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


DOUGLAS SCOTT GEEN, Complainant

STOUGHTON TRAILERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199700618, EEOC Case No. 26G970757


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 and consulted with the ALJ concerning his impressions as to the credibility of the witnesses. Based on its review, the commission makes the following:

FINDINGS OF FACT

1. Complainant, Douglas Scott Geen ("Geen"), was employed for about eight years as an assembler by Respondent, Stoughton Trailers, Inc. ("Stoughton"), a manufacturer of over-the-road semi-trailers. He was discharged from his employment on January 31, 1997. At the time of his termination his wage rate was $9.52 per hour. He was a full-time employe, normally working Monday through Friday.

2. Stoughton has a "no fault" attendance policy which creates a point-based system under which employes are assigned "occurrences" for all absences and tardiness, unless the absence is one of the specified exceptions to the policy. Under Stoughton's policy, consecutive days of absence that do not qualify as some type of authorized leave usually result in the assessment of one "occurrence" for each day of absence, but a series of days of absence that are caused by the same condition and qualify for a medical leave will be treated as only one occurrence. An absence that is shown to be covered under the Family and Medical Leave Act ("FMLA") leave is not assessed as an "occurrence" at all. An "active" employe (i.e., not on layoff) can have one previous "occurrence" subtracted from their balance if they work sixty days without incurring an "occurrence."

3. As of December 11, 1996, Geen had 4.5 "occurrences" under Stoughton's "no fault" attendance policy. None of these "occurrences" were caused by absences due to any disability.

4. On Thursday, December 12, 1996, prior to the start of his shift, Geen called his supervisor, Dan Kortte, and told him he could not work that day, explaining that he had a bad headache, which he referred to as a migraine. Again on Friday, December 13, 1996 Geen called Kortte before his shift started and told him he still couldn't come to work because he was still not feeling well. On Monday, December 16, 1996 Geen was still suffering from headaches, and went to the Dean Urgent Care Center in Madison. He remained off work.

5. Stoughton Trailers' human resources administrator during this time was Tammy Droessler. One of the duties of Droessler's job was to scan the attendance logs and other data for names of employes who had been off work for three or more consecutive work days. If such an absence appeared to be due to illness, the company's policy was to require a release for work without restrictions from the employe's physician, unless waived by the company.

6. On December 17, 1996 Droessler sent Geen a standard letter indicating that Stoughton Trailers' records showed he had been off work since December 12. The letter told Geen that he was required to bring in a release-for-work slip when reporting for work. The letter also told him that to have the absence qualify as a medical leave he had to provide Stoughton with medical documentation from his physician stating why he was absent and how soon he could be expected to return to work, within 15 days from the date of the letter. The December 12 letter also told Geen that to have the absence qualify as FMLA leave, he had to complete an attached Department of Labor certification form and return it to the Stoughton Trailers Human Resources Department, within 15 days from the date of the letter.

7. During this absence Geen saw a physician's assistant on December 30, 1996 and Dr. Gray Erlacher on January 6, 1997. Dr. Erlacher's diagnostic impression was that Geen was suffering from migraine headaches, adjustment disorder with anxiety and depression, and a left shoulder strain. He prescribed Paxil for his depression, Trazadone to help him sleep, and Midrin to relieve his headaches.

8. Geen returned to work on January, 8, 1997. On that day gave Droessler a return-to-work slip from Dr. Erlacher, a note from Dr. Erlacher indicating that he had seen Geen on December 30, 1996 and January 6, 1997 for headaches, and two prescriptions, one for Midrin and one for Trazadone. The information Geen provided did not include any statement by a physician saying that he had been unable to work on any particular day of his absence. Geen also did not return the Department of Labor certification form required to establish that his absence could qualify for FMLA leave.

9. Droessler told Geen that he needed to have his doctor complete the Department of Labor certification form required to establish that his absence could qualify for FMLA leave or else he would be assessed an "occurrence" for the period of absence. However, Geen did not thereafter do so.

10. Droessler accepted the material Geen provided as sufficient medical documentation to qualify the period from December 12, 1996 through January 7, 1997 as a medical leave. On that basis, Geen was assessed one "occurrence" under Stoughton's "no-fault" attendance policy for his absence from December 12, 1996 through January 7, 1997. Thus, as of Geen's return to work on January 8, 1997, he had an accumulated balance of 5.5 "occurrences."

