.

More important, the current commission simply takes a different view of this matter than did the commission which decided Gordon and Gee a decade and more ago. A significant reason for this, is that to the extent that Gordon and Gee hold that a discharge is not "because of" disability where it is in part because of absences that are caused by a disability, those decisions are arguably inconsistent with and have thus been to some extent supplanted by the 1994 decision of the Court of Appeals in Hoell v. LIRC, supra.

In Hoell, the Court of Appeals endorsed the use of the "in part" (or "mixed motive") test in discrimination cases under the WFEA. Under the "in part" test,

If an employee is terminated solely because of an impermissible motivating factor, the employee normally should be awarded a cease and desist order, reinstatement, back pay, interest, and attorney's fees . . . If an employee is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Commission has the discretion to award some or all of the remedies ordinarily awarded. Finally, if an employee is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employee should be awarded only a cease and desist order and attorney's fees.

186 Wis.2d at 609-10. The commission is persuaded that this analysis should be applied to situations like the one in this case. Geen was discharged in part because of absences from work that were caused by his disability, and in part because of absences from work that were not caused by his disability. The discharge would not have occurred, however, if Stoughton had not counted against Geen the final absences, which were caused by his disability.

As was noted in the commission's initial decision in this case, it is possible to hypothesize a whole continuum of situations such as this, in which the combined effect of a number of absences from work lead an employer to decide to discharge an employee. The commission suggested, that at one end of the continuum there would be cases in which the role of absences caused by the disability would not be significant enough in the entire record of absences to justify a conclusion that the discharge decision was made "because of" disability, while at the other end of the continuum the opposite conclusion would be required. It also suggested, that there was no "bright-line rule" to distinguish these situations.

The commission does not understand the Court of Appeals to have disagreed with this view. The remand mandate of the Court of Appeals does not require the commission to attempt to define a bright-line rule. Rather, it simply calls upon the commission to decide, wherever that line is, which side of it this case falls on. For the reasons discussed above, the commission finds that in the particular circumstances here, Stoughton's decision to discharge Geen was "because of" Geen's disability.

Whether (and if so, how) the FMLA affects Stoughton's claim that it reasonably accommodated Geen's disability -

The other issue which the commission must decide is "whether the FMLA or regulations enacted thereunder affect Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how."

When this case was previously before the commission, it agreed with arguments made by the employer that it had offered a reasonable accommodation to Geen by providing him with an opportunity to seek to have his absences qualified as leave covered under the federal Family and Medical Leave Act (FMLA), which would have had the result under its "no fault" attendance plan of having them not count as "occurrences." The Court of Appeals, however, rejected this analysis, based on considerations relating to whether Stoughton properly complied with procedures specified under the FMLA. Specifically, the Court noted that the FMLA allows an employer to make a request that an employee seeking FMLA leave provide medical certification of the need for the leave. The rule provides that the employer must give the employee at least 15 calendar days after the employer makes the request for medical certification, and, if the employee provides inadequate certification, the employer must give the employee a "reasonable opportunity to cure" the deficiency. Courts have held that termination is not an appropriate response for an inadequate certification. The Court of Appeals found that Stoughton discharged Geen only 2 days after requesting him to provide medical certification for his second disability-related absence. The Court observed, that this "suggests that Stoughton may not have fully complied with the FMLA."

The commission cannot ignore the fact that, while the Court of Appeals has instructed it to render a decision on the issues concerning Stoughton's compliance or non-compliance with the federal FMLA, the Court has already spoken extensively on those issues in a way which clearly and expressly rejects Stoughton's arguments. Thus, the Court unambiguously rejected arguments made by Stoughton that Geen's submission of incomplete medical documentation waived any obligation on its part to allow the 15-day certification period to elapse; that its failure to allow Geen 15 days following his second disability-related absence is irrelevant because it did allow him 15 days following his first disability- related absence; that Geen was actually requesting "intermittent leave" for which it was not required to give him a second written request for medical certification; and that Geen waived the right to rely on any argument about the 15-day period by not raising it below. 2002 WI App 269 at ¶¶ 26-30.

This leaves Stoughton with little option except to argue that the Court of Appeals erred, and that is what is has done. Stoughton now argues that the Court of Appeals misconstrued the FMLA in three ways, that it read into the FMLA a requirement that does not exist, that the Court's decision on the intermittent leave issue was clear error, that it incorrectly interpreted federal regulations concerning giving employees an opportunity to cure inadequate certifications, that it misconstrued federal regulations and ignored and mischaracterized federal case law, and that it misread applicable FMLA regulations.

