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


LEROY L FIELDS, JR, Complainant

CARDINAL TG CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702574, EEOC Case No. 26G971543


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:

FINDINGS OF FACT

1. The respondent, Cardinal TG (hereinafter "respondent"), is a manufacturer of tempered glass. The respondent is owned by the Cardinal IG corporation, which owns approximately sixteen different glass plants around the United States.

2. The production process for tempered glass at the respondent's plant is essentially as follows: First, the glass is delivered to the facility, where it is unloaded with a forklift, relocated, and readied to be fed onto the production line. Some of the glass is cut with a "circle-top cutter," a process which entails cutting shapes from raw glass using a sander type machine that grinds the edges off the glass. Other glass is subject to "hole punching," whereby a small hole is drilled into the glass and the piece removed. The glass is then loaded onto the production line, where it goes through a grinder, a washer, and the "quench furnace," where high-pressure air is applied to the glass to temper and strengthen it. The glass then goes through quality control, then to the "pack end," where it is unloaded onto pallets and packed onto crates. After this, a worker called a "floater" enters the pallet into the computer and locates it in the warehouse area where a "shipper" uses a forklift to put the glass in a truck and prepares bills that show where it is going. Other production jobs at the respondent's plant include inventory, "wheel dresser," a job which involves regrooving the wheels that grind the glass, and "slitter," which involves cutting glass into smaller sizes for later use. Workers involved in the production process are known as "glass handlers." The respondent runs two production lines on two shifts. As of the complainant's last day of work for the respondent, there were 26 or more glass handlers on each shift. By the date of the hearing this number had increased to about 34 glass handlers per shift.

3. The complainant, Leroy Fields, Jr., (hereinafter "complainant,") began working for the respondent in September of 1991. The complainant was hired to work as a glass handler. He had no written job description, but worked primarily on "load end" and "pack end," loading and unloading glass from the line. The complainant was also trained to perform quality control and to work as a quench operator and as a floater. He worked on the "B" shift, a twelve-hour night shift.

4. In February of 1992 the complainant sustained a back injury in a car accident. He was off of work until May, at which point he returned with a doctor's recommendation that he alter his job duties every two hours. The respondent accommodated the complainant temporarily by assigning him to work in the quench area and having him help unload glass. The complainant's condition did not improve, and in August of 1992 he submitted a doctor's statement indicating that he should not lift over 35 pounds and should avoid frequent twisting for a period of six months. The respondent then placed the complainant on light duty and assigned him to the quench and quality control areas. The complainant remained in this assignment for approximately two years. He also helped out as a floater and occasionally did loading, provided there was another person available to help him.

5. In June of 1994 a load end job opened up on the "C" shift, a day shift, and the complainant decided to try it. However, he soon began to experience back pain and determined that he was unable to stay on the job. The complainant provided the respondent with a note from his orthopedic doctor, Dr. Carlisle, stating that he should continue to work within his current restrictions and that he should not load glass. At that point, the respondent assigned the complainant to wheel dressing. The complainant also floated or did odd jobs as needed, such as welding and small repairs.

6. In November of 1994 the complainant returned to Dr. Carlisle, who prepared a note indicating that the complainant's work limitations included avoiding repeated bending, twisting and lifting, and that he should do no lifting over 25 pounds.

7. Sometime during 1995 the respondent moved the complainant back to the quench and quality control area.

8. During the complainant's employment the respondent undertook a variety of measures aimed at lessening the number of repetitive motion injuries to its workers. The respondent implemented mandatory stretching prior to shifts, built extensions on carts and readjusted them to better fit employees, and instituted a practice of requiring two workers to load or unload glass weighing more than 30 pounds. The respondent also brought in two ergonomics consultants to conduct studies. The ergonomic studies recommended job rotation, but did not specify any particular rotation schedule.

9. In February of 1997 Marshall Bosworth, the plant manager, decided to implement a rotation schedule whereby all employees would be required to perform and rotate through all of the glass-handling functions. Mr. Bosworth made the decision to eliminate light-duty positions at this time.

10. On March 2, 1997, the complainant met with Dale Stickney, the "C" shift supervisor, to discuss the new rotation system. The complainant was informed that he would need to have his work restrictions lifted if he was to remain in the job. Until this point the complainant had presumed that the new rotation schedule would not apply to him.

11. In order to minimize the risk of injury for workers loading or unloading glass on the line, those workers must take an hour off after each hour that they load or unload glass. With a total of 26 or more workers, approximately eight of whom were lifting glass at any given time, there were ample workers to effectuate such a rotation schedule, even if one were to be taken completely out of the rotation. The complainant could have been permanently assigned to the quench area and never rotated to a glass loading position, and there would still have been enough people available so that other workers could rotate an hour on and an hour off when loading or unloading glass.

12. On March 17, 1997, the complainant went to see his regular physician, Dr. Erickson. Dr. Erickson lifted the complainant's permanent restrictions and permitted him to return to work under a work-hardening program that would allow him to gradually load and unload glass until he was able to work with no restrictions whatsoever. The complainant attempted to do this work for a few days, but found it too painful.

13. On April 3, 1997, the complainant went to Dr. Carlisle, who concluded that he should avoid frequent and prolonged twisting. Dr. Carlisle issued a permanent work restriction to that effect, which the complainant provided to the respondent the following day.

14. On April 7, 1997, the respondent gave the complainant a letter stating that he was being placed on paid leave until April 30 and had until that date to suggest accommodations that would permit him to perform his job given his restrictions.

15. On April 14, 1997, the complainant's attorney wrote a letter to the respondent inquiring, among other things, whether positions were available at the Cardinal IG plant, which makes insulated glass and is located across the street from the Cardinal TG plant, and which positions might be considered for the complainant. The respondent replied that the IG facility is operated independently of the TG facility, and that the complainant could obtain an application for Cardinal IG if he was interested.