11. On January 21, 1997 Geen filled out a vacation request form for January 23, 1997, and left it on Kortte's desk. He then took January 23 off. He was not ill that day, but took the day off as a vacation day. By mistake, however, Kortte did not record January 23, 1997 as a vacation day for Geen. Instead he recorded it as a day of family/medical leave. He had no basis for recording it this way.

12. On Friday, January 24, 1997 Geen called in before his shift started and reported that he could not work that day because he had a migraine headache. This was recorded in the company's attendance log. The attendance log also showed that he called in again on Monday morning, January 27, 1997 and reported that he couldn't work because of headaches and was going to the doctor the next day, and that he called in on Tuesday morning, January 28, 1997, and reported that he was seeing the doctor that day.

13. On January 28, 1997 Geen saw Dr. Enrique Luy at the Stoughton Hospital. After examining him the doctor assessed Geen's condition as: "Cephalgia, nature undetermined, psychogenic versus migraine versus vascular headache." Dr. Luy advised Geen to establish a regular doctor as his primary physician, and suggested that he might need to see a neurologist for evaluation of his headaches.

14. On January 29, 1997 Geen went to work and punched in, but his supervisor told him to punch out and go to the human resources office. Geen went to the human resources office and spoke to Droessler. He told her that he needed to go on medical leave because he had headaches and was shaky.

15. During the meeting on January 29, 1997, Droessler handed Geen another standard letter with the same information as in the letter described in paragraph 7 above, noting that Geen had been off work since Friday, January 24, 1997. She emphasized to him the need to get medical documentation in within 15 days of the date of the letter.

16. The next day, January 30, 1997, Geen was seen in the Dean Medical Center by M. A. Hansen, M.D., who examined him and assessed him as follows: "Patient has quite textbook examples of migraine headaches, which have increased in frequency and intensity since beginning a prescription of Paxil." Dr. Hansen took Geen off Paxil and prescribed Midrin for his headaches, and scheduled a follow-up exam for him in one week. He gave Geen a note that day stating that he was being evaluated for migraines.

17. On that same day (January 30, 1997), Geen gave Droessler the note which Dr. Hansen had given him. When she was handed the note, Droessler told Geen that he needed to bring in a doctor's note saying he could return to work without restrictions.

18. Geen went back to Dr. Hansen's office on January 31, 1997 and obtained a note indicating that he was released for work without restrictions. This release also stated that Geen had been unable to work on January 27 and 28, 1997. It did not indicate that he had been unable to work on January 24, 1997. On the same day that he got this note from Dr. Hansen (January 31, 1997), Geen gave it to Droessler.

19. After Geen gave her the note from Dr. Hansen on January 31, 1997, Droessler told Geen that he was being discharged because his medical documentation did not excuse him for Friday, January 24, 1997, causing him to accrue an occurrence for that date, which put him at 6.5 occurrences.

20. At some time following January 31, 1997, Stoughton incorrectly determined that Geen's absence on January 23, 1997 was a "no call/no show," rather than a vacation day (which is what Geen had requested) or a family/medical leave day (which is what Geen's supervisor, Kortte, had recorded). The basis for its conclusion that January 23, 1997 was a no call/no show absence was its failure to find any indication that Geen had called in or requested January 23 off in advance. However, on January 31, 1997, at the time she discharged Geen, Droessler did not have any belief that Geen should be assessed an occurrence for an absence on January 23, 1997. Droessler terminated Geen because his absence on January 24, 1997 had not been addressed by any medical documentation and was thus clearly an absence for which an "occurrence" should be assessed.

21. Even if the information from Dr. Hansen had indicated that Geen had been unable for medical reasons to work on January 24, 1997, and even if the information from Dr. Hansen had been considered by Stoughton to establish that all of Geen's most recent consecutive absence days (i.e., January 24, 27 and 28) had been caused by the same condition and qualified for a medical leave, that period of absence would still have resulted in Geen being assessed one "occurrence" under Stoughton's "no-fault" attendance policy - which would have brought his balance of "occurrences" to 6.5, above the point at which discharge was called for.

22. The only ways that Stoughton could have avoided the necessity of discharging Geen in the application of its "no-fault" attendance policy, would have been to either treat the two recent periods of absence (12/12/96 - 1/7/97, and 1/24/97 - 1/30/97), as having been only one period of absence, so that only one "occurrence" would be assessed, or treat one or both of those periods as FMLA leaves, so that "occurrences" would not be assessed for them.

