JOYCE HURCKMAN, Complainant
ASSOCIATED MILK PRODUCERS INC (AMPI), Respondent
An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:
1. The respondent, Associated Milk Producers Inc., (hereinafter "respondent"), is a dairy co-op which operates thirteen receiving and packaging plants throughout the Midwest. Cheese in bulk form is sent from other plants to the respondent's Portage plant, where it is cut, packaged and labeled for customers.
2. The complainant, Joyce Hurckman, (hereinafter "complainant"), began working for the respondent at its Portage plant in August of 2002. She began her employment as a temporary employee through a temporary employment agency.
3. While working for the respondent as a temporary employee, the complainant was primarily assigned to the loaf department, where her main job duty was to open plastic pouches so they could be filled with hot cheese. The complainant also performed other tasks including repalletizing cheese (taking cheese off a pallet, removing a wooden slat, and putting it on another pallet), putting cheese in boxes, and checking wrapped blocks of cheese to make sure they were properly sealed.
4. All of the respondent's permanent employees are covered by a labor agreement. Pursuant to the labor agreement, a temporary employee may work for the respondent no more than ninety days, after which the respondent is required to release the temporary employee from his or her employment or extend an offer of full-time permanent work.
5. When the complainant had worked for the respondent about ninety days as an employee of the temporary agency, she applied for ongoing employment on the respondent's payroll. At that time the respondent had an opening for a light utility worker. The light utility worker's job is to fill in for any position throughout the plant, excluding those involving very heavy lifting, for other workers who are on breaks or absent. As a light utility worker, the complainant would have been expected to perform various job duties she had not been asked to perform as a temporary employee.
6. On or about November 22, 2004, the respondent offered the complainant the light utility worker position, subject to a pre-employment physical.
7. On November 27, 2002, the complainant underwent the pre-employment physical. The examination was performed by Dr. Kenneth Oh, a doctor of physical medicine and rehabilitation. During the examination the complainant reported that she had a history of carpal tunnel syndrome, for which she had had surgery in early 2000, and was now fine. The examination report indicates that the examination revealed "slight weakness of thumb abductors." Dr. Oh told the complainant that she was capable of doing the job, but that he had to write restrictions based upon her history of carpal tunnel syndrome.
8. On November 29, 2002, Doctor Oh faxed a report to the respondent in which he indicated that the complainant was medically qualified to fulfill the essential demands of the proposed job, with the following accommodations and/or restrictions:
Recommend employee [avoid] (1) frequent repetitive [two words crossed out] wrist extension/flexion, sustained prolonged wrist flexion/extension, or forceful repetitive grasping and frequent use of vibrating tools. Occasional above activities OK. If employee must do repetitive wrist flexion/extension work, then employee should wear neutrally aligned wrists splints.
9. The respondent reviewed the report and concluded that the complainant would not be able to perform the job with those restrictions, since the light utility worker position would have included work that required a substantial amount of wrist flexion and repetitive wrist motions. Because the light utility worker must be able to fill in for any production position in the plant, an employee who is limited in the number of jobs she can perform would be unsuited for the position.
10. The respondent had no other permanent positions available. Moreover, if it had other positions, it would have been required to open those up for bidding pursuant to the labor agreement.
11. On December 2, 2002, the complainant's supervisor called the complainant into the office. In the presence of a second supervisor, the complainant's supervisor gave her a copy of Dr. Oh's recommendation and told her she was being discharged because she had carpal tunnel syndrome.
12. The complainant asked to see the human resources manager, Tom Ament, who confirmed that she was disqualified from the job based upon Dr. Oh's recommendation, and that he had no other positions available. The complainant asked Mr. Ament whether he had spoken to Dr. Oh or reviewed the examination report, and Mr. Ament indicated he had not done so. The complainant told Mr. Ament he should contact Dr. Oh if he had any questions. Mr. Ament did not do so because he did not believe he needed any further information.
13. Although the complainant has a history of carpal tunnel syndrome, the problem had been corrected through surgery prior to her employment with the respondent. The complainant's doctor issued her a full work release on May 9, 2000, at which time the complainant was working as a machine operator at a chemical plant. Thereafter the complainant was able to perform her job duties at the chemical plant, which required her to lift and carry heavy bags and buckets and climb tall ladders several times a day, without any problems. The complainant left that employment for reasons unrelated to her carpal tunnel syndrome. She was subsequently employed at a seed company, at which she packaged seeds, and at a printer, where she put pages into binders, prior to coming to work for the respondent. The complainant had no problems performing any of these jobs.
