NANCY PARKER, Complainant
DANE COUNTY, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:
The commission adopts the Findings of Fact of the ALJ, except as explained in the numerical footnotes accompanying the following:
1. The County is a local governmental entity headquartered in Madison, Wisconsin. The County Clerk's Office is a department within the County, presided over by the County Clerk who is an elected official. The County Clerk's Office serves as the recording secretary for the County Board and keeps all of the County's official records including County Board actions, resolutions, motions, and committee and commission minutes. It also issues marriage licenses, administers County elections, provides plat maps to the public and answers questions for the public. In many instances, the County Clerk's Office is the general public's first point of contact within the County system.
2. In September of 1985, Parker began working full-time for the County in the food service office at Badger Prairie Health Care Center. After she was bumped from that position in 1987, Harriett Rowland (Rowland), the County's Employee Relations Manager, assisted her in finding reemployment as an Account Clerk II in the County Clerk's Office under the supervision of the former County Clerk, Carol Nelson (Nelson).
3. Parker suffers from a severe to profound sensory/neuro hearing loss in both ears that causes severe to profound impairment of her hearing ability. Her condition is progressive. Although Parker can hear sounds, she has difficulty with word discretion. She wears bilateral hearing aids in both ears that supplement her ability to lip read. Parker's lip-reading ability, combined with her hearing aids, enable her to understand almost everything that another person says to her in a one-to-one situation. Rowland first became aware of Parker's hearing difficulties in 1987 when she assisted Parker with finding reemployment in the County Clerk's Office.
4. In 1989 or 1990, the County Board passed a resolution to carpet the County Clerk's Office in order to reduce extraneous noise. The carpeting was installed as an accommodation to assist Parker in performing her job responsibilities. Eventually, the County also provided additional amplification for Parker's telephone.
5. Throughout her years of employment in the County Clerk's Office, Parker was primarily responsible for furnishing all of the fishing and hunting licenses to 60 to 65 dealers within the geographical boundaries of the County. Parker personally visited each of the dealers monthly in order to deliver new licenses and to pick up sold licenses. Parker was responsible for the inventory and accounting of sold licenses. Her fishing and hunting license duties comprised 60% to 65% of her work time. In addition to her licensing duties, Parker was responsible for keeping account of the marriage license and election moneys for the County as well as for the accounting of all dog and cat licenses sold annually in the County. Parker was also the first backup for the marriage license clerk, covering for her when she was out of the office. On those occasions, Parker would process marriage licenses by typing information provided by the applicants both in writing and orally, into a computer, filling in short blanks on a form. (1) As an Account Clerk II, Parker did not have a minimum typing speed requirement. Parker typed 42 words per minute (wpm), which did not satisfy the 50 wpm requirement for a Clerk Typist III position. (2)
6. Although during most of the years when Nelson supervised Parker, Parker would occasionally answer the telephone, toward the end of Nelson's tenure as County Clerk, she asked Parker to answer the telephone only when it was absolutely necessary. In Parker's performance evaluation dated September 1, 1995, Nelson wrote critical comments under the category, "Needs Improvement," referring to Parker's hearing impairment.
7. Robert Ohlsen (Ohlsen) became the Deputy County Clerk in 1995. Joseph Parisi (Parisi) won the election for County Clerk in September of 1996 and became Parker's supervisor along with Ohlsen. Neither Parisi nor Ohlsen ever criticized Parker's work. In a letter dated August 27, 1997, addressing the critical comments made about Parker by former county clerk Nelson, Parisi stated as follows, in relevant part:
I have worked with Nancy for the last year and I have found her to be invaluable to this office. Nancy's knowledge and dedication to her job are unmatched. She efficiently and effectively runs the entire DNR section of our office and serves as our bookkeeper.
In addition, when the need arises, Nancy does not hesitate to fill in at virtually every position in this office, i.e., issuing marriage licenses, working the counter and assisting with elections.
Nancy possesses an institutional knowledge of this office matched by no other. And, her work ethic and sense of responsibility make her an employee in whom I have complete confidence. (3)
After Parisi had been County Clerk for a while, he formed the opinion that the County Clerk's Office was overstaffed.
8. In July of 1998, Parker learned that her fishing and hunting license duties were going to end because the State of Wisconsin Department of Natural Resources (DNR) had obtained a new computer program that would automate the license processing. However, it was not until nearly a year later on May 3, 1999, when Rowland gave Parker a "bumping packet" that Parker learned that her position in the County Clerk's Office was about to be eliminated. The packet included a letter informing Parker that her position had been eliminated from the budget. It also contained a seniority list with the names of all of the County employees in Parker's bargaining unit who were at her pay range or below and who had less seniority than Parker had. Parker's bumping rights gave her the ability to bump any employee on the list, provided that Parker had the qualifications for and the demonstrated ability to do the selected job. The letter from Rowland informed Parker,
You are the only employee receiving a layoff notice at this time. Therefore, you can reasonably expect to be placed in the position of your choice. The only reason you would not receive your first choice would be your failure to meet the employment standards for the position. Be sure to think through the number of choices you make. It is important to know that you will not have a chance to add choices later. Therefore, if you make only a few choices, (and you do not meet the minimum qualifications), you may be forced into a layoff situation even though less senior positions are available that you could have bumped into.
The bumping list that Parker received included 14 full-time Account Clerk II positions.
9. As of May of 1999, in addition to Parker, the County Clerk's Office had 3 other support staff members including 2 Clerk Typist III's, and an election specialist. Juli Pohlod (Pohlod), the marriage license clerk, held one of the Clerk Typist III positions, Ellen Haupt (Haupt) was the other Clerk Typist III, and Judy Nowak (Nowak) was the elections specialist. Parker did not know that she had more seniority than Pohlod until she received her bumping packet.