16. The Cardinal IG and TG plants are owned by the same corporation. In 1990 the respondent underwent a layoff at the Cardinal IG plant and, as a result, transferred employees from the IG plant to the TG plant.

17. On April 28, 1997, the complainant's attorney sent another letter to the respondent, in which she indicated that the complainant knew of no mechanical device that would allow him to perform the duties in question, but requested that he be permitted to rotate into all of the positions except for load end or pack end. The complainant's attorney suggested that this could be accomplished by permitting the complainant to work shorter shifts so as to avoid those assignments, or by planning a smaller rotation for the complainant. The complainant's attorney also stated that she was aware of another employee who had been able to transfer to the respondent's IG plant, and reiterated her suggestion that perhaps the complainant could be transferred to Cardinal IG by way of accommodation.

18. On April 30, 1997, the respondent's attorney responded in a letter stating that the complainant was considered a "glass handler" and that each glass handler must rotate through all of the functions of the position. The respondent indicated that it did not believe it was required to permit the complainant not to perform any of the essential functions of the position and that, if it did so, all employees with medical certification could avoid performing those functions. It also reiterated its assertion that the complainant was free to apply for a job at the IG plant.

19. The complainant's employment with the respondent was terminated when his leave of absence ended on April 30, 1997.

20. The complainant did subsequently apply for a job at Cardinal IG, expressing an interest in any available position, but received no response to his application.

21. The respondent's refusal to permanently assign the complainant to the quench furnace or other position he was physically able to perform, or to place him in a more limited rotation that did not include the loading or unloading of glass constituted a denial of a reasonable accommodation which the respondent could have provided without hardship.

22. The respondent's refusal to consider a transfer to the IG facility constituted a denial of a reasonable accommodation which the respondent could have provided without hardship.

23. The complainant earned $28,742.14 from the respondent in 1996. Prior to his discharge in 1997, the complainant earned $9,945 from the respondent for that year.

24. With reasonable diligence, the complainant should have been able to find a job paying at least nine dollars an hour by the end of six months from his discharge by the respondent. The complainant made some job search efforts, but did not find another job in the six months following his discharge from the respondent. He received $7,332 in unemployment compensation benefits in the months following his discharge.

25. In the fall of 1997 the complainant attended taxidermy school and started a taxidermy business. The complainant showed a business loss of $3,483 for 1997 and a profit of $7,668.20 for 1998. He projected that his earnings for 1999 would be similar to his earnings in 1998.

Based on the FINDINGS OF FACT made above, the commission makes the following:

CONCLUSIONS OF LAW

1. That the complainant is an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.

2. That the respondent discriminated against the complainant based on his disability, within the meaning of the Wisconsin Fair Employment Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:

ORDER

1. That the respondent shall cease and desist from discriminating against the complainant because of his disability.

2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position he held prior to his discharge at either the Cardinal TG or Cardinal IG facility. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond. Upon the complainant's acceptance of such position, the respondent shall afford him all seniority and benefits, if any, to which he would be entitled but for the respondent's unlawful discrimination, including sick leave and vacation credits.

3. That the respondent shall make the complainant whole for all losses in pay the complainant suffered by reason of its unlawful conduct by paying the complainant the sum he would have earned as an employee from the date of termination until such time as the complainant resumes employment with the respondent or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for the period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Beginning May 1, 1998 the complainant's back pay shall be reduced by the greater of the complainant's earnings in his self-employment or other employment or the $9 an hour which he could have earned after a diligent job search. Any unemployment compensation or welfare benefits received by the complainant shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Insurance Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.

4. That the respondent shall pay the complainant's reasonable attorney's fees in the amount of $30,428.00 and costs in the amount of $4,887.29, for a total of $35,319.29 in reasonable attorney's fees and costs associated with this matter. A check in the amount of $35,319.29 shall be made payable jointly to the complainant and to Attorney Roger L. Imes and delivered to Mr. Imes.

5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action 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. The statutes 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. See Wis. Stat. 111.395, 103.005(11) and (12).

Dated and mailed February 16, 2001
fieldle.rrr : 164 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Merits

The complainant's burden in a disability discrimination case under the Wisconsin Fair Employment Act (hereinafter "Act"), is to show that he is disabled within the meaning of the Act and that there was an adverse employment action based upon that disability. Wisconsin Statute 111.32(8) defines an individual with a disability as one 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. Further, the inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis. 2d 706, 350 N.W.2d 120 (1984).

The complainant in this case has an impairment, a herniated disc, which limits his capacity to work in that he cannot perform all of the functions of the glass handler job due to his inability to engage in frequent twisting. Moreover, the evidence indicates that the respondent perceived the complainant as having a disability. At least one document in the respondent's possession notified it that the complainant was diagnosed with a herniated disc, and the "C" shift supervisor, Dale Stickney, specifically testified that he perceived the complainant as being disabled. In addition, Marshall Bosworth, the plant manager, acknowledged that he knew the complainant had significant work restrictions of a permanent nature.

In its petition for commission review the respondent argues for the first time that the complainant did not meet his burden of proving that he is an individual with a disability. The respondent's argument is that the complainant is only precluded from performing one specific job and that, in order to be considered disabled, a person must be precluded from performing an entire category of jobs. However, the respondent's argument is based upon an interpretation of federal law and is contrary to the standard the courts and commission apply when interpreting the Act. As stated above, the "limits the capacity to work" test refers to the ability to perform the particular job in question, and does not require that an individual be precluded from performing an entire category of jobs. Given the complainant's inability to perform all of the functions of the glass handler job, and considering the supervisor's perception of him as an individual with a disability, the commission is satisfied that the complainant met his burden of establishing that he is an individual with a disability, within the meaning of the Act.

Concluding that the complainant qualifies as an individual with a disability, it is also evident that the complainant was terminated from his employment because of that disability. The complainant's disability rendered him unable to perform glass loading and unloading functions, and the respondent determined that, because he could not perform those functions, the complainant could no longer remain in its employ.

