DENNIS L KASUBOSKI, Complainant

FONDA GROUP INC, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:

Findings of Fact 19. and 20. are deleted.

The following findings of fact are added to more accurately and completely reflect the evidence of record:

19. At the time he began his disability leave in August of 1998, Complainant was working as the sole maintenance group leader in the portion cup unit on third shift (11:00 p.m. to 7:00 a.m.). At least 80% of Complainant's work time in this position was devoted to performing maintenance mechanic work. There was no other maintenance mechanic regularly assigned to the portion cup room on third shift. Complainant did not interact with vendors unless he was working overtime on first or second shift. Complainant did not assign work to maintenance mechanics unless such mechanics were performing overtime work on third shift or unless a group leader assigned to another shift was absent.

20. Performing maintenance mechanic work frequently requires lifting 20 pounds and regularly requires lifting 50 pounds. This lifting cannot always be accomplished with the assistance of lifting devices or other workers. Maintenance mechanic work is not sedentary work.

21. In his application for long-term disability benefits, Complainant stated that his group leader position had "strong" physical requirements.

22. During the time period relevant here, there were no sedentary positions in the relevant employing unit.

23. Fifty percent of the work time of the positions assigned to the parts cage required standing or walking. These positions required lifting items weighing 20 pounds or more ten to fifteen times per week. There were no vacancies in these positions during the time period relevant here. There had been no vacancies in such positions for at least five years prior to October of 2000.

24. Positions in the relevant employing unit were required to be filled through the posting and bidding process specified in the contract.

25. During the meeting held on November 21, 2000, to discuss Complainant's request to return to work, Complainant requested an opportunity to obtain an opinion from Dr. Roselaar, but this request was denied.

The MEMORANDUM OPINION section of the decision is deleted and the following substituted:

The Complainant alleges that he was discriminated against on the basis of disability when the Respondent failed to offer him a reasonable accommodation, and when Respondent terminated his employment.

The commission recognizes that the issue under consideration here is one of probable cause. Boldt v. LIRC, 173 Wis. 2d 469, 475, 496 N.W.2d 676 (Ct. App. 1992).

The complainant's initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

An "impairment" for purposes of the WFEA is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985); Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).

Even if the record did not support a conclusion that the Complainant suffered from an actual impairment, Respondents' termination of his employment based on his medical restrictions supports a conclusion that respondents perceived complainant to be disabled, i.e., perceived that his medical restrictions limited his capacity to work as a maintenance group leader.

Complainant next has the burden to prove that he was terminated or treated less favorably in regard to the terms and conditions of his employment because he was disabled. Target Stores, supra.; Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

Since Respondent terminated Complainant because of his medical restrictions, it is concluded that he was terminated because of an actual or perceived disability.

The focus of the analysis then shifts to Wis. Stat. § 111.34. As the Court stated in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis.2d 200, 664 N.W.2d 651 (2003), this statutory section requires "an employer to prove that, even with reasonable accommodations, the employee would not be able to perform his or her job responsibilities adequately or that, where reasonable accommodations would enable the employee to do the job, hardship would be placed on the employer." The Court went on to hold that the duty of reasonable accommodation could include modifying or removing certain job responsibilities of a disabled employee who, without accommodation, can perform most of her job-related functions.

In order to perform an analysis of the issue of reasonable accommodation, a material factual dispute must be resolved here. This factual dispute relates to the nature of the Complainant's assigned duties and responsibilities as a maintenance group leader. The Complainant contends that he spent 80% of his time as a group leader performing sedentary administrative/supervisory work, including ordering parts, working with vendors, distributing work assignments to maintenance mechanics, and monitoring the performance of these work assignments. However, the record shows that, as the third-shift maintenance group leader in the portion cup unit, Complainant would have had little, if any, direct contact with vendors, and would only have assigned and monitored the work of maintenance mechanics if first- or second-shift mechanics were working overtime on third shift or if a group leader from another shift was absent. Geoff Gailey, Respondent's vice president of human resources, and Michael Albashian, one of Respondent's maintenance managers, testified that the primary focus of a maintenance group leader position is to perform maintenance mechanic work at the highest level, which Albashian, who had been a maintenance mechanic and a group leader before becoming a manager, testified consumed 80-90% of a group leader's work time. Both Gailey and Albashian also testified that neither the union nor the employer has ever suggested that the group leader positions be removed from the bargaining unit due to the predominance of administrative and supervisory duties and responsibilities. Finally in this regard, the Complainant, in his application for long-term disability benefits, characterized his group leader position as having "strong" physical requirements. The commission credits the Respondent's contention here, and concludes as a result that at least 80% of Complainant's group leader position's work time was devoted to the performance of maintenance mechanic duties, and that these duties were not sedentary in nature but instead required frequent movement and frequent lifting of items weighing 20 or more pounds and regular lifting of items weighing 50 or more pounds.