10. The day that Parker received her bumping packet, she informed Rowland that she was primarily interested in the marriage license clerk position even though it involved a significant pay reduction. The Clerk Typist III position description states in part, "Employees in this classification may have a great deal of contact with the public and employees of other units in seeking and giving out information where very specific, narrow and highly detailed knowledge of departmental policy and procedures is required." The Clerk Typist III position requires "an ability to do work with speed and accuracy" and also has a minimum typing speed requirement of 50 words per minute with a maximum of 10 errors.
11. On May 3, 1999, Parker also expressed interest to Rowland in 5 Account Clerk II positions. Parker's second choice was a position at the County Expo Center (currently called the Alliant Energy Center). Her third choice was a position at the County airport. Her fourth and fifth choices were 2 positions in the Support Enforcement Division of the County Corporation Counsel's Office. Parker's last choice was a position in the County Department of Human Services. Parker asked Rowland to find out how much telephone work those 5 positions involved. Parker did not select any other Clerk Typist III positions because she did not want to take a pay cut.
12. Rowland e-mailed County department heads on May 3, 1999, in an effort to locate possible positions for Parker. She also noted in her e-mail that she had asked a couple of her staff members to obtain information regarding specific Account Clerk II positions at the airport, Expo Center, Corporation Counsel's Office, and Department of Human Services including "amount of public contact, in person and on the telephone."
13. Parker and a union representative met briefly with Richard Johnson (Johnson), the County Americans with Disabilities Act (ADA) Coordinator, on May 3, 1999, regarding Parker's concerns about the bumping process and her hearing impairment. Parker informed Johnson that even with amplification or induction loops, she could not hear over the telephone except when talking with her children who are experienced in having telephone conversations with her. Johnson and Parker discussed the possibility of using a voice carryover (VCO) system as an accommodation for her telephone duties. As of the time of the hearing in this matter, Parker had been using a 2-line VCO system at her home for 3 years. Johnson told Parker that he would look into VCO systems and how they operated. After meeting with Parker, Johnson believed he had left Parker with the impression that he would contact her if he became aware of any "new 'break-through' advances in [VCO] technology." Johnson contacted the Wisconsin Relay System (WRS) regarding VCO systems that day. WRS is an organization located in Middleton, Wisconsin, that provides free telephone communication services between deaf, hard of hearing or speech-disabled individuals using a TTY (a telephone with a keyboard and display screen for hearing-impaired individuals) and individuals using a standard telephone. WRS mailed information to Johnson the following day.
14. As of May 3, 1999, Johnson was familiar with both single-line and 2-line VCO systems. He was aware that a hearing-impaired person (the caller) who had the ability to speak and who did not want to use a TTY, could set up a telephone call through WRS. The caller telephones a WRS communication assistant. Next, the communication assistant telephones the person to whom the caller wants to speak (the call recipient). Upon reaching the call recipient, the communication assistant asks that person if he or she is familiar with WRS and then provides a short explanation of the service. The communication assistant then types the call recipient's remarks on a TTY for the caller who in turn responds to the call recipient by speaking. An incoming call on a single-line VCO for a hearing-impaired person requires a caller to contact WRS first.
15. By May 3, 1999, Johnson was aware that a 2-line VCO involves a conference call arrangement where the caller contacts a WRS communication assistant using a TTY. The call recipient is then contacted through a conference call arranged by the communication assistant so the caller can listen to the call recipient's comments on a regular telephone while reading the communication assistant's typing over the TTY of the call recipient's comments. Consequently, the caller is able to respond verbally to the call recipient without the call recipient being aware that a communication assistant is assisting the caller with the telephone call. In May of 1999, Johnson was under the impression that an incoming call for a hearing impaired person also required a caller to contact WRS first.
16. When she first learned that Parker was interested in the marriage license clerk position, Rowland was aware that Parker did not think that she could type 50 words per minute. On or about May 4, 1999, when she talked to Parker again, Rowland told Parker that she was willing to sign a Memorandum of Understanding (MOU) with Parker's union that would allow Parker to fill the marriage license clerk position. The MOU would also restrict Parker from bumping into any other Clerk Typist III positions unless she successfully passed the Clerk Typist III typing test. Initially Parker was under the impression from Rowland that she would receive the marriage license clerk position.
17. Parker returned her bumping packet with her selections to Rowland by May 6, 1999, ranking the marriage license clerk position first, followed by the 5 full-time Account Clerk II positions in which she had already expressed interest to Rowland.
18. After Rowland received Parker's bumping packet selections, she had numerous discussions with Parisi about Parker. Rowland had her first contact with Parisi by telephone shortly after she received Parker's bumping packet, followed by a face-to-face meeting with Parisi. Rowland informed Parisi that Parker had selected the marriage license clerk position in the County Clerk's Office as her first choice. Parisi replied that he thought that Parker was going to have difficulty fulfilling the duties of the marriage license clerk position.
19. Parisi was particularly concerned about Parker's ability to answer the telephone. Parker's typical method of handling telephone calls was to answer the telephone, tell the caller to "please hold," and then ask one of the other office employees to take the phone call. During Parker's tenure in the County Clerk's Office, the other members of the support staff had handled nearly all of Parker's phone duties due to her hearing impairment. (4)
20. During the week of June 7-11, 1999, the County Clerk's Office received the following calls:
179 directed to other county offices
131 marriage license inquiries
10 election inquiries
320 total calls
During the week of June 14-18, 1999, the County Clerk's Office received the following calls:
219 directed to other county offices
142 marriage license inquiries
8 election inquiries
369 total calls (5)
The office was not handling calls regarding fishing and hunting licenses during these weeks. (6) The volume of election inquiry calls increases during spring and fall election periods.
21. Telephone answering duties comprise 30% of the marriage license clerk position. Additionally, the entire staff of the County Clerk's Office works on election night, answering telephone calls from the candidates, the press, and other interested parties. Two staff members are assigned to enter poll results called into the County Clerk's Office. The results are dictated by one staff member and entered by another staff member. There are 2 to 4 election nights in any given year.