The complainant having met his burden, the burden then shifts to the respondent to demonstrate both that the handicap was reasonably related to the complainant's ability to adequately perform the job-related responsibilities of his employment and that accommodation of his disability would pose a hardship on its business. See Wis. Stat. 111.34. The complainant has contended that the respondent did not meet its initial burden, since his disability was not reasonably related to the job of quench operator, a function which he could perform without accommodation. However, while the evidence does demonstrate that glass loading and unloading was not a part of the complainant's job prior to his discharge, once the respondent made the decision that all workers would be required to rotate through all of the glass handling functions, including the loading and unloading of glass, the complainant became unable to undertake all of the job-related responsibilities of his employment. The commission is therefore satisfied that, as of the date of his discharge, the complainant's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment.

The question to decide, then, is whether the respondent refused to provide the complainant with a reasonable accommodation which could have been provided without hardship to it. The complainant proposed two potential accommodations: an exemption from glass loading and unloading duties (1)  or a transfer to the Cardinal IG plant. With respect to the former, the respondent maintains that the loading and unloading function was one of the most central parts of the job, and argues that it was not required to restructure an essential job function. The respondent's argument is grounded in federal law, as reflected in Equal Employment Opportunity Commission (hereinafter "EEOC") regulations, which state, in relevant part:

"An employer or other covered entity may restructure a job by reallocating or redistributing nonessential, marginal job functions. . . .

"An employer or other covered entity is not required to reallocate essential functions. The essential functions are by definition those that the individual would have to perform, with or without reasonable accommodation, in order to be considered qualified for the position. . . ."

29 C.F.R. Part 1630

However, the instant case does not involve an interpretation of the Americans with Disabilities Act (hereinafter "ADA"), but of the Wisconsin Fair Employment Act, which contains no reference to "essential job functions" and no injunction against reallocating any specific job functions. Indeed, the Wisconsin Court of Appeals has specifically held that the Act should be broadly construed such that even the transfer of a worker who can no longer perform his job to another position might be a reasonable accommodation. McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 2d 830 (Ct. App. 1988). The McMullen case stands for the proposition that it is inappropriate to conclude as a matter of law that any particular kind of action is not required as an accommodation and that the resolution of any case depends upon whether the facts show that the accommodation would be reasonable and would not work a hardship on the employer. Gartner v. Hilldale, Inc. (LIRC, May 12, 1992). Thus, it cannot be said that a job-related responsibility, even an "essential" one, need never be restructured or removed by way of reasonable accommodation.

The commission further notes that, even if it were inclined to import something like the federal "essential functions" test for purposes of applying the Act, the unique facts of this case would weigh against doing so. Here, the respondent took a worker who was able to perform his job and had done so for many years without accommodation and, being fully aware of his physical limitations, restructured the job such that he could no longer perform it. (2)   These facts distinguish the instant case from the more typical one in which a disabled individual applies for a job which he is physically unable to perform or a current employee finds himself, due to his own changing circumstances, suddenly unable to perform his assigned duties. While there might be circumstances when the commission would consider it unreasonable to require a respondent to restructure critical job functions by way of disability accommodation, the facts in this case present a compelling argument for such a restructuring.

Concluding that restructuring the job to exempt the complainant from loading or unloading glass would be a reasonable accommodation, the question to resolve is whether to do so would pose a hardship to the respondent's business. The respondent argues that to accommodate the complainant in this manner, either by assigning him permanently to the quench operation or other operation he was able to perform or by placing him in a smaller and more limited rotation, would have increased the risk of repetitive motion injury for other workers, while having an adverse effect on morale, reducing flexibility, and lowering productivity. The commission has considered these arguments, but does not find them persuasive.

Regarding repetitive motion injuries, the respondent states that loading and unloading glass constitutes the greatest percentage of time spent and is the greatest source of repetitive motion injuries. It maintains that permitting even one person to be exempt from this function would increase the risk of injury for everyone else. However, the respondent failed to present any competent evidence establishing that this was the case. Marshall Bosworth, the plant manager, testified that he made an independent decision to implement full rotation based upon two ergonomic reports which generally state that job rotation is desirable, but which do not indicate what type of rotation would be most beneficial. Mr. Bosworth explained that his theory, which he based upon common mathematics, was that taking even one person out of rotation would expose other workers to an increased risk of repetitive motion injuries. He acknowledged, however, that he did not talk to any ergonomic expert about his rotation plan and that he has no information to show that removing one individual from the full rotation would pose anything other than an insignificant increase in risk to other workers.

While Mr. Bosworth's intuition may dictate that the less one does a dangerous job the lower one's risk of injury, the effect of removing a single person from a large- scale rotation is not something that a lay person has the expertise to evaluate. The respondent failed to offer any expert testimony on this point, and the commission does not believe it has met its burden of proving hardship through the plant manager's testimony alone. Moreover, the commission cannot ignore the fact that the complainant presented his own expert witness, whose testimony suggests that removing the complainant from the rotation would not lead to increased repetitive motion injuries for other workers. The complainant's expert, Dr. Kernozck, a professor of physical therapy at the UW-Wisconsin La Crosse with expertise in the field of biomechanics of human movement, indicated that he reviewed the ergonomic studies and toured the respondent's facility, after which he concluded that the greatest benefit from rotation would be realized by giving workers one hour on and one hour off of the glass loading duties, but that more than an hour off would not necessarily decrease their risk. Dr. Kernozck explained that, while it would be more stressful to load glass an hour on and an hour off than never to work on the line at all, if a worker were to take three months off from loading glass, he would be at exactly the same risk for injury when he returned as he was when he left. According to Dr. Kernozck, as long as workers do not load glass for more than an hour at a time, with an hour off between each glass loading shift, they are realizing the full benefit of job rotation.

