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

SHARON RAULS-HEPP, Complainant

J L FRENCH CORPORATION, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200204080, EEOC Case No. 26GA202275


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 agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In paragraphs 4 and 5 of the administrative law judge's FINDINGS OF FACT the word "guaging" is deleted and the word "gauging" is substituted therefor.

2. The administrative law judge's MEMORANDUM OPINION is deleted.

DECISION

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

Dated and mailed September 30, 2005
raulssh . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

The Wisconsin Fair Employment Act (hereinafter "Act") defines the term "individual with a disability" as an individual who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
(b) has a record of such an impairment; or
(c) is perceived as having such an impairment.

Wis. Stat. § 111.32(8).

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 has degenerative arthritis of the left ankle joint, an impairment which constitutes a lessening or damage to a normal bodily condition. In her brief to the commission the complainant contends that her arthritis places a limitation on her activities, noting that her doctor testified in a pre-hearing deposition that she is permanently limited in the amount of heavy lifting, climbing ladders, and working on a steep incline she can manage, and with respect to the speed of her ambulation. The complainant's argument is unpersuasive. It is doubtful that heavy lifting, climbing ladders, and working at a steep incline could be considered "life's normal functions" or "major life activities," and the complainant did not demonstrate that a partial limitation on her ability to perform those tasks makes achievement unusually difficult for her. In fact, the complainant's own testimony indicates that the only limitations on her daily activities were that she had to put her foot up when washing dishes and rest periodically when vacuuming. These are not the types of substantial limitations contemplated by the statute and, moreover, they appear to have been in effect only after the complainant's surgery, and not as a permanent consequence of the underlying condition.

The complainant also argues that her impairment limits her capacity to work in that she was required to rest her foot for twenty minutes of every hour. Again, this argument fails. It is clear from the record that the complainant's arthritis had no effect on her capacity to work prior to her surgery. The complainant began her employment with the respondent in March of 2001, at which point she had no work restrictions. The complainant underwent ankle surgery on March 19, 2002, and was off of work until August 20, 2002. She returned to work with no restrictions, but found she had difficulty performing the job because of pain in her ankle. The complainant's doctor then issued a restriction in effect until her next appointment on December 23, 2002. The complainant testified that she considered the restriction to be part of the recovery process from her surgery, and it is clear that the limitation on her capacity to work was envisioned as a temporary one. Indeed, the complainant stopped seeing her doctor in April of 2003, and had no restrictions placed on her activities thereafter.

The commission has consistently held that disabilities which are merely temporary do not fall within what is intended to be covered by the Act's prohibition on discrimination because of disability. See, Lockington v. LaCrosse Rubber Mills (LIRC, April 8, 1981); Wollenberg v. Webex, Inc. (LIRC, Nov. 8, 1991); Reinke v. Pick 'N Save Mega Food Centers (LIRC, Jan. 28, 2000); Falk v. WIPC, LLC (LIRC, Dec. 18, 2003); Erickson v. Quad Graphics, Inc. (LIRC, May 25, 2004), aff'd. No. 04-CV-447 (Wis. Cir. Ct. Washington County Oct. 27, 2004), aff'd. 2005 WI App 208 16 (ordered published in the official reports). While in this case the complainant's impairment is permanent, there is no limitation on her capacity to work as a direct result of that impairment. Instead, the complainant had a temporary restriction related to her recent ankle surgery, which would no longer be in effect after she completed her recovery from the surgical procedure. Based on the foregoing, the commission concludes that the complainant has an impairment, but not one which makes achievement unusually difficult for her or limits her capacity to work.

The commission has also considered whether the complainant established that the respondent perceived her as having a disability. Although in the discharge letter the respondent indicated that it was not clear whether or when the complainant's restrictions would be lifted, the fact that the respondent was uncertain as to how long the restrictions would last does not mean that it regarded them as permanent or that it believed they were because of a disability. The complainant had only been employed by the respondent for about a year prior to her medical leave of absence, and the respondent was not necessarily aware of her history of arthritis, which had not resulted in any medical restrictions prior to her surgery. The record establishes only that the respondent knew the complainant had had surgery and was taking some time to recover from it. This, without more, does not warrant a conclusion that the respondent perceived the complainant as being disabled.

Even if the commission was to find that the complainant established she has a disability within the meaning of the Act, there would be no basis to conclude that the respondent refused to provide her with a reasonable accommodation that would have enabled her to adequately undertake her job-related responsibilities.

On August 30, 2002, the complainant provided David Leffin, the respondent's health and safety manager, with a note from her doctor which indicated it was medically necessary that she be permitted to sit down for twenty minutes out of every hour. Mr. Leffin reviewed the note and told the complainant the respondent could not accommodate that restriction. The complainant stated she did not think it would be able to, but had to check. Later that same day the complainant submitted another doctor's note which was identical to the previous one, except that, instead of specifying she must sit down, the new restriction stated it was medically necessary that she be permitted to "rest her foot" for twenty minutes out of every hour. The doctor's note did not explain whether or how this restriction differed from the original one, and the complainant did not provide the respondent with any explanation as to the second note. The respondent told the complainant that this was basically the same as the first excuse, and that there was nothing it could do. The complainant offered no response to this and made no suggestion as to how she could perform her duties, given her restrictions.