22. Parisi is philosophically opposed to the use of voice mail in his office because he believes that the County Clerk's Office's mission is public service. Part of his campaign platform was to improve County government accessibility to the public. Consequently, he wants the staff members in his office to answer telephone calls directly so that they can answer questions from the public. Calls coming into the office when all those who answer phones are busy continue to ring until answered or until the caller hangs up. It is a common practice for an employee of the office to place callers on hold until they have time to answer their question or direct their call. The office publishes a phone number for marriage license information. Callers to this number hear a recording setting forth basic marriage license information, and have the opportunity to leave a message requesting further information on an answering machine. (7)
23. Although he couldn't recall ever observing that Parker had any problems when she was issuing a marriage license or answering related questions, and never documented any such problems, Parisi expressed a concern to Rowland that Parker would be slower than her co-workers in issuing marriage licenses because she needed to look at people while they were talking to her and could not, as a result, type on the form on the computer at the same time. (8)
24. Another concern that Parisi had regarding Parker filling the marriage license clerk position was that he wanted the marriage license clerk to occasionally take minutes for him at meetings. Parisi did not think that Parker would be able to take meeting minutes in a situation with a group of 6 to 10 people sitting around a table and talking back and forth. Parisi had never assigned this function to the previous incumbents of the marriage license clerk position. (9)
25. Parisi was also concerned that, with the elimination of Parker's position, the workload of the three remaining support staff members would increase and they would be less able as a result to assist Parker in her performance of the duties of the marriage license clerk position. After the elimination of Parker's Account Clerk II position, Ohlsen assumed its remaining duties, and the support staff in the County Clerk's Office consisted of the following: (10)
Clerk Typist III marriage license clerk
Clerk Typist III front desk receptionist
26. It was Parisi's impression that the other two members of the support staff in the County Clerk's Office would be displeased if Parker were appointed to the marriage license clerk position because they no longer wanted to perform her phone duties. (11)
27. On May 12, 1999, Rowland met with Johnson, seeking clarification regarding the issue of reasonable accommodation in relation to Parker's selection of the marriage license clerk position as her first choice. Rowland reported to Johnson that Parisi believed that Parker should not receive the marriage license clerk position because of the need for that individual to answer telephone calls from the public. Rowland wanted to be able to explain to Parker why the County believed that it could not accommodate her first bumping selection. Johnson suggested that perhaps Parker's new position should be one that did not require the use of the telephone. He also commented that if Parker's new position required that telephone callers speak directly to her, the County might make use of a VCO system. Johnson told Rowland that he would check into VCO systems by contacting the Job Accommodation Network (JAN), sponsored by the Office of Disability and Employment Policy of the U.S. Department of Labor.
28. Meanwhile, on May 13, 1999, Parker e-mailed Rowland inquiring about the status of her "bump." Rowland sent the following e-mail back to Parker: Nancy - I am still processing your bump, working with Richard Johnson regarding how ADA fits in with the decision making process. It is too soon to say anything to anyone. I will notify everyone in writing of the outcome of the bump. Please be patient.
29. On May 14, 1999, Johnson telephoned JAN. JAN provides information and referral sources regarding available reasonable accommodation devices and services. As a result of that telephone call, Johnson did not receive any information regarding VCO systems of which he was not already aware. During his conversation with JAN, Johnson did learn that if Parker used voice mail, customers would have to make 2 telephone calls. First they would call the County Clerk's Office and receive a recorded message that would provide the telephone number for WRS. Then they would make a second telephone call to WRS. WRS would then contact Parker. As a result of Johnson's research into VCO systems, he concluded that there had not been any new advances in VCO for a hearing person who was placing a telephone call to a hearing impaired person. VCO still necessitated that the hearing person go through WRS to communicate with a hearing-impaired person.
30. Rowland and Johnson met again on May 14, 1999, after he had completed his research. They discussed WRS and possible telephone accommodations for Parker including the difficulties with VCO systems and voice mail. They also talked about the use of an answering machine but concluded that it would not work for Parker (12) because she cannot hear over the telephone. They discussed the use of e-mail but concluded that it would prevent a quick exchange of information, particularly in light of Parker's typing limitations. They agreed that it would be possible for Parker to switch the essential functions of the marriage license position with another employee in the office but concluded that the ADA did not require that approach. They also concluded that none of Parker's other bumping selections would work because the essential functions of all of those jobs involved telephone work. Rowland suggested that they contact the other County departments regarding the nature of Parker's disability and the impact of it on certain job functions in order to ascertain if one of the departments would have a position for Parker. They agreed that Rowland would draft a statement for Parker's approval that she would send to the other County departments regarding Parker's situation.
31. After her meeting with Johnson, Rowland drafted a letter to County managers and supervisors informing them that the Account Clerk II position in the County Clerk's office would be eliminated from the budget effective June 6, 1999. Regarding Parker, Rowland wrote,
The Acct Clerk II has a good work record. Joe Parisi is prepared to give a personal reference. You need to know that the employee has a severe hearing loss which interferes /prevents her from using the telephone. Her skills include accounting (13 years) spread sheets (Paradox) windows, auditing and reconcilling [sic] ($4 million inventory) accurate typing skills (willing to take a typing test) filing and organization skills, excellent lip reading skills (98%) accuracy).
Rowland's draft letter then requested that managers or supervisors who had a position "which uses these skills and requires either no telephone work or telephones that can be answered with a machine or a relay system, contact [her] immediately."
32. Rowland also had several meetings with Parker in May of 1999. Later in the month, Rowland informed Parker that she had talked with Parisi about Parker filling the marriage license position. She told Parker that Parisi had told her that he did not want Parker to have the position because Parker could not hear clearly. Rowland talked with Parker about the extensive need for the marriage license clerk to use the telephone. She also told Parker that there were concerns about her ability to answer the telephone.