The commission has carefully considered Stoughton's arguments concerning the proper application of the FMLA to the situation presented here. However, it is not persuaded that it should arrive at a different conclusion than that which has already been reached by the Court of Appeals, for two reasons.

First, the commission finds the Court of Appeals' analysis of the applicable provisions of the FMLA and rules promulgated thereunder to be more persuasive than the arguments made by Stoughton.

Second, the commission agrees with Geen's argument that the situation here implicates the "law of the case" doctrine.

The law of the case doctrine is a "longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal." Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 38, 435 N.W.2d 234 (1989) (internal citation omitted). Thus, a circuit court is generally bound to apply decisions made by the court of appeals or supreme court in a particular case. See id.; see also Oladeinde v. City of Birmingham, 230 F.3d 1275, 1288 (11th Cir. 2000) (noting that in the federal system, the law of the case doctrine binds district courts and appellate courts to prior appellate decisions in the same case). The purpose of the law of the case doctrine is not complex: "The doctrine of  'law of the case'  is rooted in the concept that courts should generally follow earlier orders in the same case and should be reluctant to change decisions already made, because encouragement of change would create intolerable instability for the parties." Ridgeway v. Montana High School Ass'n, 858 F.2d 579, 587 (9th Cir. 1988) (internal citations omitted).

State v. Stuart, 2003 WI 73, 23, 664 N.W.2d 82. The law of the case doctrine has been applied in situations involving remands from the Court of Appeals to the commission, so far as questions of law are concerned. Johnson v. Industrial Commission, 14 Wis. 2d 211, 217, 109 N.W.2d 666 (1961).

Viewing the Court of Appeals' decision on the proper interpretation of the relevant FMLA provisions as conclusive here does not deprive the commission of a meaningful role in these remand proceedings. There is a distinction between the FMLA issues and the WFEA issues presented by this case. The arguments made by Stoughton raise a number of issues about the interpretation and application of the federal FMLA and regulations promulgated thereunder. As noted, the commission believes that the Court of Appeals has definitively addressed and ruled on those arguments and issues. As the commission understands it, what the Court now expects of the commission, is for it to decide the important WFEA issues presented in this case, including specifically, whether Stoughton reasonably accommodated Geen's disability within the meaning of the WFEA. Thus, the Court noted:

If an agency erroneously interprets a provision of law, we may set aside the agency action and "remand the case to the agency for further action under a correct interpretation." Wis. Stat. § 227.57(5). Alternatively, we may "modify the agency action if . . . a correct interpretation compels a particular action." Id. We reject the latter alternative for two reasons. First, it is conceivable that the commission could conclude after a full consideration of FMLA requirements that Stoughton nonetheless reasonably accommodated Geen's disability within the meaning of Wisconsin's Fair Employment Act (WFEA). Because the commission did not address the possible FMLA violation in its present decision, we conclude it should be given the opportunity to do so on remand.

These statements by the Court reinforce the commission's conviction, that the Court was not intending to invite the commission to second-guess its analysis of the FMLA issues. (4)   It believes that instead, the Court was indicating that the commission ought to apply a "correct interpretation" as contemplated by Wis. Stat. § 227.57(5) by following the Court of Appeals' lead on the FMLA issues, and then decide whether Stoughton "nonetheless" reasonably accommodated Geen's disability within the meaning of the WFEA.

Therefore, both because the commission is persuaded by the Court of Appeals' interpretation of the relevant FMLA provisions and rules, and because the commission considers that the Court's interpretation should govern in any event, the commission rejects the arguments made by Stoughton in that regard. It concludes that Stoughton did not fully comply with the FMLA in its dealings with Geen in this matter.

Stoughton's argument that it satisfied the "reasonable accommodation" requirement of the WFEA rests on its contention, that it complied with the provisions of the federal FMLA in a way which allowed Geen an opportunity to have his disability-caused absence not counted against him under its "no-fault" attendance policy. However, because of the conclusion that Stoughton did not comply with the provisions of the federal FMLA, this argument must be rejected. Therefore, the commission has concluded that Stoughton refused to reasonably accommodate Geen's disability within the meaning of Wis. Stat. § 111.34 (1)(a).

In addition, the commission believes that there is another reason why it is appropriate to conclude that that Stoughton refused to reasonably accommodate Complainant's disability within the meaning of Wis. Stat. § 111.34 (1)(a).