On September 6, 2002, the respondent sent the complainant a letter notifying her that it was terminating her employment. The letter stated that, given her medical restrictions, the complainant was not able to perform the essential functions of her job, and that the respondent was not aware of any reasonable accommodation it could undertake that would allow her to do so. The respondent indicated that it was unknown when or if her condition would change such that she could perform the job. The respondent stated that it was terminating her employment effective September 13, 2002, and that if in the future she could perform the job, she should contact it to reapply. Finally, the respondent indicated that if its information was not correct or if the complainant wished to supply additional information for its consideration, she should do so before September 13, 2002. The complainant did not do so, and made no further contact with the respondent thereafter.

The complainant now contends that the respondent could have accommodated her in a variety of ways. First, she contends that she could have been accommodated by a permanent assignment to the target gauger or the porosity check functions, both of which the complainant asserts could be performed while resting her foot by propping it up on a bar, a chair, or a bucket or by leaning her knee against a table or object with her foot off the ground. This argument fails. The respondent stated that none of its general production employees are assigned to one work station on a permanent basis and that work assignments vary depending upon the production needs of the company, and the evidence did not establish that it would have been reasonable or even possible for the respondent to permanently assign the complainant to a single job. Moreover, even assuming the respondent would be able to do so, the record failed to demonstrate that the complainant could perform either of the jobs in question, given her restrictions. John Wagner, a company supervisor who has been with the respondent for twenty years, testified that it is not possible to stand in one place while doing target gauging, and that the only two target gauger tasks that are performed standing in one place take about two and three minutes per hour, respectively, to perform. Thus, there is no way in which the target gauger position would have afforded the complainant an opportunity to rest her foot for twenty minutes an hour. While in her brief the complainant suggests that the target gauger position could be modified to remove or reduce "banding" duties, which the complainant had difficulty performing, it appears from the record that, even without banding duties, the job still would require a substantial amount of walking and would not permit the complainant to rest her foot twenty minutes an hour.

Permanent assignment to the porosity check position, assuming such permanent assignment could be made, provides no better alternative. The porosity inspection job requires the employee to stand for an eight-hour period, and is performed in a small space that would not accommodate a chair or stool and which cannot be physically modified to do so. Mr. Wagner testified that he did not believe that, given the tight space, it would be comfortable to work with a foot up or that the complainant would still be able to perform the job in that manner. It is not at all clear that a worker resting one foot would have the stability to safely perform a job which requires inspecting objects while standing in a tight space.

The complainant also makes an argument that the respondent could have accommodated her by reorganizing her work area to cut down the amount of movement and increase the amount of time she could rest her foot. However, the complainant has not elaborated upon this assertion or explained how such a reorganization could be accomplished, and the commission sees no reason to believe that any such accommodation would have been available.

Finally, the complainant contends that the respondent could have transferred her to a light duty job, as it does for employees with worker's compensation injuries. However, the record indicates that the respondent does not actually have any light duty positions regularly available and that the jobs it offers employees with worker's compensation injuries are essentially "make work" positions. While the respondent might be obligated to modify the complainant's existing job or to transfer her to another position it has available, provided it could do so without hardship, it is not obligated to create a job for the complainant. The fact that it has done so for people injured on the job--whose salaries it must pay whether or not they are at work--does not alter this.

The employee has the initial burden of proving that a reasonable accommodation is available. Hutchinson Technology, Inc. v. LIRC and Roytek, 273 Wis. 2d 394, 416, 682 N.W.2d 343 (2004). The complainant has failed to meet this burden. Although the complainant asserts that there are many ways in which she could be accommodated, she has not established that any of the proposed accommodations would have allowed her to perform work for the respondent while remaining within her restrictions. Moreover, the commission believes that any doubts as to the workability of the proposed accommodations should be resolved against the complainant where, as here, it was not readily apparent that any accommodation would have been available, the respondent told the complainant it did not believe she could be accommodated, and the complainant never disputed this or offered suggestions as to ways in which she could perform the job. It is difficult to argue that the respondent refused to provide the complainant with accommodations that she never specifically requested and whose availability was not obvious, particularly where she stood by passively as the respondent told her there was nothing it could do.

Finally, the commission notes that all of the complainant's proposed accommodations envision work that would not permit her to sit for twenty minutes an hour, but merely to elevate her foot or take weight off of it while standing, yet the original doctor's excuse the complainant provided to the respondent specified that she needed to sit for twenty minutes of every hour. Although a subsequent note stated only that the complainant needed to "rest her foot" for twenty minutes, given the more detailed description contained in the original restriction and the lack of explanation as to the slightly altered wording in the second, the respondent would have had no reason to assume that the sitting restriction was not still in place. Indeed, the respondent indicated that it regarded the second note as essentially the same as the first, and concluded that the complainant would need to sit for twenty minutes and elevate or otherwise take the weight off her foot. Consequently, the accommodation the respondent was led to believe the complainant needed was one which would enable her to sit for twenty minutes, an accommodation which the complainant apparently concedes was unavailable. Given this circumstance, even if the complainant could now demonstrate that there was an accommodation that would have enabled her to perform the job while standing and resting her foot on a stool or other object, the commission does not see how the respondent could be at fault for failing to offer it.

For all the reasons set forth above, the commission agrees with the administrative law judge that the complainant did not establish she is an individual with a disability within the meaning of the Act and, in the alternative, that there was no reasonable accommodation available for her which the respondent refused to provide. Accordingly, the dismissal of the complaint is affirmed.

cc:
Attorney William P. TeWinkle
Attorney Andrew A. Jones



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