While the respondent insists that all glass handlers must rotate through every job, its actual practice with respect to the load end and pack end functions basically comports with the recommendation of the complainant's expert. The respondent rotates workers one hour on and one hour off and, according to the testimony of supervisor Stickney, it does not take into account whether a worker loaded or unloaded glass the previous day, but considers only whether he has exceeded the hour on hour off standard in any given day. Thus, it appears that the respondent is satisfied to permit workers to load glass half of the time. With a total of twenty- six or more workers, approximately eight of whom are loading or unloading glass at any given time, there are clearly ample bodies to effectuate the optimal rotation described by the complainant's expert, and there is no reason to believe that taking the complainant out of rotation would place anyone else at greater risk.

Looking specifically at the quench operator position, the evidence indicates that the quench/quality control workers rotate every other day to jobs as glass loaders and that, on the days they load glass, they do so every other hour. Thus, the quench and quality control people load glass about twenty-five percent of the time. Mr. Stickney testified that there are five or six quench/quality control people, and that any time the line is running there is at least one person running the quench, one to two people in quality control, plus two people for every load or pack end position. Mr. Stickney acknowledged that, even if the complainant were permanently assigned to the quench, there would still be enough people so that everybody could rotate an hour on and an hour off. Consequently, the commission sees no reason to conclude that permitting the complainant to be exempt from the loading and unloading functions would have the effect of increasing other workers' chances of repetitive motion injuries.

In addition to its argument that removing the complainant from the rotation would create a hardship by putting other workers at increased risk of physical harm, the respondent also contends that to do so would be harmful to morale. On this point Mr. Bosworth testified that, even if it developed that having twenty-five people rotate instead of twenty-six made no difference in risk to the people rotating, he would still be unwilling to take one person out of rotation because this would cause attitude problems among other workers. In support of this assertion, Mr. Bosworth and Mr. Stickney testified that other employees questioned why the complainant did not have to participate in loading and unloading glass. However, the respondent's morale argument is undercut by Mr. Stickney's testimony that very few people are interested in working the quench furnace because it is boring and hot. The commission does not see how it would create a morale problem to permanently assign the complainant to a job that other workers do not want to do. The commission additionally notes that the mere assertion that some workers complained about or questioned the respondent's decision to exempt the complainant from glass loading, unaccompanied by any testimony from the workers in question or other competent evidence of a serious morale problem, cannot be deemed sufficient to meet the respondent's burden of demonstrating that exempting the complainant would result in a hardship to it.

Turning next to the respondent's argument that accommodating the complainant would have an adverse impact on its flexibility, the commission notes that at the hearing the respondent specifically acknowledged that assigning the complainant exclusively to the quench and quality control would not affect the opportunity for others to cross-train. Moreover, there is substantial evidence in the record indicating that not all glass handlers were trained in every position due both to a lack of time and lack of interest in certain jobs. Consequently, the respondent's argument that it would suffer a hardship by way of a loss of flexibility is not a compelling one.

Finally, the respondent maintains that if the complainant worked in the quench all the time a situation might arise where it would have to shut down the line due to a lack of personnel. However, this argument is purely speculative and hypothetical, and the commission sees no reason to believe that any such shut down would be imminent. To the contrary, the respondent acknowledged that up until the time of the complainant's termination the line was never shut down due to a lack of workers, in spite of the complainant's longstanding unavailability to load or unload glass.

For all of the reasons set forth above, the commission is unpersuaded that exempting the complainant from those duties which he was physically unable to perform would not have been reasonable or that the respondent could not have done so without hardship to its business. The commission, therefore, finds that the respondent's refusal to accommodate the complainant in this manner was in violation of the Act.

The commission, like the administrative law judge, also finds unlawful discrimination based on the respondent's refusal to consider transferring the complainant to a different facility. In McMullen v. LIRC, cited above, the court of appeals specifically held that, depending upon the circumstances, transfer to a different position may be a reasonable accommodation for a worker with a disability. However, while the complainant specifically requested a transfer to the respondent's IG facility, which is located across the street from the Cardinal TG plant and is part of the same corporation, the respondent was unwilling to even consider this option. The commission does not believe the respondent met its burden of demonstrating that it would not have been reasonable to transfer the complainant, as he requested, or that to do so would have created a hardship for it.

At the hearing Mr. Bosworth testified that Cardinal TG employees cannot be transferred directly into the Cardinal IG plant, but must resign from their work and apply for a job at Cardinal IG. However, while the respondent may prefer not to transfer employees between plants, Mr. Bosworth did not identify any external or independent impediment to such a transfer, such as a union agreement prohibiting a transfer between plants. Moreover, Mr. Bosworth acknowledged that in at least one instance workers from Cardinal IG were transferred to the TG plant to avoid a lay-off. Given the above, it appears that it is indeed possible for the respondent to transfer employees from one plant to another and, moreover, that there is a precedent for doing so. The respondent did not present any reason to believe that it could not have effectuated a transfer for the complainant in this case, had it wished to do so.

In its petition the respondent argues that the reason it did not consider transferring the complainant was because it has an unwritten policy against such transfers, which it maintains constitutes a legitimate nondiscriminatory reason for its actions. However, a legitimate nondiscriminatory policy does not justify failing to provide a reasonable accommodation where such accommodation can be provided without hardship. Indeed, the Act contemplates that employers may sometimes need to make exceptions to their usual policies in order to provide accommodations to disabled workers. The fact that the respondent may have had a nondiscriminatory policy against transfers--and the commission notes that no evidence of such a policy was presented at the hearing--does not mean it would not have been reasonable to transfer the complainant to the IG facility or that the respondent could not have done so without hardship. To the contrary, and applying McMullen, the commission believes that transferring the complainant to an available position at the Cardinal IG plant, which was located in close proximity to the plant where the complainant customarily worked and to which the complainant could have been transferred without undue expense, would have been a reasonable accommodation which the respondent could have provided without suffering hardship. The commission therefore finds that the respondent's failure to consider such an accommodation was in violation of the law.

