DAWN M. MATESKI, Complainant

NUTO FARM SUPPLY, 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:

1. In the second line of paragraph 10 of the FINDINGS OF FACT, the word "sorting" is deleted and the word "inspecting" is substituted therefor.

2. In paragraph 3 of the ORDER, where the date "November 27 of 2001" appears, it is deleted and the date "April 16, 2002" is substituted therefor.

3. In paragraph 4 of the ORDER, the date "November 27 of 2001" is deleted and the date "April 16, 2002" is substituted therefor.

4. Paragraph 6 of the ORDER is deleted and the following paragraph is substituted therefor:

The Respondent shall pay the Complainant's reasonable attorney's fees and costs incurred in this matter. The amount of attorney's fees to date is $8,258.40, and the amount of the costs to date is $1,261.71. The combined total amount of attorney's fees and costs is $9,520.11. The Respondent shall issue a check for this total amount payable jointly to Dawn Mateski and Teresa E. O'Halloran and the check should be delivered to Attorney O'Halloran's law firm.

5. Paragraph 7 of the ORDER is deleted and the following paragraph is substituted therefor:

That within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the commission's order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) 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.

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

Dated and mailed February 15, 2005
matesda . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The Wisconsin Fair Employment Act defines an "Individual with a disability" to mean an individual 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." Wis. Stat. § 111.32(8).

As the court indicated in Target Stores v. LIRC, 217 Wis. 2d 1, 9-10, 576 N.W.2d 545 (Ct. App. 1998), in a disability discrimination case the complainant must show that: (1) she is disabled within the meaning of the WFEA; and that (2) the respondent took one of the enumerated actions stated in Wis. Stat. § 111.322(1)(e.g., to refuse to hire, employ or terminate from employment) on the basis of her disability. Once the complainant has met these two showings, the respondent must show either that a reasonable accommodation would impose a hardship [§ 111.34(1)(b)], or that, even with a reasonable accommodation, the complainant cannot adequately undertake the job-related responsibilities [§ 111.34(2)(a)].

The respondent first asserts that under the Americans With Disabilities Act (ADA), carpal tunnel syndrome was not found to be a disability at all, citing Toyota Motor Mfg. v. Williams, 534 U.S. 184 (2002). However, the ADA defines a "disability" as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." (Emphasis added.) Construing the ADA, the Court concluded that "an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." Further, the Court noted, citing its earlier decision in Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999), that "even assuming that working is a major life activity, a claimant would be required to show an inability to work in a 'broad range of jobs,' rather than a specific job."

As stated above, however, under the WFEA the term "disability" is defined as including an individual who "Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work." (Emphasis added.) In City of La Crosse v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510 (1987), the Wisconsin Supreme Court held that "limits the capacity to work" refers to the particular job in question. In City of La Crosse, the court also stated that "an impairment for purposes of the statute is a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition." Id. (Emphasis added.)

The respondent, however, questions whether the complainant was limited in her capacity to work at her job. The respondent asserts that the complainant's "job" is working in the warehouse. The respondent asserts that it is only during the relatively brief period of the potato harvest (3 to 4 weeks) that warehouse employees all work at the same job, inspecting potatoes, and that thereafter there are different tasks to be performed, but they are not treated as specific, separate jobs for which people specifically apply. The respondent asserts that when the complainant complained about her wrists she was given other assignments and kept doing her "job."

However, the respondent's suggestion that Mateski was not limited in her capacity to work and therefore not perceived as having a disability fails because the evidence shows that when she returned to work in September 2001 the respondent was concerned about her ability to do the work due to the problems she had previously experienced with her wrist. This perception by the respondent is indicated by the respondent itself through the testimony of Dennis West and the September 18, 2001 document (Exhibit 12) he required Mateski to sign. West testified that in September 2001 after asking the complainant how she felt and that Mateski said her wrists were fine, he told her, "I'm apprehensive about bringing you back in" because of some of the trouble that she had had with her wrists in the spring. T 210. While the respondent apparently attempts to argue that it was only concerned about the 3 to 4 week period during the harvesting of potatoes when the inspecting work occurred, West's own testimony indicates that his concern was not limited to her capacity to work beyond that period because he also references the trouble Mateski previously had had with her wrists in the spring. It was after the harvest was completed, during the winter and spring in 2001, while Mateski was doing sorting/grading work that she complained of the problems with her hands and wrists. Indeed, there are similarities in the movements workers make with their hands when performing inspection and sorting/grading work.