23. At the time he was discharged, Geen stated that his doctor needed additional time to evaluate him before he could bring in more medical documentation, and he was told about his options for appealing to the Attendance Review Board. Droessler told him that he had three working days from that date (January 31) to write a letter to the company's Attendance Review Board in order to try to reverse the assessment of the occurrence. She told him he could submit medical documentation to the Board.

24. On Wednesday, February 5, 1997, the Attendance Review Board received an appeal from Geen in which he stated that he had been having trouble with migraine headaches with dizziness and was on medicine for depression, had been seen by several different doctors who had not come up with a diagnosis, and was having his primary physician, Dr. Hansen, evaluating his headaches. Geen did not submit any medical documentation to the Attendance Review Board with his letter of appeal

25. On February 7, 1997, Geen had a follow-up exam with Dr. Hansen. Dr. Hansen noted that stopping Paxil made no difference in the frequency of his headaches and that his depression was recurring. He resumed Geen's prescription for Paxil and started him on Adalat for his headaches. Geen did not submit any documentation to the Attendance Review Board about his February 7 visit with Dr. Hansen, nor did he ask Dr. Hansen at that time to complete the forms necessary to establish that his absence would qualify for FMLA leave. Geen did not submit any such information to the Attendance Review Board or anyone else at Stoughton, at any time thereafter.

26. By a memo dated February 21, 1997, the Attendance Review Board rejected Geen's appeal. The Attendance Review Board did so because by that time Stoughton had come to believe that Geen had been absent without notice or excuse on January 23, 1997, and that he would properly be assessed an occurrence for that absence which would put his "occurrence" balance at 6.5. However, even if the Attendance Review Board had viewed Geen's absence on January 23 as not warranting assessment of an "occurrence," his absence from January 24 - January 30 would have been found to warrant assessment of at least one occurrence, as Geen had not submitted anything establishing that his absence during that period, or his absence during the period from December 12, 1996 through January 7, 1997, would qualify for FMLA leave.

27. Geen's periods of absence from December 12, 1997 through January 7, 1997 and from January 24 through January 30, 1997 were both caused by his experiencing episodes of migraine headaches. During his headaches Geen became dizzy, had problems with his vision and trouble walking, and as a result was unable to perform the primary function of his job, which was to install floors in truck trailers by using a power tool called a floor drill. Geen's condition of periodically suffering from migraine headaches was an impairment of indefinite duration that limited his capacity to perform his job.

Based on the Findings of Fact made above, the commission makes the following:

CONCLUSIONS OF LAW

1. Complainant Douglas Scott Geen is an employe within the meaning of the Wisconsin Fair Employment Act.

2. Respondent Stoughton Trailers, Inc. is an employer within the meaning of the Wisconsin Fair Employment Act.

3. Complainant is an individual with a disability within the meaning of Wis. Stat. 111.32 (8).

4. Complainant's disability (migraine headaches) was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment with Respondent within the meaning of Wis. Stat. 111.34 (2)(a).

5. Respondent did not refuse to reasonably accommodate Complainant's disability within the meaning of Wis. Stat. 111.34 (1)(a).

6. Respondent did not discriminate against Complainant because of disability within the meaning of Wis. Stat. 111.34 when it terminated his employment.

Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:

ORDER

The complaint in this matter is dismissed.

Dated and mailed August 31, 2000
geendou.rrr : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case arises out of the discharge of Douglas Scott Geen, an assembler at Stoughton Trailers. He was discharged as a result of application of Stoughton Trailers' attendance policy, which prescribes discharge for a certain level of "occurrences" of absence from work. The disability discrimination allegation arises because of the fact that some of the absences for which Geen ended up being charged "occurrences" were a result of Geen's diagnosed medical problems, including migraines. It is not disputed that Geen's migraines were a disability within the meaning of the WFEA, or that Stoughton Trailers, Inc. was aware that Geen was experiencing migraines at the time the discharge decision was made. (1)