33. (13) On May 18, 1999, Parker e-mailed Johnson reminding him that she had still not heard from him regarding VCO systems. Johnson e-mailed Parker on May 19, 1999, clarifying that because he had learned that there was nothing new in VCO technology for hearing persons placing telephone calls to hearing-impaired individuals using VCO, he had not gotten back in touch with her. Johnson invited Parker to contact him again if she had questions about her situation and the ADA.
34. Rowland received a letter from Attorney Paul Kinne (Kinne) dated May 19, 1999, informing her that Parker had retained him "to represent her in a potential disability discrimination claim." Kinne referred to Rowland's draft letter to the County management team, stating that Parker's signature on that letter was "unnecessary" because the County should give Parker the marriage license clerk position.
35. Rowland responded to Kinne's letter on May 21, 1999, in order to clarify the County's position regarding finding a new position for Parker. She wrote,
Due to this employee's declared disability, specifically as it affects her ability to answer and make telephone calls, the County Clerk has informed me the Clerk Typist III position that Nancy has selected is not an option. The nature of his office requires direct public contact. While answering machines are available for back-up coverage, this technology does not meet this essential goal of the office. The Americans with Disabilities Act preserves the employer's right to determine what is an essential business need and to evaluate accommodation requests in light of that need. Therefore, in order to assist Ms. Parker in her search for a satisfactory placement, I requested permission to email Dane County's management team, per the handwritten draft you have in your possession. My purpose was to identify as many bumping options as possible, which would not require use of the telephone and would not have a significant impact on her income. Because of the disability, I recognize that I am limited in what I can say to the managers, without her permission. I plan to make a generic plea for assistance, with no reference to disability; however, I believe that without a complete picture of the situation, the managers will not understand the full ramifications of my request, and may not alert me to all viable options.
Rowland then noted the urgency of the situation, given the short amount of time left before the elimination of Parker's current position from the County budget on June 6, 1999, and Rowland's upcoming vacation. She stated that if they did not resolve Parker's situation by June 6, 1999, Rowland would have "no recourse but to lay her off until my return, on the basis that she made an insufficient number of choices to find a suitable placement." Rowland then invited Parker and Kinne to meet with her and other County officials to review the marriage license clerk position and to "develop a plan for evaluating the appropriateness of other positions in County government."
36. Kinne faxed a response to Rowland on May 22, 1999, informing her that Parker was not interested in having Rowland contact the County's management team about her. He requested that the County place Parker in the marriage license clerk position unless the County could provide a good reason why Parker should not receive that position. At that point, Parker would then be willing to consider the rest of the positions that she had ranked in her bumping packet. Kinne also requested that if the County did not give Parker one of her selected positions, that Rowland arrange for the State of Wisconsin Division of Vocational Rehabilitation (DVR) to examine Parker's workplace in order to recommend modifications to her workplace or job duties for the purpose of accommodating her. Finally, Kinne indicated his and Parker's interest in meeting with Rowland as she had suggested.
37. On May 26, 1999, Johnson met with Parisi to discuss the possibility of placing Parker in the marriage license clerk position and to observe the work setting in the County Clerk's Office. Parisi discussed the high volume of telephone calls coming into his office and the importance of having a live person answer the telephone calls. Based on Parisi's comments about the importance of answering telephone calls quickly in the County Clerk's Office, Johnson determined that there was no possible accommodation for Parker in the marriage license clerk position that would make her functionally equivalent to a person without a hearing impairment.
38. By May 27, 1999, Rowland's staff members had completed their investigation of the other 5 positions that Parker had selected in her bumping packet.
39. Rowland learned from her staff members that the position at the County Expo Center required the use of voice mail and extensive telephone work with customers regarding billing questions. It also required significant telephone and in-person interaction regarding the coordination of the Expo Center's equipment rental services and electrical equipment resale. In addition, the Expo Center position involved oversight of special events parking cash collection involving the use of a radio. Reassigning duties at the Expo Center was problematic because a clerical position had already been eliminated and the 2 remaining Clerk Typists were working a significant number of overtime hours.
40. Regarding the 2 Account Clerk II positions in the Corporation Counsel's Office, Rowland learned that both positions involved extensive telephone work, answering question for callers about child support enforcement cases. Both employees in those positions had a dedicated telephone line with voice mail. The positions required the ability to type into a computer while talking on the telephone.
41. The position in the Human Services Department required initiating telephone calls to County case managers in order to clarify details regarding reporting of client services. Communicating with case managers through e-mail was not an option because not all of them had e-mail and in some instances, the Account Clerk II needed to obtain immediate answers.
42. Finally, Rowland learned that the Account Clerk II position at the airport involved significant telephone calls from vendors and tenants regarding the payroll accounting functions of the position. The position also necessitated frequent telephone calls with the Purchasing and Controller's Office and with other airport employees regarding purchase order requisitions. Barb Wegner (Wegner), the County Risk Manager, visited the airport in May of 1999 because she wanted to understand the nature of the airport position that Parker had identified in her bumping packet. In addition to the information that Rowland received, Wegner learned that the airport position involved contact with other employees through the use of a walkie-talkie.
43. Rowland, Johnson, and Wegner comprised the County's ADA team in May of 1999. They met late in that month to assess the feasibility of placing Parker into any of the 6 positions that Parker selected in her bumping packet. They decided that Parker's hearing impairment would make it impossible for her to fulfill all of the essential functions of any of the 6 jobs.
44. Rowland and Johnson met with Parker and Kinne on May 27, 1999. At the meeting, Parker stated that she could hear 50% of telephone calls with a powerful amplifier. Johnson reminded her that she had previously told him that she could not hear on the telephone unless she was talking with her relatives who know how to talk with her on the phone. During the meeting, the participants discussed various job options for Parker. Rowland wanted to place Parker in a different position quickly because she was planning to be on vacation during the time that Parker's Account Clerk II position was eliminated from the County budget. If Parker bumped into another position, Rowland needed to be in the office in order to process her bump.
