FREDERICK A STROIK, Complainant
WORZALLA PUBLISHING CO, 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 conclusion in that decision as its own, except that it makes the following modification:
Paragraph 10 of the administrative law judge's FINDINGS OF FACT is deleted and the following paragraphs are substituted therefor:
"10. Worzalla's decision to change Mr. Stroik's status to part-time and its subsequent decision to terminate his employment were related to his disability.
"11. Mr. Stroik's disability interfered with his ability to perform the job.
"12. Worzalla did not refuse to provide Mr. Stroik with a reasonable accommodation."
The decision of the administrative law judge (copy attached) is modified, and as modified, is affirmed.
Dated and mailed July 16, 2004
stroifr . rsd : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In his petition for commission review and supporting brief the complainant argues that he was demoted and discharged because of his disability. (1) The complainant contends that his demotion was occasioned by absences caused by his diabetes, and that his discharge was due to continuing absences related to his medical condition. The complainant maintains that, having made this showing, the burden then shifted to the respondent to show that a reasonable accommodation would pose a hardship or that, even with a reasonable accommodation, the complainant cannot adequately undertake the job related responsibilities. It is the complainant's position that the respondent should have accommodated him by granting him a leave of absence while he resolved his medical issues. He maintains that this would have been a reasonable accommodation which the respondent could have provided without hardship.
The commission agrees with the complainant's initial contention that the employment actions complained of were undertaken because of his disability. The removal of benefits (2) and the discharge decision both came about because of the complainant's absences due to illness, which were directly related to his disability. Those employment actions were, therefore, in legal effect, because of the disability. See, Crivello v. Target Stores (LIRC, Aug. 14, 1996); aff'd. sub. nom. Target Stores v. LIRC and Mary Crivello, 217 Wis. 2d 1, 576 N.W.2d 545 (Ct. App. 1998). Under the circumstances, the commission concludes that the complainant's disability was a factor in the removal of his benefits and the termination of his employment, and it has modified the administrative law judge's decision accordingly. However, this modification notwithstanding, the commission concurs with the administrative law judge's ultimate conclusion that the complainant failed to demonstrate probable cause to believe the respondent violated the Wisconsin Fair Employment Act (hereinafter "Act") in the manner alleged.
The Act provides, in pertinent part:
"It is not employment discrimination because of disability to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure."
Wis. Stat. § 111.34(2)(a).
Under the above section, it is not a violation of the Act to take an employment action based on an individual's disability if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment. However, if an employer refuses to reasonably accommodate an employee's or prospective employee's disability, and is unable to demonstrate that the accommodation would pose a hardship, then the employer violates the Act. Wis. Stat. § 111.34(1)(b). See, Target Stores, 217 Wis. 2d 1, 9-10.
The complainant's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment, as it caused him to be absent from work for extended periods of time. In his brief the complainant has not explained what type of accommodation he believes he should have received with respect to the terms and conditions (demotion/part-time) issue. While it could be presumed that the complainant felt he should not have lost his fringe benefits as a result of his disability, at the hearing the complainant testified that he believed the respondent should have paid half of his benefits while he was going through his medical problems, then resumed paying full benefits when he was able to work again. The complainant did not demonstrate that the respondent's policies contain any provision for the payment of partial benefits to employees who are on leave, nor is there any indication that the complainant proposed such a compromise to the respondent. More importantly, as the complainant acknowledges in his brief, a reasonable accommodation is an accommodation which is designed to enable the individual to perform the job-related responsibilities of his employment. The payment of the complainant's fringe benefits bears no relationship to his ability to maintain the employment or perform the job, and the commission is not persuaded that those benefits must be paid by way of reasonable accommodation.
In considering the terms and conditions issue, the commission also observes that to find a violation of the Act on this point would result in the anomalous conclusion that, while the respondent could have discharged the complainant without running afoul of the statute -- as will be discussed in more detail below -- it violated the Act when it reduced or removed his benefits but kept him employed. The complainant plainly determined that working for the respondent without certain benefits was preferable to losing the job altogether, as evidenced by the fact that he chose to remain employed, even after being placed on "part-time" status.
Turning to the discharge issue, the record indicates that the respondent discharged the complainant while he was on a medical leave of absence. Although the complainant did not make a specific request for an accommodation, it is apparent that the accommodation required was an extended leave of absence so that the complainant could retain his employment. In Janocik v. Heiser Chevrolet (LIRC, November 21, 1994), the commission discussed the circumstances under which a leave of absence might be a reasonable accommodation:
"The question of whether a leave of absence is a reasonable accommodation will depend upon the specific facts in each individual case. For instance, a reasonable accommodation does not include keeping a job open for an employe who has been unable to work for an extended period of time and for whom there is no foreseeable return to work date. Passer v. DOC (Wis. Personnel Comm., September 18, 1992). However, a medical leave of absence might be considered a reasonable accommodation where there is some reason to believe that the leave of absence will assist the employe in achieving recovery and will ultimately result in the employe's ability to return to work. [footnote omitted] In this case, the complainant was hospitalized in order to undergo surgery which, if successful, may have restored to him a measure of health which would allow him to continue working. The respondent did not establish any reason to believe that the complainant's physical difficulties were permanent or that he would not be able to return to work in the foreseeable future. Under the circumstances, it would not have been unreasonable for the respondent to accommodate the complainant's disability by allowing him to continue his leave of absence."
In the instant case, the record indicates that, in August of 2002, at which point the complainant had been off of work for over four months, the complainant told the respondent he was going to undergo surgery in September, to be followed by eight to twelve weeks of recovery. The complainant did not tell the respondent that this operation, if successful, would enable him to return to work, and did not give the respondent any reason to believe that he would be able to work any time in the foreseeable future. The complainant had already taken several extended medical leaves of absence and had never provided the respondent with any information to suggest that his absences were likely to result in the resolution of his medical issues. The respondent's witness testified that she had no indication the complainant's condition would improve in the future, and that this was a factor in the decision to terminate his employment. Although the complainant was aware that the respondent intended to terminate his employment if he did not return to work by a specific date, he did not attempt to engage in any discussion with the respondent about his medical situation or his future plans. If, in fact, the complainant believed that he would able to return to work in the foreseeable future, it was his responsibility to put the respondent on notice of this fact so that it could determine the appropriateness of extending his leave of absence.
Finally, the commission notes that, while the complainant testified he underwent surgery on September 27, 2000, which was a success, and that he was released to return to work without restrictions in November of 2000, he presented no medical records or other credible evidence to support these contentions. That the complainant did not attempt to return to work for the respondent and has not worked for any other employing unit since his discharge casts doubt on the complainant's assertion that his medical problems have been resolved. Given all the facts and circumstances, the commission sees no reason to believe that permitting the complainant to continue his medical leave of absence would have been a reasonable accommodation or that the respondent's decision to terminate the employment relationship was in violation of the Act. Accordingly, the dismissal of the complaint is affirmed.
cc:
Attorney James B. Connell
Attorney Lawrence T. Lynch
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