The Complainant advances two theories supporting a finding of discrimination. One is, in effect, that the Respondent engaged in invidious discrimination, discharging him because of hostility towards him based on his disability. Under this theory, Complainant argues that Respondent's asserted reasons (concerning the application of the Respondent's absenteeism policy for "occurrences" of absence) were actually and literally pretexts for discrimination, i.e., something that was not true and that not even the Respondent believed in good faith. See, Complainant's Brief To LIRC, Part II. A., p. 10. The other theory is, that even if the Respondent actually believed in good faith that it was merely applying its absenteeism policy in a fair and neutral fashion and without hostility against Complainant because of disability, there was still discrimination because the last two "occurrences" relied on by Respondent were caused by Complainant's disability. To take adverse employment action against an employe because of an absence caused by a disability, the Complainant argues, is the same as taking adverse employment action against the employe because of the disability. Complainant concedes that he cannot perform his job when suffering from migraines, and does not appear to dispute the ALJ's holding that his disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment; he argues instead that Respondent failed to provide "reasonable accommodation" for his disability. Complainant's Brief To LIRC, Part III, pp. 25 ff.

Respondent makes a number of arguments about the factual details on which it develops theories about what reasons it could have relied on for making the challenged decision. However, the more significant part of its argument (in the commission's view) is its theory that "[s]imply because Geen missed work due to his disability, and some of those absences led to him accumulating enough occurrences to be fired, does not mean that Stoughton terminated him because of his disability, or that Stoughton's legitimate reason for firing him was a pretext for discrimination." Respondent's Brief to LIRC, pp. 10-11. Respondent argues in support of the ALJ's holding that Geen's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment, and it disputes the conclusion that it failed to comply with the requirement that it provide "reasonable accommodation" for persons with disabilities. Respondent's Brief to LIRC, Parts IV, V, pp. 10-11.

Like the ALJ, the commission agrees that Geen did submit a request for a vacation day on January 23, 1997 and was thus not absent without notice and permission on that day. In its consultation with the ALJ concerning his credibility impressions, the ALJ indicated that he believed that the Complainant's testimony and that of his witnesses was credible on that issue. The commission sees no reason to disagree with this assessment of witness credibility.

Also like the ALJ, (2)   the commission does not agree with the Complainant's theory that this case involved bad intent and invidious discrimination because of hostility towards Complainant because of his disability. The commission has considered the Complainant's arguments on this point but does not find them persuasive. It does not believe that there is substantial evidence supporting a conclusion that Stoughton was motivated by bias against Geen because of his disability. Instead, this is a case involving an employer's attempts to apply a general, across-the-board attendance policy to a set of facts that happened to include absence(s) arising from a disability. The significant issue in this case is the one presented by the Complainant's second theory.

Finally, the commission agrees with the ALJ's findings and conclusions that Geen was absent during the periods from December 12, 1996 through January 7, 1997, and January 24, 1997 through January 30, 1997, because of his disability, a migraine headache condition.

Termination "because of" disability -

It is clear that Geen was terminated because of the application of Stoughton's "no-fault" attendance policy. In addition, as the ALJ found and the commission agrees, 2 of the 6.5 "occurrences" which resulted in Geen's discharge pursuant to the "no-fault" attendance policy were caused by periods of absence caused by Geen's disability. However, the parties do not agree on whether it is appropriate to say, in these circumstances, that Geen was discharged because of his disability.

Under Stoughton's "no-fault" attendance policy, if absences result in the assessment of "occurrences," the order in which absences for various reasons have occurred is not significant. The policy merely accumulates the number of occurrences. That means, that the same result would have occurred here if the order of the events had been different, i.e., if Geen had been assessed 2 "occurrences" for absences caused by his disability, and had then had other, subsequent absences not caused by his disability which eventually resulted in the total of his "occurrences" reaching or exceeding 6. Under Stoughton's policy, in which "occurrences" are extinguished only at the rate of 1 per 60 consecutive days without an "occurrence," it would be conceivable that a person could accumulate 2 "occurrences" for absences caused by a disability, and then be faced with discharge for accumulation of another 4 "occurrences" unconnected with the disability, many months later. The commission considers that there is a serious question as to whether it would be reasonable to say, that such a termination would be "because of" the person's disability. Therefore, there is an equally serious question of whether it is reasonable to say that a termination is "because of" disability when it results from accumulation of 6 "occurrences" and the last 2, rather than the first 2, are caused by the disability.