45. Kinne faxed Rowland the following letter on May 28, 1999: My client has had an opportunity to consider your proposals. She still believes (and I concur) that she is entitled to the Clerk Typist III position in the Clerk's office. It is her position that with a reasonable accommodation like those we have discussed, she could perform the essential functions of that job. Therefore, she has asked me to ask you to exercise your authority to place her in that position and implement at least one of the accommodations that we have discussed. At this time, she is not interested in either of the two positions we discussed yesterday.
46. Rowland wrote a letter to Parker on June 1, 1999, informing her that she was being laid off effective June 6, 1999, because Parker "made insufficient choices on [her] bumping packet." Rowland asked Parker to make an appointment with her "after June 21, 1999, in order that we can discuss your mandatory reemployment rights."
47. After Parker's layoff took effect, she was no longer eligible to bump a County incumbent employee out of a job. She did, however, have mandatory reemployment rights for the 18 months following her layoff. Consequently, she was allowed the right of first refusal in seniority order for any open position in her bargaining unit that was in or below her pay range if she had the demonstrated ability to do the work. County employees who are laid off receive notification of all those County job vacancies posted internally and those job vacancies open to public recruitment.
48. The County continued to search for a position for Parker after she was laid off. During the winter of 2000, Johnson had a discussion with a staff person at the JAN about a different situation. During their conversation, he learned that he had been mistaken about how incoming telephone calls work on a 2-line VCO system. Rather than the caller needing to contact the WRS first, the caller calls the hearing-impaired individual directly. That person answers the telephone, says, "Please hold," and then pushes a button for an automatic connection with a communication assistant at WRS. Therefore, the caller is unaware that a communication assistant is involved in the call.
49. Johnson also discovered during the winter of 2000 that WRS could provide a demonstration of the 2-line VCO system to the County. Johnson thought that if the demonstration was successful, the County could seriously consider placing Parker in the marriage license clerk position in the County Clerk's Office. On February 11, 2000, Johnson also contacted Universalink, a division of the Center for Deaf and Hard of Hearing located in Milwaukee, Wisconsin. Universalink eventually sent Johnson information on May 11, 2000. At some point, Johnson also researched HyperAble Data, a national database of assistive technology devices, on the internet in a continuing effort to find a suitable accommodation for Parker.
50. On February 25, 2000, John Kinstler (Kinstler), a customer service representative at WRS, attempted to set up a 2-line VCO demonstration for Johnson, Rowland and Wegner at Johnson's office, using a cell phone and a TTY phone. The first demonstration did not work because of technical difficulties in setting up the second telephone line down the hall from Johnson's office.
51. Johnson then scheduled a time with Kinstler for himself and Wegner to go over to WRS on March 3, 2000, for a second 2-line VCO demonstration. Johnson had prearranged for several telephone calls to come into WRS. When the first call came in, the call recipient said, "Please hold." It took over a minute to contact the communication assistant for the conferencing call. During the call, the communication assistant said that the caller was speaking too rapidly to type all of the caller's words. A second call from a different caller took over 4 minutes to connect with the communication assistant for the conferencing call. Again the communication assistant had difficulty typing fast enough and failed to communicate on the screen that the caller was speaking in an angry tone of voice. After the demonstration, Kinstler commented that "2-line VCO is in its infancy." The Respondent did not request a demonstration of the VCO system if it were used just to handle outgoing calls. (14)
52. As a result of the VCO demonstrations, Johnson concluded that VCO would not enable Parker to be functionally equivalent in the marriage license clerk position or any other County position that required telephone duties with the public.
53. After the VCO demonstrations, Wegner wanted to explore for herself whether there was any possibility for placing Parker into a position in the County Clerk's Office. On March 8, 2000, Wegner met with Haupt and Nowak and, on March 9, with Parisi. Wegner formed the impression after these meetings that Haupt and Nowak believed that the workload of the remaining support staff positions had increased due to the elimination of Parker's Account Clerk II position, and these positions would, therefore, be unable to absorb the extra work of handling all marriage license clerk calls; that marriage license calls accounted for one-half of all calls coming into the office; that customers had expressed frustration to them about Parker's inability to hear them; and that they hadn't complained about Parker's performance in the last year because they were aware her position was being eliminated. (15)
54. In April of 2000, Rowland and Johnson participated in a meeting with Parker, Attorney Kinne, and members of the County Sheriff's Department to consider placing Parker in a payroll clerk position in the Sheriff's Department. Although the position required extensive telephone contact, the County was interested in investigating the possibility of accommodating Parker by shifting duties among the large staff in the central command office. Parker decided that she was not interested in the position because she had already determined that she was going to retire and because the position under discussion had the reputation of being the most stressful job in the County. Parker did not think that she could handle the job.
55. Parker wrote the following letter to Rowland on June 9, 2000: "Please consider this letter my resignation from employment with Dane County and notice of my intent to retire effective June 30, 2000." Parker decided to retire from the County because she needed a monthly income and could only withdraw money from her deferred compensation account if she retired.
Based upon the Findings of Fact made above, the commission now makes the following:
2. Complainant Parker is an employee within the meaning of the WFEA.
3. Complainant Parker sustained her burden to prove that she is an individual with a disability within the meaning of Wis. Stat. § 111.32(8).
4. Complainant Parker sustained her burden to prove that Respondent County
of Dane violated the WFEA by terminating her employment based on her
5. Respondent County of Dane failed to sustain its burden to prove that it reasonably accommodated Complainant Parker's disability within the meaning of Wis. Stat. § 111.34(1)(a).