Remedies

A. Reinstatement

Even if the commission had not found discrimination with respect to the respondent's failure to remove the complainant from the full job rotation, but had found for the complainant only on the basis of the respondent's failure to consider a transfer to the Cardinal IG facility, it would nonetheless have ordered reinstatement and back pay. While the administrative law judge concluded that the complainant had the burden to demonstrate that a job was available for him at the Cardinal IG plant, the commission has held that, in deciding what remedy is appropriate, uncertainties are resolved against the discriminating employer. See Silvers v. Madison Metropolitan School District (LIRC, July 25, 1986); Jones v. Dy-Dee Wash (LIRC, November 4, 1988). The respondent was clearly in the best position to establish what, if any, jobs were available at the Cardinal IG plant, and the commission does not consider it reasonable to penalize the complainant for the respondent's failure to present evidence on this point.

The respondent did not assert that there were no jobs available at Cardinal IG, but declined to present any evidence regarding the availability of such jobs, relying on its assertion that it was not required to consider a transfer. However, having been confronted with a finding that it was, in fact, required to consider such a transfer, the respondent now asks the commission to infer from the evidence that no jobs would have been available. The evidence does not warrant such an inference. While the respondent suggests that the fact the complainant never received a response to his job application at Cardinal IG indicates there were no openings, the respondent's failure to acknowledge the complainant's job application could signify many things, and it would be pure speculation to find that the reason the complainant received no response to his letter was due to a lack of job openings. The respondent also points out that the complainant presented job advertisements from local newspapers, but that these advertisements did not include any vacancies for Cardinal IG. From this, the commission is asked to draw the inference that there were no positions available. However, there is nothing in the record to establish whether it was the respondent's practice to advertise job openings in the local newspapers and, accordingly, no basis to conclude that the lack of such an advertisement signifies the lack of a job opening. Contrary to the assertions made by the respondent in its petition, there is absolutely no evidence in the record permitting a finding that there were or were not jobs available for the complainant at the Cardinal IG plant. As stated above, the commission considers it fair and appropriate to resolve this uncertainty against the respondent and, as a result, to order the respondent to instate the complainant to the next available position at either the Cardinal IG or TG plant that is substantially equivalent to his former job, and to pay him the back pay to which he is entitled.

B. Back pay

A complainant is presumed to be eligible for back pay from the date of the discharge until the date on which he either returns to work for the respondent or refuses a valid offer of reinstatement. However, the complainant has an obligation to mitigate his damages and, if the respondent can demonstrate that he failed to make a diligent effort to do so, the back pay award may be reduced by the amount the complainant could have earned had he exercised reasonable diligence in seeking new employment. In this case, the respondent presented evidence warranting a conclusion that, by the end of his first six months of unemployment, the complainant should have, with reasonable diligence, been able to secure a job paying at least $9 per hour. (3)   Consequently, the commission considers it equitable to reduce the complainant's back pay by the $9 per hour he could have earned had he exercised due diligence.

The commission does not order such a reduction in the first year, however, because it considers the complainant's actions in enrolling in taxidermy school and setting up his own taxidermy business to have been undertaken in a reasonable effort to mitigate his damages, such that damages should not be reduced during this period of time. Self-employment is an acceptable method of mitigating damages, see Neuendorf Transp. v. LIRC (Dane Co. Cir. Ct., May 7, 1982), and the evidence does not suggest that, at the time the complainant decided to go to taxidermy school and start his own business, he lacked a reasonable expectation that the business could be successful. Nor is there any evidence to indicate that the complainant's efforts to get the business off the ground were inadequate. Consequently, the commission believes that the complainant is eligible for full back pay while he was making reasonable efforts to start up his own business.

The commission, however, does not believe that the complainant should be entitled to full back pay, offset only by his self-employment earnings, during the entire back pay period. In the Neuendorf case, cited above, the court noted that the complainant's business, a tavern, generated substantial interim earnings during the back pay period. Such is not the case for the complainant. To the contrary, the complainant's business showed a net operating loss of $3,483 during its first three months, and a net profit of only $7,688.20 in the following year. Although the commission does not know what the complainant actually earned in 1999, since the hearing was conducted in February of that year, a wage loss summary prepared by the complainant's attorney shows expected annual income for 1999 in the same amount as that earned in the previous year. Assuming the complainant worked full time in his taxidermy business, $7,688.20 in earnings equates to an hourly wage of $3.69, well below the minimum wage. While it might be reasonable to expect a new business to founder in its early days, there comes a point at which the complainant's self-employment efforts are recognized to be failing and can no longer be deemed a reasonable effort to mitigate damages. To do otherwise would put the respondent in the untenable and unfair position of subsidizing the complainant's failing business for a protracted period of time.

In this case, the commission finds that the point at which the complainant's self- employment efforts can no longer be considered reasonable attempts at mitigation occurred after six months. The complainant's income began to pick up after the first three months of his self-employment, during which time he realized no net profits, and his gross receipts for the first quarter of 1998 were $2,255.00. However, at the end of the first six months the complainant had a period when there was no taxidermy work at all, followed by two quarters with no appreciable increase in business revenues. In the third quarter of 1998 the complainant's receipts totaled $2,363.20 and in the fourth quarter his receipts totaled $3,050.00. According to the complainant's attorney's representations, there was no projection that his income would increase in the following year from the amount he earned in 1998. Thus, the evidence indicates that the complainant's self-employment income began to stabilize after the first six months with no reason to assume much future growth, at which point the commission believes the complainant should have recognized he was not going to be able to support himself on his taxidermy business alone and begun to consider other options. Even if it were a reasonable choice for the complainant to continue in the taxidermy business, for purposes of his discrimination claim it is fair to say that he was no longer attempting to mitigate his wage loss and, therefore, cannot expect to pass his continuing wage loss on to the respondent.