In Gordon v. Good Samaritan Medical Center (LIRC, 4/26/88), the commission endorsed an analysis (contained in the Hearing Examiner's decision, which was affirmed) that included these observations:

"[I]t is clear from the record that the Respondent's termination of the Complainant was based on a record of absences which included some absences known to the Respondent to be attributable to [Complainant's handicapping] heart problem. Thus, in some sense, it can be said that the . . . heart condition was part of the reason that the Respondent terminated her.

"This, however, oversimplifies the matter greatly. It is hard to arrive at the conclusion that there was `discrimination because of handicap' when what in fact happened was that the Respondent applied to the Complainant exactly the same policy and standard it applied to all other employes, handicapped or not. In the Respondent's scheme, all absences and tardiness, whether caused by physical problems or not, and whether the physical problems were related to conditions which would be found to be handicaps or caused by conditions which would not be found to be handicaps, were lumped together and treated the same. It is difficult to find in this situation that there is differential or disparate treatment of handicapped persons because of their handicaps."

In Gee v. ASAA Technology, Inc. (LIRC, 1/15/93), the commission again confronted the questions raised by the application of a "no-fault" attendance policy to absences caused by a condition constituting a disability. In Gee, absences caused by a wrist problem and the need for surgery on it led to the Complainant accumulating sufficient points to be terminated. The commission stated, in its Memorandum Opinion,

"Respondent argues, citing Gordon v. Good Samaritan Medical Center (LIRC, April 26, 1988), that it is not discrimination to apply minimum uniform attendance requirements to persons whose handicaps may cause them to miss work. That is true . . . [i]f a handicap has caused an employe to fall short of a uniformly-applied policy of minimum attendance standards, an employer may apply those standards. Gordon, supra."

The commission considers it to be obvious, that at some point the application of a "no-fault" attendance policy to a person who is experiencing absences caused by a disability, will constitute taking action against that person "because of" the disability. (3) However, it must be equally obvious, that at some other point(s) the mere presence of some disability-caused absences in an overall, accumulated record of absences will not be significant enough to justify the conclusion that adverse action pursuant to a "no- fault" attendance policy is taken "because of" disability. As Complainant notes, there is no bright-line rule as to where these points fall. See, Complainant's Brief To LIRC, p. 19.

In the particular factual circumstances of this case, the commission is reluctant to hold that the termination was "because of" Geen's disability. By December 1996, Geen had accumulated 4.5 "occurrences" under Stoughton's "no-fault" attendance policy which provides for termination at 6 occurrences, without his disability having anything to do with it. He was, in short, three-quarters of the way to being fired already. His eventual termination was, in that sense, much more "because of" these previous non-disability-related absences, than of the migraine-caused absences in December 1996 and January 1997.

In any event, for the reasons which are discussed below, the question of whether Geen was terminated "because of" disability is not the only consideration in resolving this case.

Reasonable accommodation of Geen's disability -

Even if Geen was terminated "because of" his disability within the meaning of the WFEA, that does not end the inquiry into whether there has been a violation of the Act. While the Fair Employment Act makes it unlawful for an employer to discriminate on the basis of disability, it also provides in Wis. Stat. 111.34 (2)(a) that it is not employment discrimination because of disability to terminate (or take various other employment actions against) a person because of disability if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that person's employment. The ALJ found that Geen's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment. The commission agrees. The important question is therefore whether Stoughton violated Wis. Stat. 111.34 (1)(b), which provides that discrimination because of disability includes

[r]efusing to reasonably accommodate an employe's or prospective employe's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business.

The commission agrees with the arguments made by Stoughton, that it offered Geen a reasonable accommodation. First, Stoughton gave Geen the opportunity to avoid incurring an "occurrence" at all in situations in which he was on the job and became unable to work due to migraine problems, by allowing him stop working or go to the nurse's station. Second, and most importantly in the commission's view, Stoughton gave Geen the opportunity to avoid incurring an "occurrence" for all situations in which he was absent from work for periods of time attributable to his migraine condition, by simply taking FMLA leave.

Geen was repeatedly told of his option of taking FMLA leave, and there is no reason to believe that he was unaware of it or of what he needed to do. (4)   It is undisputed, though, that Geen never took advantage of this opportunity. This is thus not the type of situation addressed by the Court of Appeals' holding in Target Stores v. LIRC and Crivello, 217 Wis.2d 1, 576 N.W. 2d 545 (Ct. App. 1998), that where the employer knows what type of accommodation the employe requires it is reasonable to expect the employer to offer the accommodation even in the absence of a specific request from the employe, because the accommodation of treating the absence as a "non-occurrence" FMLA leave requires the employe to provide certain medical information. An employer does not fail to reasonably accommodate a disability by enforcing attendance standards where the employe refuses to provide it with medical information establishing the need to overlook those attendance standards. See, Carter v. Milwaukee Bd. of School Directors (LIRC, 08/16/99); see also, Taylor v. Principal Financial Group, 93 F.3d 155, 5 AD Cases 1653 (5th Cir. 1996).