6. Respondent County of Dane engaged in prohibited disability discrimination within the meaning of the WFEA.
2. The Respondent shall offer the Complainant reinstatement to a position substantially equivalent to the marriage license clerk position, provided such a position is currently available and that the complainant is able to perform it with reasonable accommodations based on her current needs. (16) 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 her all seniority and benefits, if any, to which she would be entitled but for Respondent's unlawful discrimination, including sick leave and vacation credits.
3. Respondent shall make the Complainant whole for all losses in pay that she suffered by reason of the Respondent's unlawful conduct by paying her the sum she would have earned as the marriage license clerk from the date of her layoff/termination until the date the Complainant resumes employment with the Respondent, or would resume or would have resumed such employment but for her refusal of a valid offer of a substantially equivalent position, or on which it is shown that reinstatement was no longer feasible. (17) 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. 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 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. Respondent shall pay the Complainant's reasonable attorney's fees and costs associated with this matter, in a check made payable jointly to the Complainant and to Attorney Paul Kinne and delivered to Mr. Kinne.
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 November 10, 2003
parkena . rrr : 115 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
Individual with a disability
The WFEA defines an individual with a disability in Wis. Stat. § 111.32(8) 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 WFEA 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 whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985); Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).
Complainant Parker's hearing loss, established through expert medical evidence, is severe/profound, and the record supports a conclusion that it not only substantially limits one of her major life activities, i.e., communication, but, as the Respondent recognized when it made its decision to deny her bumping requests, it also limited her capacity to perform the marriage clerk position and the other positions on her list.
Parker next has the burden to prove that she was not permitted to bump into the marriage license clerk position or any other position on her list, and was terminated as a result, because she was disabled. Target Stores, supra.; Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). The record shows that the Respondent County of Dane made this series of decisions because of the impression of Parisi and Rowland and others that Parker's hearing impairment prevented her from carrying out the phone duties of the marriage license clerk position and the related duties of the other positions on her bumping list. Clearly, then, the Respondent's actions at issue here were taken because of Parker's disability, and she has sustained her burden of proof in this regard.
The burden would then shift to the employer on the issue of accommodation. Respondent County of Dane must show either that a reasonable accommodation would pose a hardship, or that, even with a reasonable accommodation, the employee "cannot adequately undertake the job-related responsibilities." Target Stores, supra.
There are two separate steps to the "reasonable accommodation" analysis: (1) to determine whether the accommodation is a reasonable one, i.e., whether it effectively enables the disabled individual to perform the job-related responsibilities of her employment; and (2) to determine whether it imposes a hardship on the employer. McMullen v. LIRC , 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988); Target Stores, supra.
The record shows that removing the phone duties of the marriage license clerk position, either alone or in combination with the use of voice mail, email, and VCO technology, would effectively enable Parker to perform the duties of this position and would, as a result, be a reasonable accommodation.
Respondent argues in this regard that Parker's vocational expert Weigert failed to testify or demonstrate that the use of VCO technology for outgoing calls, combined with the use of transcribed voice mail, would work in "real-life application." However, Complainant's vocational expert Weigert did testify that such a combination of technologies would permit Parker to return phone messages, and it is not the Complainant's burden to carry out a demonstration to substantiate this. Moreover, Respondent's ADA coordinator Johnson admitted in his testimony that using the 2-line VCO technology would have enabled Complainant to make outgoing phone calls and would have been a reasonable accommodation for this task. In addition, although the Respondent's demonstration showed the use of VCO technology for handling incoming calls was not efficient, this is not the applicable criterion at this stage of the analysis. The Respondent's demonstration did show that VCO technology would enable Parker to answer and respond to incoming calls, which satisfies the requirement that an accommodation be a reasonable one. The relative efficiency with which this could be accomplished relates to the issue of hardship.
Respondent argues that the only accommodation requested by Complainant and, as a result, investigated by Respondent, was the use of voice carryover (VCO) technology, i.e., a phone system whereby a hearing intermediary would facilitate communication between Complainant and the person on the other end of the line. The record does not support this. In fact, Complainant's attorney during the accommodation/bumping negotiation process, mentioned in correspondence Respondent's duty to explore position restructuring and other non-technology- related accommodations, as well as Complainant's request that a vocational expert be brought in to explore and recommend possible accommodations. Moreover, it is well settled that the scope of an employer's accommodation duty is not limited to accommodations requested by the employee. It should also be noted in this regard that Richard Johnson, Respondent's ADA coordinator, testified that he only investigated VCO and similar technology because he didn't have an accommodation request form from Complainant to review, and then admitted that he hadn't provided her with such a form.
Respondent also asserts that removing the phone duties of the marriage license clerk position would still not enable Parker to perform the responsibilities of this position because, aside from her inability to communicate on the phone, her hearing impairment and poor typing skills caused her to take twice as long to prepare a marriage license than the other support staff in the office. However, the only member of the support staff to testify was Myrna Cummings, who had served as the marriage license clerk until 1996. She testified that Complainant had performed competently as the first back-up to her position. Although deputy clerk Ohlsen testified that he had observed that Complainant was less efficient than the incumbent marriage license clerk in preparing/issuing marriage licenses and attributed this in part to her having less experience performing the task and in part to her hearing impairment; and county clerk Parisi and Ohlsen testified that they had heard from the other support staff that Complainant was less efficient in performing this task, they had both provided glowing evaluations of Complainant's work performance and they both admitted that they had never criticized her performance in any way. Moreover, the information they claim they obtained from the members of the support staff is hearsay which meets no exception to the hearsay exclusion. In addition, personnel director Rowland had offered to waive the typing requirement for Complainant for the marriage license clerk position because Complainant had performed the duties of the position as a back-up and had performed them well. Complainant testified that neither her typing proficiency nor her hearing impairment interfered with her ability to prepare/issue marriage licenses, and the commission finds the Complainant's evidence in this regard more persuasive.