Stoughton's argument that it met its duty to provide "reasonable accommodation" rested on an interpretation of the WFEA, to the effect that an employer may satisfy its duty of "reasonable accommodation" by establishing that it gave an employee an opportunity to invoke the provisions of the federal FMLA and was willing to exclude absences from consideration under a "no-fault" attendance policy if the employee could establish that the absences were covered under the FMLA. Under this interpretation, if FMLA coverage for the absences is not established, the employer is free to go ahead and discharge the employee because of those absences, even when the absences have been caused by the employee's disability.

However, another possible interpretation of the provisions of the WFEA, is that even if an employer fully complies with the federal FMLA in terms of providing an employee the opportunity to establish that an absence is covered under that law, this is not necessarily sufficient to satisfy the employer's independent obligation under the WFEA to provide "reasonable accommodation."

One difficulty with an interpretation of the WFEA which holds that an employer who discharges an employee because of absences caused by a disability may satisfy their duty to "reasonably accommodate" the employee merely by allowing the employee to seek to have their absences qualified as covered under the federal FMLA, is that it ties the substantive meaning of Wisconsin's "reasonable accommodation" requirement to a federal law that may be changed (or eliminated) at any time, without any role having been played by the Wisconsin legislature. The type of problems that can be caused by creating this kind of linkage between a Wisconsin law and a federal, law, is illustrated by Wisconsin's experience in the 1970's with the issue of whether discrimination because of pregnancy was sex discrimination. Wisconsin had held that it was, see, Ray-O-Vac v. DILHR, 70 Wis. 2d 919, 236 N.W.2d 209 (1975), but when the U. S. Supreme Court held in the course of interpreting Title VII that it was not, see, General Electric v. Gilbert, 429 U.S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976), the argument was made that since Wisconsin courts had looked to Title VII to guide interpretation of the WFEA, they should similarly be guided by Gilbert and should interpret the WFEA as not covering discrimination because of pregnancy. This argument was eventually rejected, the court noting, "Wisconsin courts . . . must construe Wisconsin statutes as it is believed the Wisconsin legislature intended, regardless of how Congress may have intended comparable statutes." Goodyear Tire & Rubber v. DILHR, 87 Wis. 2d 56, 273 N.W.2d 786 (Ct. App. 1978). To the same effect, and of particular significance given the issues here, is the observation of the Court of Appeals in McMullen v. LIRC, 148 Wis. 2d 270, 275-76, 434 N.W.2d 830 (Wis. Ct. App. 1988), that

[o]ur legislature has established its own scheme for dealing with employment discrimination based on handicap and has articulated the specific policy considerations underlying that scheme. Therefore, we will construe sec. 111.34(1)(b) in accordance with our legislature's intention rather than with the intention of other jurisdictions.

For these reasons, the commission believes, it would be preferable to interpret the "reasonable accommodation" provision of the WFEA by reference to Wisconsin statutes and court decisions rather than law of other jurisdictions.

A related difficulty with an interpretation of the WFEA which links the meaning of "reasonably accommodate" to the federal FMLA, is that it makes the scope of Wisconsin's "reasonable accommodation" requirement dependent on distinctions and classifications inherent in the federal law which may have no sensible relationship to the intended scope and purpose of Wisconsin's law. If an employer is considered to have ipso facto satisfied the "reasonable accommodation" requirement of the WFEA by allowing an employee to exercise the rights available to that employee under the federal FMLA, what will be the implications for employees whose rights under the federal FMLA are, even given a correct interpretation and application thereof, limited or non-existent? The federal FMLA has limitations on its coverage which relate to the size of an employer's workforce, the length of any individual employee's service with the employer, the number of weeks of leave available, and other matters. Situations could easily arise, in which some employees could qualify for FMLA leave to apply to certain absences, while other employees would be unable to, where the distinction between their situations was one which related solely to specific provisions of the FMLA and could not be rationally justified by references to the purposes and goals underlying the WFEA and its guarantee of "reasonable accommodation."

Yet another difficulty with an interpretation equating federal FMLA compliance with satisfaction of the "reasonable accommodation" requirement under the WFEA -- and the most serious difficulty in the commission's view -- is that it appears to be inconsistent with Wisconsin decisions interpreting and applying the WFEA's "reasonable accommodation" requirement. The decision of the Court of Appeals in Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App., 1998), is particularly significant in this regard.

