Wis.LIRC ER Decision: Walsh, Dennis - November 19, 2004 - Disability discrimination - complainant did not show he was terminated because of disability where the low productivity for which he was terminated was not shown to have been caused by his disability (vision impairment); even had that been shown, the accommodation of continued delegation of complainant's data entry tasks to another employee, would have been a hardship, and complainant never told employer of another potential accommodation (new software)

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DENNIS R WALSH, Complainant

TOM A ROTHE S C, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200000848,

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.

DECISION

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

Dated and mailed November 19, 2004
walshde . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The complainant in a disability discrimination case must show that he is an individual with a disability, and that the employer took the allegedly discriminatory action because of this disability. Once the complainant has made these showings, the employer must show either that a reasonable accommodation would pose a hardship, or that, even with a reasonable accommodation, the employee "cannot adequately undertake the job-related responsibilities." Target Stores v. LIRC, 217 Wis.2d 1, 576 N.W.2d 545 (Ct. App. 1998); Kinion v. Portage Community Schools, ERD Case No. CR200003066 (LIRC Sept. 19, 2003).

The commission agrees with the administrative law judge that the complainant sustained his burden to prove that he is an individual with a disability, but failed to sustain his burden to prove that he was terminated "because of" this disability.

The record does not show that the respondent was motivated by a discriminatory animus in terminating the complainant. Rothe was aware of complainant's disability when he hired him, and, during complainant's fourteen years of employment as a staff accountant, expended considerable resources in adapting the respondent's environment, equipment, and practices to accommodate his disability. Moreover, the record supports a conclusion that the respondent's staff reductions were necessitated by business conditions, and resulted in the termination of nondisabled accountants as well.

The record also fails to show that the conduct for which the complainant was terminated, i.e., his relatively low productivity, was caused by his disability. Complainant admits that, during the relevant time period, the respondent's delegation of data entry tasks to another accountant, in combination with its physical modifications to the work site and installation of adaptive equipment, constituted a reasonable accommodation and permitted him to work to the best of his ability. Despite this, and controlling for the data entry delegation, complainant, the highest paid staff accountant, was by far the least productive.

Even if the complainant had proved that his vision impairment caused the low productivity for which he was terminated, i.e., that he was terminated because of his disability, the record does not establish that the respondent failed in its duty of reasonable accommodation. There are only two accommodations at issue here, i.e., continued delegation of the complainant's data entry tasks to another employee, and use of the JAWS software. Since it is undisputed that respondent's financial situation required that it reduce its workforce, both of these accommodations contemplate the respondent retaining complainant and terminating a different staff accountant.

Although reasonable, i.e., effectively enabling the complainant to carry out his assigned tasks, the record establishes that continued delegation of complainant's data entry tasks would pose a hardship for the respondent. Although the respondent provided this accommodation to the complainant for a significant period of time, and further forbearance would not be merited as a result, he never came close to achieving the level of productivity of other staff accountants. It would be a hardship, particularly given its tenuous financial situation, for the respondent to continue to employ its highest paid yet least productive staff accountant, and to terminate one of its lower paid more productive ones.

In regard to the other accommodation at issue, the complainant argues that the respondent failed to fulfill its duty of reasonable accommodation when it did not acquire the JAWS software and provide him a reasonable period of time to work with it in performing his job responsibilities. However, given the respondent's extensive history of accommodation, consistent responsiveness to complainant's requests for accommodation, and reliance upon complainant for recommendations as to new technologies for the visually impaired, it was reasonable for the respondent to rely upon the complainant to alert Rothe to any new advances he wanted to try. The complainant did not do this, even though he was aware of the JAWS software and its potential application to his circumstances during the time period relevant here.

cc: Attorney William E. Hughes III

Appealed to Circuit Court. Affirmed July 15, 2005.

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