Finally, and most significantly, Respondent contends that a reasonable accommodation is one which permits an employee to perform the duties and responsibilities of the position at issue, not a re-configured or new position created by modifying these duties and responsibilities, particularly to the extent required here where phone duties consume 30% of the time the marriage license clerk position devotes to work activities. The Wisconsin Supreme Court recently considered this contention in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 664 N.W.2d 651 (2003). Citing McMullen v. LIRC, 148 Wis.2d 270, 434 N.W.2d 830 (Ct. App. 1988), the court held that an employer's duty of reasonable accommodation was not limited to providing one which would enable the employee to perform all of a position's responsibilities, but instead may require an employer to modify certain responsibilities of a disabled employee who can perform some or most, but not all, job-related functions.
The record shows that Parker could perform without accommodation those duties of the marriage license clerk position which did not involve the use of the phone, and that, with the addition of certain office technology, Parker could perform certain of the position's phone-related duties. The commission concludes, consistent with the result reached in Crystal Lake, that removing the phone- related responsibilities of this position, or removing certain of these responsibilities and modifying the remainder in concert with the addition of certain office technology, would enable Parker to perform sufficient job-related functions of the marriage license clerk position to support a conclusion that these accommodations would have been reasonable ones.
The commission notes that, at this point in its consideration of Parker's eligibility for the marriage license clerk position, the Respondent, based on its conclusion that it was not required to remove any of the "essential functions" of the marriage license clerk position in order to accommodate Parker, and that any potential accommodation would necessarily involve removing the essential function of handling phone responsibilities, apparently ended its inquiry. However, although this may be a sound approach under the federal Americans with Disabilities Act (ADA), an essential function analysis is not employed in reviewing a disability accommodation issue under the WFEA.
Respondent next has the burden to show that it would impose a hardship on the office to place Complainant in the marriage license clerk position.
In Crystal Lake, the complainant, Catlin, was the incumbent of the subject position, and this position was not covered by a collective bargaining agreement or part of a position classification system; Catlin had been involved in a non-work- related accident which rendered her paralyzed and confined to a wheelchair but generally able to use her hands and arms; Catlin's co-workers were her mother and sister who indicated a willingness to assume the more physically demanding duties of Catlin's position; the more physically demanding duties Catlin was now unable to carry out had been performed regularly but not "very frequently" by her prior to her accident; and it was the practice in the workplace for co-workers to perform the duties of all positions as workload required.
The Respondent argues, at least by implication, that requiring that an employer modify the duties and responsibilities of a position as a reasonable accommodation is more clearly justified when the disabled individual has worked in the position for a significant period of time, as in Crystal Lake, than when the disabled individual is a candidate for the position as a new hire, a transfer hire, or, as here, a displacement in lieu of layoff hire. However, Parker had worked for the Respondent for many years and, although not the incumbent of the marriage license clerk position, had performed the duties of this position on a back-up basis for these many years and was entitled to the position pursuant to the terms of the applicable collective bargaining agreement. Parker's status, as a result, was significantly stronger in this regard than that of a new hire or a transfer hire and more similar to that of a position incumbent. It should also be noted that, unlike a new or recent hire, Parker worked successfully for respondent for fourteen years despite her disability, respondent had accommodated her disability in her Account Clerk II position by having other support staff handle her phone work, and the need to accommodate complainant arose not because of a change in her personal circumstances but instead because of a change in responsibilities assigned to the office. See, Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 16, 2001) (removing assigned duties reasonable accommodation where employee had performed job successfully for many years without accommodation, and is to be distinguished from more typical case 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).
Respondent argues that, because there would, after the elimination of Complainant's Account Clerk II position, be only three support positions left in the office, it would be a hardship for only two of these positions to have to handle all the phone work if phone responsibilities were removed from the marriage license clerk position to accommodate Complainant's hearing impairment. In support of this argument, Respondent contends that the volume of phone work in the office is heavy, and offers statistics compiled during the weeks of June 7-11 and June 14-18, 1999, in support. Analysis of these statistics shows that the office received an average of 9.2 calls per hour during these weeks, at least 54% of which were apparently simply directed to a different office. These statistics also show that having two staff persons field all the calls rather than three would increase the number per person by about 1.5 calls per hour. Given that more than half of all calls involve no substantive response other than directing the call elsewhere, this additional burden does not appear to be a substantial or even significant one. It should also be noted, as former marriage license clerk Cummings testified, that the volume of calls would have been significantly less in June of 1999 because of the elimination of the hunting/fishing license responsibilities. In fact, it is possible that reassigning all or most of the phone responsibilities of the marriage license clerk position would have had no effect on the number of calls for which the two remaining support staff members would have been responsible given that the office no longer handled hunting/fishing license calls. (18) Although 40% of the calls to the office are marriage license-related calls, it appears from the record that every member of the support staff is expected to handle most, if not all, of the marriage license inquiries that come into the office. The Respondent also argues that, as a further result of the elimination of Parker's Account Clerk II position, the reassignment of the duties of this position which had not been eliminated further increased the workload of the support staff. The record shows, however, that most or all of these duties had been assumed by Ohlsen and would not, therefore, have had an impact on the workload of these positions. The Respondent has failed to sustain its burden to demonstrate hardship in this regard.
Respondent also contends that assigning all or most of the phone duties of the marriage license clerk position to the other two support staff members would have caused a morale problem. Respondent, however, didn't prove this by competent evidence. See, Fields, supra. The testimony of county clerk Parisi, deputy clerk Ohlsen, personnel director Rowland, and risk manager Wegner to this effect is hearsay. Moreover, as discussed above, the Respondent failed to show that such a distribution of phone responsibilities would have increased the workload of the other support staff members sufficiently to cause such a morale problem. Finally, although office harmony is a laudable management goal and a legitimate consideration here, the goals of the WFEA would not be served if disgruntled co-workers could block reasonable accommodations simply by expressing objection or threatening to file contract grievances.