Also, the fact that there are different tasks that can be performed as a warehouse worker fails to establish that the respondent did not perceive her to be limited in her capacity to work in her job as a warehouse worker. First, it appears that the inspecting and grading/sorting work constituted a substantial portion of the work performed by warehouse workers. Second, West did not even consider Mateski for work on some of the warehouse jobs, such as sweeping/shoveling and a number of jobs involving running the stinger, because they were heavy jobs and considered "guy jobs." It thus can be reasonably concluded that the respondent perceived Mateski as having an impairment that limited her capacity to work in the position of a warehouse worker.

The second element of a complainant's burden of proof in a disability discrimination case is to show that the respondent refused to hire/employ, terminated from employment, etc., the complainant on the basis of his or her disability.

The respondent argues that Mateski cannot meet her burden of showing that it perceived her as disabled at the time it determined not to rehire her. The respondent argues that following Mateski's return to work in the fall of 2001, there was no indication of any impairment whatsoever and hence there could be no perception of one. The respondent argues that after returning to work in 2001 and after signing Exhibit 12, Mateski performed both the inspection work and the sorting/grading work without complaint, and apparently without wearing a splint.

The commission is persuaded that the respondent did continue to perceive Mateski as disabled and that it terminated her employment based on that perception, however. For instance, the evidence shows the following: After the harvesting was completed in the fall of 2001, the respondent placed Mateski in the bag flipping position, the position the respondent had placed her in when she complained of problems with her wrist during the spring of 2001, instead of assigning her to work grading/sorting potatoes. West claimed that Mateski was kept at bag flipping because she had a problem relating to other employees and that in the bag flipping position Mateski would not be in close physical proximity to other employees. However, with respect to the two alleged incidents on which West based Mateski's claimed problem of interacting with other employees, West admitted that he did not know exactly what had transpired in one of the incidents, and he admitted that he had not observed the other incident, talked to Mateski about it, or talked to anyone else to see if they saw what happened. Mateski denied have trouble getting along with any co-workers. Also, Mateski testified that when she was laid off at the end of November 2001 West told her she was a good worker and that he enjoyed having her around, and both Mateski and her husband testified that West told her he would try to have her back at work by Christmas and if not then, in January. Mateski testified that in January 2002 she called the respondent and spoke to the respondent's secretary and bookkeeper, Jane Olsen about coming back to work, but Olsen told her that she (Mateski) did not work there anymore and hung up. The respondent never did call Mateski back to work but did recall/hire other persons (by 4/16/02, the date West states would have been the earliest date Mateski would have been recalled, the number of employees on the respondent's payroll exceeded the number on the payroll at the time Mateski was laid off in November 2001). The respondent claims that Mateski was not called back because she had an attitude and attendance problems. However, no one at the respondent had ever told Mateski they thought she had an attitude or attendance problems, she was never written up or disciplined for these problems, and Mateski's termination came long after these problems had allegedly occurred.

As stated by the U. S. Supreme Court in Reeves v. Sanderson Plumbing, 530 U.S. 133, 147-148, 120 S.Ct. 2097 (2000):

In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence of law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." (Citations omitted.) Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. (Citation omitted.)

The Court went on to note that such a showing by the plaintiff will not always sustain a finding of liability, as certainly there will be instances where the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, but no rational factfinder could conclude that the action was discriminatory. Id. at 148. The commission does not find this to be such a case.

In reaching its decision in this matter the commission notes that it is evident by the findings of fact made by the ALJ that he found the testimony of Mateski and of her husband to be credible. The commission has also considered the respondent's various bases for challenging Mateski's general credibility but find them unavailing.

Finally, the commission notes the ALJ's memorandum opinion statement that "...since the duty of reasonable accommodation only applies where there is an actual disability [i.e., a disability under sec. 111.32(8)(a), Wis. Stats.], the Complainant in this case cannot establish that she was discriminated against in regard to refusal to reasonably accommodate a disability because the Complainant did not meet the legal burden to establish that she had an actual disability within the meaning of the statute." The commission has not previously specifically addressed this question. The commission notes that under the ADA the federal courts are not in complete agreement on whether or not the duty of reasonable accommodation is limited to plaintiffs who have an actual disability. See e.g., Weber v. Strippit, Inc., 186 F.3d 907, 917 (8th Cir. 1999)("regarded as" disabled plaintiffs are not entitled to reasonable accommodations) and Newberry v. East Texas State University, 161 F.3d 276, 280 (5th Cir. 1998)(an employer need not provide reasonable accommodation to an employee who does not suffer from a substantially limiting impairment merely because the employer thinks the employee has such an impairment). For decisions to the contrary, see e.g., Katz v. City Metal Co., 87 F.3d 26, 33-34 (1st Cir. 1996)(Regardless of actual medical condition, plaintiff provided a basis for the jury to conclude that employer perceived him to be disabled. Plaintiff's suggested accommodations were rejected out of hand by the employer and district court did not say that plaintiff had failed to show that he could perform his job with reasonable accommodations, nor did employer offer any argument as to this element on appeal. Court reversed and remanded for a new trial under any or all of the three theories of disability under the statute.) Also, see, Jacques v. DiMarzio, Inc., 200 F. Supp. 2d 151, 159-161 (E.D.N.Y. 2002)(Summary judgment denied in part because although the record failed to establish that plaintiff was substantially limited in her ability to work, factual issues remained, including whether plaintiff was regarded as disabled and whether she was qualified to perform her job with or without reasonable accommodation.).