Another ancillary issue relates to the Respondent's reliance on the work restrictions established by Dr. Mielke which Complainant submitted to the Respondent on or after October 30, 2000, in response to its request for an update on his medical condition. Complainant argues that Respondent was required to permit him to obtain an opinion from Dr. Roselaar who was more familiar with his condition. The Complainant's argument is not persuasive. Dr. Mielke was the physician chosen by the Complainant to supply the opinion. He was aware of the content of Dr. Mielke's opinion when he provided it to the Respondent. He believed that Dr. Mielke's restrictions would qualify him for light duty, even though he now claims that he was performing heavy farm work at the time and was then able to perform maintenance mechanic work without restriction. Only when he became aware that the Respondent was not going to assign him to light duty did he request that he be allowed to shop for an opinion from a different physician. The commission concludes that the Respondent was justified in its reliance upon the medical opinion of Dr. Mielke provided by the Complainant, and it was not required to permit him to obtain an opinion from Dr. Roselaar.

Given the nature of the Complainant's group leader duties and responsibilities, and the available medical information, the commission concludes that the Respondent did not fail to reasonably accommodate the Complainant. The Complainant was restricted to sedentary work with a 20-pound lifting restriction. This restriction would have prevented him from performing those duties to which he devoted at least 80% of his work time. A reasonable accommodation under the WFEA would not require modification of a position's duties and responsibilities to this extent.

Transfer can also constitute a reasonable disability accommodation under the WFEA. McMullen v. LIRC, 148 Wis.2d 270, 434 N.W.2d 830 (Ct. App. 1988). However, this would not require the creation of a new position or significant modifications to an existing vacant position. See, Kinion v. Portage Community Schools, ERD Case No. CR200003066 (LIRC Sept. 19, 2003). The evidence of record supports a conclusion that there were no sedentary positions in the relevant employing unit. Although the Complainant asserts that such a position existed in the "parts cage," the record shows that there were no vacancies in such positions during the time period relevant here and, even if there were, incumbents of these positions spent half their work time "on their feet," and were required to lift items weighing 20 pounds or more 10-15 times per week, i.e., the duties of these positions were inconsistent with the Complainant's restriction to sedentary work with a 20-pound lifting restriction.

The Complainant also argues that the Respondent was required as a reasonable accommodation to assign him to light duty work. The commission disagrees. Such a light duty assignment is an appropriate accommodation during a healing period of short duration where there is a reasonable expectation that, at the end of this healing period, the employee will be able to resume his regular duties and responsibilities. The Respondent had assigned the complainant to light duty work in the past under such conditions. Here, however, the Complainant had already been granted a healing period of 27 months, and the medical restrictions he presented to the Respondent at the end of this period of disability leave were indefinite in duration and apparently permanent in nature.

Finally, it should be noted that the information offered by the Complainant in his petition for commission review was not part of the record of the hearing, at which he was represented by counsel, and was reasonably discoverable prior to the date of such hearing. As a result, further hearing is not justified, and the commission did not consider such information in reaching its decision here. In addition, the parties also presented several arguments relating specifically to the requirements of the federal Americans with Disabilities Act, but this case was brought pursuant to the Wisconsin Fair Employment Act, and such arguments are inapposite as a result.

The commission concludes that the Complainant failed to sustain his burden to prove that he had been discriminated against on the basis of disability as alleged.

DECISION

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed April 30, 2004
kasubde . rmd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: Attorney John E. Thiel

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