Consequently, the commission orders full back pay, minus the usual offsets, for the first six months of the complainant's unemployment, during which time he unsuccessfully sought other work, and then for an additional six months while he made reasonable attempts to establish a new business. Thereafter, the commission reduces the back pay award by the greater of the amount the complainant earned in his self-employment or through other employment he may have obtained subsequent to the hearing or the $9 an hour which he could have earned after a diligent job search.

C. Attorney Fees

The complainant's attorney requested $54,786.75 in fees for his work prior to the petition for review by the commission, and the administrative law judge reduced that fee request by sixty-five percent, awarding $19,175.36. In his decision the administrative law judge indicated that he compared the fee request to the fees requested and granted in two other cases, Olson v. Phillips Plating, et al (LIRC, February 11, 1992) and Muenzenberger v. County of Monroe (LIRC, August 13, 1998), and concluded that, by comparison, the fees requested by the complainant's attorney in this case were excessive.

Both parties are dissatisfied with the administrative law judge's resolution of this matter. First, the respondent argues that the complainant is not eligible for any attorney fees at all, because he is not a prevailing party. This argument rests upon an interpretation of federal law, as contained in 42 U.S.C. 1988, which provides that one is only a "prevailing party" when the actual relief materially alters the legal relationship between the parties by modifying the respondent's behavior in a way that directly benefits the complainant. However, this is not the rule under the Wisconsin Fair Employment Act. Indeed, the Wisconsin Court of Appeals has specifically held that a 1988 analysis is not appropriate under the Act and that a party who proves discrimination on any issue is a prevailing party entitled to costs and attorney fees. See Racine Unified School District v. LIRC, 164 Wis. 2d 567, 610-611, 476 N.W.2d 707 (Ct. App. 1991). Thus, the respondent's argument fails. (4)

Next, the respondent argues that, if fees are awarded, they should be further reduced because they are unreasonable. The respondent's argument rests primarily upon an assertion that much of the work done by the complainant's attorneys was duplicative. The respondent requests a reduction of $12,046.75 in attorney fees related to items in which both of the complainant's attorneys conferred or worked together, all of which the respondent characterizes as duplicative. The administrative law judge denied the respondent's request for such a fee reduction on the ground that the respondent did not assert that it was an inappropriate practice for two or more attorneys to each bill for their time when working on a case together. Although the respondent reiterates its argument in its petition for review, it has still not presented any persuasive reason why the complainant's fees should be further reduced. There is no general rule preventing two attorneys from simultaneously billing for their time and, lacking any specific reason to believe that any of the requested items were unnecessary or unreasonable, the commission is not inclined to order any further fee reduction for duplicative work.

The complainant, on the other hand, argues that he should have received the full $54,786.75 requested. The complainant contends that, in order to test the reasonableness of the number of hours expended by his attorneys, the administrative law judge should have reviewed the attorney's fees charged by the respondent's counsel so that the efforts of both counsel could be measured against each other. This argument is similarly unpersuasive. There is no precedent for comparing the complainant's attorney fees to those of the respondent, and the question of how many hours are reasonably expended on litigation in any given case is not adjudged on that basis. The administrative law judge has experience in evaluating how many hours are reasonably expended on litigation of an equal rights case, and his assessment that the amount of time spent on this matter was excessive is reasonable. The administrative law judge took into account the fact that the parties engaged in discovery, including the taking of depositions, and that there were two separate days of hearing. However, even considering these factors, he concluded that, when comparing this case to other cases involving multiple days of hearing, the fees requested by the complainant's attorneys were excessive. Although the complainant makes the argument that the respondent put up every conceivable roadblock, requiring his attorneys to spend more time on the case, he has not established that the litigation of this case required greater resources than what a party would normally expend, and the commission believes that the fees awarded by the administrative law judge reflected the amount of time reasonably expended.

That said, the commission notes that the administrative law judge's decision was based, at least in part, on his conclusion that the complainant prevailed on only one of two accommodation theories and, further, that his remedy was limited by his failure to prove there was a job available for him at the Cardinal IG plant. Where the commission has rewritten the decision to find in favor of the complainant on both theories, and to order back pay and reinstatement, it concludes that the greater success achieved by the complainant warrants a larger fee award. The commission considers it reasonable to award an additional fifteen percent, resulting in a fifty percent reduction in the fees requested, for a total fee award of $27,393.37 for work up through the issuance of the administrative law judge's decision.

In addition to the attorney fees for his work prior to the issuance of the administrative law judge's decision, the complainant is also entitled to attorney fees in conjunction with the petition for review. The complainant has requested an additional $8,217.25 in attorney fees for this portion of the litigation. In objection to the complainant's fee request, the respondent reiterates its earlier arguments that the complainant's entire fee request should be disallowed on the ground that the complainant was not a "prevailing party" and, further, that many of the requested fees are unreasonable because they are duplicative. These arguments have already been addressed and rejected by the commission, and the commission will not revisit them here.

The respondent also makes the argument that the fee petition should be denied as to all entries for unrelated matters, specifically indicating that the entries for November 15, 1999 and April 5, 2000 are inappropriate and unreasonable to the extent they relate to research regarding federal claims or federal agency filings which are not at issue in the matter before the commission. The November 15 entry is for 0.25 hours of research on the ADA and multiple duties. While this is not an ADA case, it is not inappropriate to look to the federal law for guidance, and research into the ADA can be relevant to Fair Employment Act litigation. Indeed, the respondent's own briefs contain numerous citations to cases involving the ADA. However, the commission disallows this item for a different reason. The research in question was conducted in the time period after all the briefs had already been filed, but before the administrative law judge's decision was issued. The commission can think of no justification to charge the respondent for research on the substantive issues of this case when that research appears to be unrelated either to the proceedings before the administrative law judge or those before the commission.