Target Stores was similar in many respects to this case. In Target Stores, the employee's sleep apnea was the cause of her sometimes falling asleep at work. After this occurred several times, the employee was discharged. It was not disputed that the employee was discharged for sporadically dozing off on the job, that this dozing off was a direct result of her sleep apnea, and that her termination therefore was based on her disability. The Court of Appeals upheld the commission's decision in that case, that the duty of "reasonable accommodation" required Target Stores to exercise "clemency and forbearance," in the form of not immediately discharging the employee but instead tolerating the shortcomings in the employee's performance while the problem was being medically addressed. 217 Wis.2d at 18. The Court said:

We have held that "reasonable accommodation" in § 111.34(1)(b), Stats., should be interpreted broadly. McMullen [v. LIRC, 148 Wis. 2d 270, 276, 434 N.W.2d 830 (Wis. Ct. App. 1988)]. Nothing in the statutory language indicates that a reasonable accommodation must immediately remove the difficulty caused by the hardship. . . LIRC's interpretation of "reasonable accommodation" to include forbearing from enforcing the loafing rule while Crivello is undergoing treatment is reasonable. Like a leave of absence, forbearance from enforcing the loafing rule is a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility.

Id.

In this case, Geen's migraine condition was sometimes causing him to miss work. However, as was the case in Target Stores, Geen's problem had only recently been diagnosed, and he was still at a fairly early stage of treating his disorder. As Crivello had been, Geen was still working with physicians to determine effective medications and to adjust them. It was entirely possible, that development of an appropriate treatment regimen would significantly reduce or even eliminate the problem of periodic absences due to migraine attacks.

The Court of Appeals was clear in rejecting the employer's contention that it should be allowed to discharge the employee in such a situation:

Target's argument, as we understand it, is that it is never a reasonable accommodation to temporarily "forbear," that is, temporarily refrain from enforcing a disciplinary rule, even when the employee is satisfactorily performing the essential functions of her job and is undergoing treatment to address the handicapping condition. The essence of Target's position is that an accommodation is reasonable only if it will immediately remove the difficulty in performing job-related responsibilities caused by the handicap.

Applying the great weight standard in reviewing LIRC's interpretation of the statute on this point, we conclude that its interpretation is reasonable. We have held that "reasonable accommodation" in § 111.34(1)(b), Stats., should be interpreted broadly. McMullen, 148 Wis. 2d at 276, 434 N.W.2d at 833. Nothing in the statutory language indicates that a reasonable accommodation must immediately remove the difficulty caused by the hardship. Numerous courts in other jurisdictions applying similar federal and state laws prohibiting handicap discrimination in employment have concluded that granting an employee a leave of absence to pursue medical treatment is a "reasonable accommodation."

217 Wis. 2d at 18-19.

As it recognized, the Court in Target Stores was drawing on the principle articulated in McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Wis. Ct. App. 1988), that the "reasonable accommodation" requirement should be interpreted broadly so as to effectuate the legislative intent of encouraging and fostering to the fullest extent practicable the employment of all properly qualified individuals regardless of any disability. That principle has recently been re-affirmed in the Wisconsin Supreme Court's decision in Crystal Lake Cheese Factory v. LIRC and Catlin, 2003 WI 106, 258 Wis. 2d 414 654 N.W.2d 286. In that decision, the Court accepted LIRC's interpretation, that Wis. Stat. § 111.34(2)(a) did not necessarily require an employee be able to perform all of the job-related functions, only some or most, and that as long as the employee could perform some of the job responsibilities, modification of the duties could be a reasonable accommodation that the employer should make. 2003 WI 106 at ¶¶ 28-29.

Consistent with its understanding of the duty of reasonable accommodation as interpreted in these decisions, the commission believes that whether or not Geen was properly offered the opportunity to establish that his absences should be treated as covered under the federal FMLA, Stoughton should have extended to him the reasonable accommodation of "clemency and forbearance," temporarily tolerating the absences which were being caused by his disability, while the medical intervention which had already begun was allowed to take its course and to potentially resolve the problem of those absences. For that reason, the commission would reach the same conclusion of law in this case even if the FMLA issue were not considered.

Note Concerning Attorneys' Fees -- When this matter was initially pending before the ALJ, complainant requested an award of attorneys fees in the amount of $18,358.25 for Attorney Haber and $18,656.25 for Attorney Schwartz, as well as costs in the amount of $2,440.19 to Attorney Schwartz. Arguing that there was a significant duplication of effort between Attorneys Haber and Schwartz, the respondent urged that the fees should be reduced by at least $13,545.50. Applying an across-the-board reduction of 15% of the total amount of time in the entries contested by the respondent as duplicative, the ALJ awarded attorneys fees of $16,472 to Attorney Haber and $16,685 to Attorney Schwartz, and costs of $2,300.19 to Attorney Schwartz. In its petition for commission review, the respondent renewed its objection concerning duplication of effort between Attorneys Haber and Schwartz.