Respondent argues that it would be a hardship to assign the phone duties of the marriage license clerk position to the remaining two support staff because it could jeopardize the classification of their positions. However, this had apparently not been a concern when Parker's previous phone duties had been assumed by these other positions. Moreover, the Respondent failed to show that comparable level duties of these other positions which did not involve the use of the phone could not have been assigned to the marriage license clerk position in order to maintain the classification strength of each of these positions. The Respondent failed to show hardship in this regard.
Finally, Respondent asserts that it would be a hardship to modify its business practices through the addition of office technology which would reduce its responsiveness to the public. For an office headed by an elected official, this is a legitimate consideration. However, it should first be noted that modifying the assigned duties of the marriage license clerk position would not require any addition of office technology. In addition, the persuasiveness of this assertion is weakened by the fact that the office already used a recorded phone message, not a live person, to relay basic information about marriage license applications and processing, and provided an opportunity for those who still had questions after hearing this recording to leave a message on an answering machine; and that, although the use of VCO technology for outgoing calls could require that the caller be placed on hold or leave a message for a return call, the office already placed callers on hold and returned phone messages. Moreover, Respondent did not prove that using options such as email would have been less responsive to the public, i.e., it is safe to assume that certain members of the public would prefer to communicate by email, and many of the Respondent's representations in this regard depend upon speculation. Speculation or theoretical difficulties are insufficient to sustain the Respondent's burden to show hardship. Roytek v. Hutchinson Technology, Inc., ERD Case No. 199903917 (LIRC Jan. 28, 2002), aff'd sub nom., Hutchinson v. LIRC, No. 02-3328 (unpublished, Ct. App. 2003).
Complainant also listed other positions in which she had an interest in bumping, and Respondent concluded that they could not accommodate her disability in these positions either. Although there were some flaws in Respondent's approach to accommodating Complainant in these positions, the commission interprets Complainant's representations through her attorney during the accommodation negotiation process as indicating that she was no longer interested, effective May 28, 1999, in these other positions. Complainant effectively took these positions off the table and, as a result, the commission does not believe that it's necessary to consider them further here.
The commission's decision is tailored to the unique set of facts under consideration here. The complainant had worked successfully for the respondent for many years despite her disability. The respondent had accommodated her disability by reassigning her phone duties to other staff. The respondent did not show that this accommodation had caused a hardship. The respondent did not show that continuing this accommodation, alone or in combination with certain technological additions, in the marriage license clerk position would cause a hardship. In the absence of such a showing, the commission concludes that the respondent failed to fulfill its duty of accommodation under the WFEA.
NOTE: The commission did not consult with the administrative law judge before reversing her decision because its reversal was not based on a different view as to witness credibility but instead on a differing interpretation of the applicable law.
Attorney Paul A. Kinne
Attorney Anna M. Pepelnjak
Appealed to Circuit Court. Affirmed July 2, 2004.
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(1)( Back ) The last phrase was added to this sentence to make it clear that the marriage license clerk position did not require the typing of large amounts of text, but instead single words or short statements to fill in blanks on a form.
(2)( Back ) The last sentence was added to this paragraph to more completely reflect the record in this regard.
(3)( Back ) The sentence including the quotation from the letter, and the sentence preceding it, were added to more completely reflect the evidence of record.
(4)( Back ) This sentence was added to more completely reflect the evidence of record.
(5)( Back ) The specific data was added to more completely reflect the evidence of record.
(6)( Back ) This sentence was added to clarify that the County Clerk's Office was no longer handling a type of call it had handled during Parker's tenure in the office.
(7)( Back ) The final four sentences in this paragraph were added to more completely reflect the evidence of record.
(8)( Back ) This paragraph of the ALJ's decision was deleted, and the new paragraph substituted, to more accurately reflect the evidence of record, and, in particular, Parisi's testimony in this regard.
(9)( Back ) The last sentence of this paragraph was added to more completely reflect the evidence of record.
(10)( Back ) This paragraph of the ALJ's decision was deleted, and the new paragraph substituted, to more concisely reflect the evidence of record.
(11)( Back ) This paragraph of the ALJ's decision was deleted, and the new paragraph substituted, to eliminate findings based on unsubstantiated hearsay and to clarify that the record only supports a conclusion that it was Parisi's impression that Nowak and Haupt had these concerns.
(12)( Back ) The word "Parker" was substituted for the word "Rowland" in order to correct an error.
(13)( Back ) The number of this finding was changed from 29 to 33 to correct an error. The numbering of subsequent findings was changed accordingly.
(14)( Back ) This sentence was added to more completely reflect the evidence of record.
(15)( Back ) The language of this paragraph was modified because the ALJ's findings were based on unsubstantiated hearsay evidence.
(16)( Back ) Although the Complainant has retired since her layoff, she contends that the circumstances precipitated by the Respondent's actions at issue here gave her no choice. Consequently, the commission is unable to conclude with certainty, based on the evidence of record, that reinstatement is not an appropriate remedy.
(17)( Back ) For the same reasons discussed in the preceding footnote, the commission is unable to find whether or when it is appropriate to cut off the accrual of the complainant's back pay award. If and when the commission's decision becomes final, and if the parties have difficulty resolving any issues that may arise with respect to the appropriateness of reinstatement and back pay, further proceedings may be ordered. See, Kaczynski v. WSR Corporation Whitlock Auto Supply, ERD Case No. 9350108 (LIRC Oct. 29, 1997).
(18)( Back ) Prior to the elimination of the hunting/fishing license responsibilities, three support staff (marriage license clerk, front desk receptionist, and elections specialist) were handling all four types of calls (hunting/fishing license, marriage license, referral to other offices, and elections). After the elimination of the hunting/fishing license responsibilities and, if phone duties were removed from the marriage license position to accommodate Parker's disability, two support staff would be handling the three remaining types of calls.