With respect to the April 5, 2000 entry, the commission assumes the respondent is objecting to that portion of the entry consisting of 0.25 hours annotated "confer with Leroy re: EEOC mediation," and it agrees with the respondent that this particular item should be disallowed as unrelated to the proceeding before the Equal Rights Division.

There are other items not specifically mentioned by the respondent which the commission also believes should be disallowed. For example, the complainant's fee request submitted to the administrative law judge included services rendered through October 6, 1999, while the current fee petition also includes entries for October 4, 5, and 6 of 1999. While these entries are not identical to the ones included in the original fee petition, given the overlap of time the commission is inclined to disallow them as duplicative. The commission also declines to award fees for the work performed on October 7, 8 and 11. The entries for those dates indicate that the complainant's attorneys spent time on the preparation of a letter to the respondent's counsel, meetings with the complainant and attorneys, research on an accommodation issue, and review of a personnel commission decision. None of these items appear to relate to preparation of the complainant's fee request. Indeed, while the fee petition was filed with the administrative law judge on October 11, the only entry that seems to apply to work on that petition is entitled "billing petition," and is dated October 6. Because it is impossible to discern what the October 7, 8 and 11 entries were for, the commission sees no reason why the complainant should be reimbursed for these charges and it disallows them.

The commission also disallows payment for the entries from October 28, 1999 which relate to the preparation of a letter to the administrative law judge requesting an opportunity to respond to the respondent's objections to the fee petition. No responsive submission was contemplated by the administrative law judge, and the complainant's request was properly denied. Further, the commission does not believe entries for November 3, 22, and 30, 1999, should be payable, as they all relate to legal research on the substantive issues of the case. As stated above, substantive research conducted after all the briefs had already been filed, but before the administrative law judge's decision was issued cannot be considered reasonably related to the litigation of this matter either before the administrative law judge or the commission.

Next, the commission disallows those portions of the entries for work performed on January 24-26, 2000, and February 3, 2000, which relate to the filing of a request for reconsideration. The complainant's request for reconsideration was ultimately treated as a petition for review by the division. However, prior to receiving notification that his request for reconsideration was being treated as a petition, the complainant submitted a separate petition for review, which he contended was more exhaustive and included more issues than were raised in the request for reconsideration. Where the complainant failed to prevail in his request for reconsideration, he is not entitled to attorney fees for the time expended on that request. Moreover, because the complainant filed a more comprehensive petition for review before learning the results of his request for reconsideration, the work on the request for reconsideration is regarded as duplicative and unnecessary.

The commission finds an additional item that is not payable on this basis. The complainant's fee request contains an entry for January 24, 2000, which states "JRP Review ERD Decision" and is for 0.5 hours. However, this entry appears to duplicate a second entry for the following day, which states "JRP Review ERD Decision; Confer With Attorney's Herlitzka and Imes" and is for 0.9 hours. It is, therefore, not payable.

Next, the commission disallows the entry for April 4, 2000, which reads, "Phone call with Attorney Dawn Harris re: EEOC contact; Review file re: damages issues for conciliatory agreement; legal research re: caps on damages; confer with RLI re: same (.25)." Clearly anything involving the complainant's federal claim is not reimbursable through these proceedings. Further, the notations referencing conciliatory agreements and damage caps do not appear to relate to the proceedings before the commission.

Finally, the commission declines to award payment for August 16, 2000, in which the complainant's attorney charges for time spent reviewing one of the commission's decisions involving attorney fees. This entry was made several months after the briefs to the commission were already filed and has not been shown to relate to the proceedings before the commission.

Subtraction of the items discussed above results in attorney fees of $6,069.25. Using the complainant's attorneys' respective hourly rates of $85 and $125 per hour, which the respondent has not challenged, this represents somewhere between 48 and 71 hours of work on the part of the complainant's representatives for reviewing the respondent's response to the complainant's fee petition, reviewing the administrative law judge's decision, preparation of a petition for review and brief in support of the petition, reviewing the respondent's petition and brief, and drafting a brief in reply. The commission believes that, even after the reductions discussed above, $6,069.25 is an excessive fee request for those services. Consistent with the fifty percent reduction applied to the complainant's fee request for the proceedings before the administrative law judge, the commission reduces the $6,069.25 amount by fifty percent for a total fee award of $3,034.63 for services performed in conjunction with the petition for review. Combined with the $27,393.37 awarded for work through the issuance of the administrative law judge's decision, this amounts to a total of $30,428 in attorney fees for the complainant.

D. Costs

The complainant requested a total of $5,233.32 in costs for his work prior to the issuance of the administrative law judge's decision, all but $450, representing half of the $900 requested in expert witness fees, of which was granted by the administrative law judge. The respondent has not challenged the administrative law judge's cost award in its petition for review, and the commission makes no further reduction.

In his petition the complainant argues that the $900 expert fee was reasonable on its face, given that Dr. Kernozck personally toured the respondent's plant in Tomah, attended a deposition in Eau Claire, and testified at the hearing in Sparta. However, the administrative law judge's rationale for reducing the expert witness fee award was that the complainant failed to specify how many hours were being requested for Dr. Kernozck or what rate he charged. The complainant still has not provided the information which the administrative law judge stated was lacking, and the commission has no indication as to how many hours were expended by Dr. Kernozck and at what hourly rate. Consequently, the commission is unwilling to increase the award of costs as requested by the complainant.

The complainant has requested an additional $382.66 in costs in connection with the petition for review, and the respondent has not filed any objection to that request. However, notwithstanding the lack of objection from the respondent, the commission nonetheless believes that there are several items that must be disallowed. For instance, the complainant has requested $204 as a photocopying expense noting, without further explanation, that 1,020 copies were made. This item is dated February 11, 1999, well before the proceedings before the administrative law judge were completed and prior to the complainant's submission of his bill of costs to the administrative law judge. The commission is unwilling to order payment of an expense which could have been submitted to the administrative law judge but was not, particularly where it is unaccompanied by any explanation as to what matter it was related to or why it was necessary.