Contemporaneously with the filing of the brief on behalf of the complainant on February 21, 2000, a request was filed (with supporting materials) for an award of additional attorneys fees in the amount of $2,068.75 for Attorney Haber and $3,387.50 for Attorney Schwartz, as well as additional costs in the amount of $42.87 (to Attorney Schwartz), in connection with the petition for review proceedings.

In the respondent's reply brief filed on March 6, 2000, the only objection raised to the requested additional attorneys fees in the petition for review proceeding, was an objection that $600 in fees connected to a motion to dismiss the petition for review should be disallowed.

The motion to dismiss the petition for review was not, as the respondent argues, "frivolous." Based on information provided to them by the Equal Rights Division, complainant's attorneys had a reasonable basis for believing, at the time they filed the motion, that the Equal Rights Division had in fact not received a petition for review within the 21-day deadline following the issuance of the ALJ's decision. While it subsequently developed, that the petition had in fact been timely filed, this does not change the fact that Geen's attorneys had been given reason to believe that no timely petition had been filed.

The commission is satisfied that the attorneys fee award made by the administrative law judge was reasonable and appropriate. It also concludes that the amount of attorneys fees sought by the complainant for the initial commission review proceedings was reasonable, and that (as discussed above) there are no grounds to disallow the portion of those fees attributable to the motion to dismiss the petition for review which was pursued based on a reasonable belief that it was justified. Therefore, the commission incorporates into its order in this matter a specific direction for payment of these amounts.

Complainant is entitled to additional attorneys fees in connection with the proceedings which followed the commission's first decision. However, at this point no specific request has been made relating to that portion of the case. This is understandable considering the procedural history of this matter. The commission would also note, that in establishing a briefing schedule for the submission of argument on remand, it did not specifically direct that a specification of additional fees sought be set forth. Particularly considering the likelihood of further appeals in this matter, the commission believes that the most sensible course at this point is to simply order that reasonable attorneys fees be allowed in connection with the litigation following the point of the commission's initial decision, with the specific amount to be determined later if and when the decision finding discrimination becomes final.

cc: 
Attorney Brett C. Petranech
Kelly & Petranech LLP

Attorney Amy O. Bruchs
Michael Best & Friedrich LLP

Attorney Paul F. X. Schwartz

Attorney Darcy C. Haber

Appealed to Circuit Court.  Affirmed on the merits, remand ordered as to partial fee reduction issue, May 13, 2004.  Appealed to the Court of Appeals. Affirmed, Stoughton Trailers, Inc. v. LIRC and Geen, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102.   Affirmed, Stoughton Trailers, Inc. v. LIRC and Geen, 2007 WI 105, __ Wis. 2d __, __ N.W. 2d __ .

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(1)( Back ) The Court of Appeals also provided that on remand, the commission could elect to take additional evidence in order to provide a complete record on the issues. Neither party has urged that any further hearing be held. The commission also concluded that it was not necessary to take additional evidence in order to adequately address the issues posed on remand. Therefore, the commission has proceeded on the basis of the existing evidentiary record which was originally made before the ALJ in this matter.

(2)( Back ) As the Circuit Court noted, there was a typographical error in Paragraph 15 of the Findings of Fact, by which an incorrect reference was made to another paragraph of the findings. This error has been corrected. In addition, the commission has re-worded Paragraph 22 of the Findings of Fact because it was concerned that the original wording of that paragraph could be misconstrued as a conclusion of law touching upon the scope of the duty of reasonable accommodation. The commission intended, and intends, no such conclusion of law by the wording of that finding.

(3)( Back ) Wis. Stat. § 111.322 provides: 

111.322 Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following: 

(1) To . . . terminate from employment any individual . . . because of any basis enumerated in s. 111.321 (emphasis added).

(4)( Back ) The commission's views on this point also relate to the fact, of which it is sure the Court of Appeals is aware, that the commission has never had any program responsibilities calling upon it to engage in interpretation of the federal FMLA (or even the Wisconsin FMLA, for that matter), and that as a result the commission has no experience whatsoever in the interpretation and application of the FMLA. Therefore, any such interpretation engaged in by the commission in this case would, without doubt, be subject to the de novo review standard on any subsequent appeal to court. UFE Inc. and Pacific Indemnity Company v. LIRC and Huebner, 201 Wis. 2d 274, 285, 548 N.W.2d 57 (1996). The difficulty in discerning any purpose in directing the commission to engage in such an essentially pointless exercise suggests that this was in fact not intended by the Court of Appeals.

uploaded 2003/09/15