Regardless of the relative merits on this question, the commission finds it unnecessary to decide this question in this case because it finds that the employer did reasonably accommodate what it perceived to be Mateski's disability. Mateski's primary argument appears to be that the respondent did not immediately abide by Dr. Pebler's work restrictions. See ALJ's finding of fact 7. However, the evidence shows that on the same date that Mateski presented the respondent with Dr. Pebler's February 21, 2001 return to work slip the respondent assigned her to bag flipping. What Mateski is apparently claiming is that sometime later in February she was assigned to a job pulling out sprouting potatoes off the line, which was work not within her restrictions. West testified, however, that sprouting potatoes is normally something that happens in the spring and that to his knowledge the respondent has never done any sorting of sprouting potatoes in February. In any event, the evidence also shows that when Mateski's husband complained about whatever job it was that Mateski felt was not within her work restrictions, the respondent moved her to work that was within her work restrictions. Indeed, the ALJ finds that after the complaint by Mateski's husband, Mateski's "restrictions were followed for the most part until the Complainant was laid off in May 2001 pursuant to the Respondent's normal seasonal layoff." See finding of fact 7. Mateski's only other complaint in this regard appears to be that after the inspection work was completed in the fall of 2001 and she resumed bag flipping, there were times when she would be assigned to grading/sorting of potatoes. However, the evidence shows that Mateski performed this work without complaint.

Attorney's Fees

The ALJ determined, and the commission agrees, that "In effect, the Respondent has refused to reemploy or rehire the Complainant and the Complainant has been terminated by the Respondent." (Mem. Op., p. 14.) The ALJ also determined, and the commission agrees, albeit for different reasons, that the respondent did not discriminate against Mateski on the basis of disability in regard to refusing to reasonably accommodate a disability.

Mateski requested, and was awarded attorney's fees in the amount of $7,843.50 (58.1 hours @ an hourly rate of $135), plus costs of $1,253.71 to the date of the ALJ's order in this matter. Mateski has made an additional fee request in the amount of $2,479.50 (17.1 hours @ an hourly rate of $145) for fees incurred for work performed in connection with the petition for commission review filed in this matter.

In the commission's experience, the requested hourly rates of $135/$145 are reasonable hourly rates. The commission believes, however, that a reduction of some percentage of Mateski's requested fee award is necessary to account for the fact that she has not prevailed on her claim that the respondent refused to reasonably accommodate a disability. Where a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). In determining a fee award the most critical factor is the degree of success obtained. Id. There is no precise rule or formula for making this determination. An attempt may be made to identify specific hours that should be eliminated, or the award may simply be reduced to account for the limited success. 461 U.S. at pp. 436-437. Considering the fact that overall Mateski has obtained significant success since she has prevailed on her claim that she was refused rehire and terminated based on the employer's perception that she was disabled, the commission believes that a reduction of the requested fee award by 20 percent is appropriate in this case. The commission also notes as well, that the respondent has not contested Mateski's requested fee award.

NOTE: The commission has modified paragraph 10 of the ALJ's findings because the evidence indicates that the work Mateski performed upon her return to work in September of 2001 was inspecting work. Also, the commission has changed the beginning date of Mateski's back pay and other lost benefits ordered to commence on April 16, 2002, instead of November 27 of 2001. First, the evidence shows, and the ALJ so determined, that Mateski was laid off on November 27 of 2001, "essentially by mutual agreement, in November of 2001 to give her additional time to recuperate from a miscarriage..." Mem. Op., p. 14. (Emphasis added.) See also, finding of fact no. 12 and the ALJ's Mem. Op. beginning at the bottom of page 13. Second, Exhibit E, which includes evidence regarding the number of employees on the respondent's payroll from September 2001 to April 30, 2002, seems to confirm West's testimony that the earliest that Mateski would have been called back to work was on April 16, 2002.

cc:
Attorney Teresa E. O'Halloran
Attorney Joe Thrasher

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