The ALJ also seems to have concluded that Stoughton's failure to treat Geen's two separate periods of absence (12/12/96-1/7/97, and 1/24/97-1/28-97), as having been only one period of absence for purposes of assessing an occurrence, was a failure to accommodate within the meaning of the Act.  However, as Respondent notes in its brief, if an employer offers an accommodation which effectively eliminates the conflict between the handicapped employe's abilities and the job requirements, and which reasonably preserves the affected employe's employment status, the accommodation requirement has been satisfied. See, Norton v. City of Kenosha (LIRC, 03/16/94), Owen v. American Packaging Co. (LIRC, 02/01/91).

Conclusion -

Complainant Douglas Geen was terminated pursuant to the "no-fault" attendance policy followed by Respondent Stoughton Trailer, because of an accumulation of periods of absence from work. Although most of the "occurrences" of absence which resulted in his termination were not caused by a disability, the last two were. If it is considered that he was for this reason terminated "because of" his disability, then it must also be considered that his disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment, because it prevented him from meeting the reasonable and uniformly applied expectations of his employer that all employes have a minimum level of regularity in attendance at work. Respondent provided a reasonable accommodation which would have allowed Geen to continue his employment notwithstanding the fact that his disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment, in that it provided him with the opportunity to avoid being assessed "occurrences" for his disability-caused periods of absence by filling out FMLA leave paperwork. Geen's termination was not the result of Respondent's failure to provide a reasonable accommodation, but of Geen's failure to avail himself of it. For these reasons, the commission has concluded that there was no violation of the WFEA and that the complaint should therefore be dismissed.

NOTE: As is indicated above, the commission consulted with the ALJ to obtain the benefit of his impressions as to credibility of witnesses. The ALJ indicated that he found the Complainant and his witnesses generally credible on those points as to which there were significant disputes of fact. The commission's reversal of the ALJ is not based on disagreement with his assessments of credibility, but rather on different views on the application of the governing legal standards to the facts of this case.

cc: 
Attorney Amy O. Bruchs
Attorney Paul F. X. Schwartz


Appealed to Circuit Court. Reversed August 9, 2001.  Appealed (by Stoughton Trailers) to Court of Appeals. Circuit Court decision modified and affirmed as modified, October 10, 2002, and case remanded to LIRC, sub nom. Geen v. LIRC and Stoughton Trailers, 2002 WI App 269, 654 N.W.2d 1. Petition for Review denied January 21, 2003. LIRC decision on remand  issued September 11, 2003.

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Footnotes:

(1)( Back ) See, Respondent's Brief to LIRC, pp. 8, 10.

(2)( Back ) It is notable that the ALJ did not make any findings of fact consistent with the Complainant's theory of invidious discrimination. There is nothing which suggests that he found any persuasive evidence of bad faith or bad intent on the part of the employer; his decision was clearly the result of his factual finding that Respondent terminated Complainant because of his absences combined with his legal conclusion that since the absences were caused by the disability the termination was in part "because of" the disability. See, Finding of Fact No. 29, Conclusion of Law No. 3. The ALJ also expressly found that Complainant's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment; his ultimate conclusion that there was a violation of the WFEA was premised on his findings and conclusions that Respondent could have reasonably accommodated Complainant by treating the two periods of absence (December 12 - January 7 and January 24 - January 28) as only one "occurrence." See, Finding of Fact No. 31, Conclusion of Law No. 4.

(3)( Back ) The commission has issued decisions in which adverse action taken against an employe because of their accumulated absences caused by disability was treated as an adverse action taken because of the disability. See, Janocik v. Heiser Chevrolet (LIRC, 11/21/94).

(4)( Back ) It is for this reason, that the commission did not agree with the ALJ's views concerning the significance of Stoughton's failure to counsel Geen about the importance of meeting the company's expectations for attendance after he was assessed an "occurrence" which brought his balance to 5.5.