The commission also disallows $4.50 requested for a FAX to attorney Melissa Brettingen. This expense was incurred on October 14, 1999, subsequent to the filing of the fee request to the administrative law judge, but prior to the issuance of his decision, and it is not clear what information was sent to attorney Brettingen or how it is relevant to this case. The commission further notes that the fee statement contains an entry dated October 14, 1999, annotated "information to Attorney Brennigan," which is a non-charge, suggesting that the item in question is not a payable expense in conjunction with these proceedings.

The commission additionally denies $59.69 requested for Westlaw research on November 3, 1999, after the fee request was submitted to the administrative law judge, but prior to the issuance of his decision. Absent any further notation, the commission fails to see how this item is related to any proceedings before the Equal Rights Division or the commission. Finally, the commission disallows the $10.50 charge to send an unsuccessful request for reconsideration to the administrative law judge via UPS second day air.

The remaining items requested all appear to relate to research in conjunction with the petition for review or, in the alternative, are costs associated with filing the petition and briefs. These items are allowed. The commission therefore determines that the complainant should be reimbursed for $103.97 in compensable costs associated with the petition for review, for a total of $4,887.29 in costs connected with these proceedings.

 

PAMELA I. ANDERSON, COMMISSIONER, (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. First, I do not believe that on this record allowing the employee to transfer to Cardinal IG is a reasonable accommodation. In McMullin v. LIRC the employee worked in the woodland division which worked outdoors. The employee had inflammation of his joints which was diagnosed as rheumatoid arthritis. He had pain and swelling in his knees and wrists. He doctor advised him to avoid work as a woodcutter because the extreme temperatures combined with the use of his joints in woodcutting would aggravate his arthritis and make the disease more difficult to control. He would likely have permanent damage if he continued his work as a woodcutter. The employee requested a transfer to the mill which would have him working inside. The mill was a separate division and refused to take transfers for any reason. The court was unwilling to adopt a rule which would say that a transfer between divisions was always unreasonable. The court indicated that it was very fact sensitive. The case did not really address the hardship issue; it was remanded to address that issue.

In McMullin it was reasonable to expect that allowing the employee to work inside would make a difference in his ability to adequately undertake his job responsibilities. In this case, there is no evidence or even speculation that transfer from one glass making company to another would provide a new job that the employee could do within his medical restrictions. In other words if he could not adequately undertake his job responsibilities at Cardinal TG then there is no reason to believe he could do so at Cardinal IG.

This is a difficult case because the employer did accommodate the employee for a number of years. During the time of accommodation, the employer did studies to discover how to protect its workers. The studies recommended that employees rotate through the jobs. The employee had been hired as a glass handler. The primary function of a glass handler was to move the glass on or off the line. The employee was unable to adequately undertake his job responsibilities. The majority finds that an employer may be required to structure a job so as to accommodate the employee.

The majority also cites the Gartner v. Hilldale case. That case was at the probable cause level and had no testimony as to why the employer believed allowing the secretary to work part-time was a hardship. The case said "It is possible that there could be communications problems or other inefficiencies caused by having secretarial duties performed sequentially by two different persons during each working day, and it is possible that the total payroll costs associated with two part-time employees might be higher than those associated with one full-time employee. Depending on the particular facts, these things could be found to pose a hardship on the employer and to make accommodation unreasonable."

Another disturbing factor in this case is the shifting restrictions based on Dr. Carlisle's testimony. Dr. Carlisle testified that he intentionally did not list all of the employee's restrictions on the April 3, 1997 medical release form. These restrictions included avoiding frequent and prolonged lifting, frequent and prolonged bending, frequent and prolonged sitting or standing at one place, frequent and prolonged driving, frequent and prolonged lifting from overhead and below the waist, frequent and prolonged running, frequent and prolonged jumping, frequent and prolonged kneeling, frequent and prolonged crawling and unprotected heights. While Dr. Carlisle does not define "frequent and prolonged," it would seem safe to say that over two hours at a time would be too much. Based on that, the employee would be unable to even do the quality control or quench responsibilities of the glass handler job.

For these reasons, I would reverse and dismiss the case. I believe the employer made a good faith effort to accommodate the employee's restrictions and to do any more would be an undue hardship because the employee was unable to adequately perform the job related responsibilities.

__________________________________________
Pamela I. Anderson, Commissioner


cc: Roger L. Imes
Richard A. Ross


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Footnotes:

(1)( Back ) The dissenting commissioner states that Dr. Carlisle testified in his deposition that the complainant had physical restrictions in excess of those indicated on the April 3, 1997 medical release form. The dissent speculates that, with the restrictions described by Dr. Carlisle in his deposition, the complainant would be unable to perform even the quality control or quench functions of the job, rendering the first proposed accommodation untenable. However, this argument ignores the fact that the complainant performed the quality control and quench functions of the job without difficulty for several years prior to his discharge. Moreover, the duty to accommodate requires an employer to accommodate those restrictions that it knows about at the time. It is not a defense to an accommodation claim to argue that information discovered after the employee was already discharged indicated that the accommodation sought would have been unsuccessful. While such an argument, if proven, might go to the issue of damages, the respondent has not contended that the complainant's damages should be limited on that basis, nor does the majority find such limitation to be appropriate.

(2)( Back ) The commission wishes to emphasize that nothing in the record suggests that the respondent restructured the job for the purpose of discriminating against the complainant because of his disability. To the contrary, no evidence of invidious discrimination exists.

(3)( Back ) The administrative law judge made a similar finding in his decision, which neither party has challenged on appeal. Where the parties have not objected to the findings with respect to the complainant's job search efforts, the commission considers it unnecessary to elaborate upon this issue in its decision.

(4)( Back ) Moreover, because the commission has modified the administrative law judge's decision to order back pay and reinstatement, there is no longer any question that the legal relationship between the parties has been materially altered to the complainant's benefit.


uploaded 2001/02/27