14. The respondent revoked its job offer because it perceived the complainant as having a disability that interfered with her ability to perform the job.
15. In December of 2002 the complainant did not have any medical restrictions and required no special accommodations. She did not have a disability that was reasonably related to her ability to adequately perform the job-related responsibilities of the light utility worker position.
Based upon the FINDINGS OF FACT made above, the commission makes the following:
1. There is probable cause to believe the complainant is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.
2. There is probable cause to believe that the respondent discriminated against the complainant because of a disability, in violation of the Wisconsin Fair Employment Act.
Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:
The decision of the administrative law judge is reversed. This matter is remanded to the Equal Rights Division for further proceedings.
Dated and mailed March 22, 2005
hurckjo . rrr : 164 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The complainant's burden in a disability discrimination case is to show that she is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (Act), and that the respondent took one of the actions enumerated in Wis. Stat. § 111.322(1), which include, but are not limited to, refusing to hire, employ or terminate from employment, on the basis of her disability. Target Stores v. LIRC, 217 Wis. 2d 1, 9-10, 576 N.W.2d 545 (Ct. App. 1998).
Section 111.32(8) of the Act defines the term "individual with a disability" as 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. An "impairment" for purposes of the Act 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 concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 571, 369 N.W.2d 735 (1985).
At the hearing the respondent took the position that the complainant could not prevail because she cannot prove she has a disability. The respondent did not elaborate upon this theory, and the commission sees no reason to conclude that the complainant failed in her initial burden. Carpal tunnel syndrome constitutes an impairment under the Act. Jones v. United Stationers Inc. (LIRC, Jan. 25, 2001). See, also, Mateski v. Nuto Farm Supply (LIRC, Feb. 15, 2005). Although the complainant contends that her carpal tunnel syndrome does not make achievement unusually difficult for her or limit her capacity to work, it is clear that the respondent viewed it as placing a limitation on her capacity to work, since it specifically told the complainant her carpal tunnel syndrome disqualified her from performing the light utility worker job, and revoked its job offer on that basis. Under the circumstances, the evidence warrants a conclusion that the respondent perceived the complainant as having an impairment that limited her capacity to work and that it engaged in one of the actions enumerated in the statute when it refused to employ her because of her perceived disability. The complainant has therefore met her initial burden.
The burden then shifts to the respondent to demonstrate both that the disability was reasonably related to the complainant's ability to adequately perform the job-related responsibilities of her employment and that accommodation of her disability would pose a hardship on its business. See Wis. Stat. § 111.34. The respondent has not met its burden in this case. Although the respondent contended that the complainant could not perform the job because of her carpal tunnel syndrome, its only evidence on this point is a note in the margin of the employee examination report indicating that the complainant had a slight weakness of the thumb abductors. This note is not part of a certified medical report and constitutes mere hearsay, as does the document containing the doctor's work recommendations. Even if there were no hearsay considerations and the evidence could be relied upon for the truth of the matter asserted, the fact that the complainant had slight weakness of the thumbs would not warrant a conclusion that she was limited in terms of repetitive wrist movements or needed to wear wrist splints. Dr. Oh did not appear at the hearing to explain how he arrived at that conclusion, and it does not appear that he did so based upon an individualized assessment of the complainant's capabilities. To the contrary, the complainant testified that Dr. Oh told her he was obligated to recommend the restrictions based on her history of carpal tunnel syndrome. The complainant further testified that she had no work restrictions and required no special accommodations, and that her own doctor had given her an unconditional work release two years earlier, after which she had been able to perform a variety of jobs with no problems or difficulties.
The statute is intended to prevent the denial of employment to individuals who are either disabled, but can perform efficiently, or are not disabled at all, although they may have some actual impairment that would lead to a perception of a disability. Brown County v. LIRC, supra, at 570. The respondent is not entitled to rely on work restrictions concocted by its own doctor, which were not requested by the complainant and which the respondent is unable to establish were valid or necessary, in order to deny the complainant employment. Because the evidence establishes probable cause to believe the respondent failed to employ the complainant based upon a perceived disability, and that its actions were in violation of the Act, the dismissal of the complaint is reversed.
NOTE: The commission did not confer with the administrative law judge regarding his impressions of witness credibility and demeanor. The commission's reversal is not based upon a differing assessment of witness credibility, but is as a matter of law.
cc:
Attorney Dennis Merley
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]