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

DIANNE M BARTLE, Complainant

SHARON A CONLON, Complainant

JACK LINKS BEEF JERKY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200205132, EEOC Case No. 26GA300423
ERD Case No. CR200205134, EEOC Case No. 26GA300425


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 Labor and Industry Review Commission makes the following:

FINDINGS OF FACT

1. The respondent, Jack Link's Beef Jerky, is a producer of a variety of meat snack foods and has a workforce of approximately 500 people at its facility located in Minong, Wisconsin. The respondent's production departments include processing, packaging, jerky and jerky chew. Jerky chew is a subdivision of the jerky department. The Minong facility also has a warehouse.

2. The jobs identified in the processing department were hanging raw meat on racks and cooking. Packaging jobs identified were filling pockets (breaking meat product into shorter pieces in order to fit into pockets (1) ) and taking bags of meat off a conveyor and placing them into boxes. The jerky department jobs identified included filling bags with meat products and sealing the bags. There was also work in this department that involved straightening plastic pockets that the meat products would go into. Jerky chew jobs identified were filling cans with meat products, labeling cans, urscheling meat (cutting the meat before it is made into jerky) and hammering (running jerky through a hammer mill to make it jerky chew). People in the warehouse were said to call orders, and grab cases and put them on pallets.

3. Complainant Dianne Bartle began working for the respondent in October 1994. She was hired to work in the packaging department filling pockets. Bartle performed this work until 1998. Apparently in 1996 Bartle was diagnosed as suffering from tendonitis that was causing the loss of strength in her arms and hands. In 1998 Bartle was diagnosed with bilateral carpal tunnel syndrome. She had surgery for this condition on her left wrist in June 1998 and surgery on her right wrist in July 1998. Bartle has continued to suffer from tendonitis and to experience pain and swelling with her left wrist since her surgery. Also, for approximately six or seven years Bartle has had back problems relating to her sciatic nerve. (Bartle also had rotator cuff surgery in 1999 but the surgery pretty much solved that problem.)

4. As a result of her various physical conditions, Bartle received the following work restrictions which became permanent sometime in 1997: No overhead work, no lifting over 10 pounds, working at waist level, having a stool to be able to sit at her workstation, and no working in excess of 40 hours per week.

5. The respondent accommodated Bartle with respect to her work restrictions. In 1998 the respondent assigned Bartle to working in clip strips, where she remained until the year 2000. The work that Bartle performed here was placing packages of meat products on plastic strips, such as you might find hanging in the stores of retailers. While performing work in clip strips Bartle also made "masters", which was taking cardboard and making it into boxes and then taping the boxes. Bartle also had restrictions on pushing or pulling when she was making the masters. Bartle also put packaged products into the masters. Once in a while Bartle worked in the warehouse to make masters for people working in the warehouse to package products. She also opened and repackaged boxes of faulty clip strips product that had been returned while in the warehouse.

6. In the year 2000 Bartle was assigned to the jerky/jerky chew departments but evidently was considered to be an employee of the jerky chew department. Bartle worked filling cans (normally done in jerky chew) in the jerky department. If Bartle was not needed in jerky chew she would work in the jerky department. Bartle worked some in the jerky department straightening the plastic pockets that the meat products would go into. Bartle remained in jerky/jerky chew, working the hours of 6 a.m. to 2:30 p.m., Monday through Friday, until the latter part of January 2002, when she was laid off.

7. Complainant Sharon Conlon began working for the respondent in April 1998. She was hired to work in the jerky department where she filled bags with meat and ran the chambers, a procedure that sealed the bags of meat. Conlon occasionally also worked in the packaging department where she took bags of meat off a conveyor, put them into boxes and then placed the boxes on a skid.

8. In late 1999, Conlon was diagnosed as having sustained a work-related rotator cuff tear. Conlon had surgery for this condition in January 2000. She returned to work with a restriction of light duty in April 2000, initially working four hours per day, then six hours per day in June or July and eventually eight-hour work days in October 2000. Conlon continued to have problems with her right shoulder after her surgery. She continued to experience pain in her shoulder, her shoulder "froze up" when she was in cold temperatures and she had no strength in her arm or hand.

9. As of October 2000 Conlon had the following permanent restrictions with respect to her right arm: No overhead reaching, no repetitive motion, no lifting over ten pounds, no jerking, no pushing and no pulling. Conlon also was not to work more than eight hours per day and forty hours per week. In addition, apparently also as of October 2000, she had the restriction that she "Must be able to move to room over 55 or allowed to walk to warm up tight muscles as needed." As a practical matter, however, Conlon was able to work where the temperature was at least 50 degrees if she wore warm enough attire such as a light jacket or sweatshirt.

10. The respondent accommodated Conlon with respect to her work assignments. In the period from when she returned to work in April 2000 until January 2001, Conlon was assigned to the jerky department but floated among various departments. This included working some in clip strips clipping four-ounce bags of meat products on strips, in packaging labeling bags and taking dates off packages with ink removal, in the warehouse labeling boxes and separating packages of beef sticks, in processing where she hung meat with her left arm, and in jerky chew filling and labeling cans of meat. In addition, beginning sometime late during the summer of 2001, the respondent provided Conlon a chair to sit on because she had bursitis in her hip. From January 2001 until the time of her layoff in late January 2002, Conlon performed work primarily in jerky chew, where she worked filling cans and labeling cans from 6 a.m. until 2:30 p.m., Monday through Friday.

11. Bartle and Conlon learned that their layoff was permanent on February 7, 2002. On that date they received written notice from the respondent stating that "due to current economic conditions and changes in staffing needs, your position has been eliminated and you are laid off from your employment with Jack Links Beef Jerky."

12. Early in 2002 the respondent determined that it needed to downsize because its sales were flat and its inventories were growing, particularly in the jerky department. In addition, in jerky chew the respondent was planning to implement a new machine that would automatically fill the cans that jerky chew department employees performed manually, and also some tasks that were performed by jerky department employees. The labeling of the cans would still have to be performed manually by the employees. The new machinery was supposed to be in place in February 2002.

13. Karl Paepke was the plant manager at the time the decision was made to lay off employees. Pamela Thornburg was the respondent's HR director. Michael Jordan was the manager of the jerky/jerky chew departments.

14. The decision of who to lay off was left to the discretion of the department managers in each of the affected departments. Paepke told the managers that the versatility of the employee should be considered in the layoff process.

15. Jordan learned that he needed to reduce the jerky/jerky chew departments by a total of 12 employees. Jordan, in conjunction with Tabitha Taylor, supervisor of the jerky chew department, made the decision as to who would be laid off. Employee versatility was the primary consideration that Jordan used in making the decision of who to lay off. According to Jordan, the only reason Bartle was chosen for layoff was that she had come from the packaging department (where she could not work because of her wrists) and couldn't go back to that department, and that the sole factor for laying off Conlon was that she could not work in a cold environment.

16. Jordan had been informed of Bartle and Conlon's work restrictions when they came into his departments.

17. A total of 21 employees were laid off during the months of January and February 2002. The employees laid off included six employees in the corporate office, three in the maintenance department, six in the jerky department and six in the jerky chew department. Bartle and Conlon and two other employees in the jerky chew department had work restrictions. All four of the jerky chew employees that had work restrictions were laid off.

18. As part of the layoff process, Jordan never asked Bartle or Conlon what jobs they could perform in other departments.

19. In addition to the six employees that were retained in the jerky chew department after the layoff, three additional employees were transferred into the jerky chew department. Thus, there were a total of nine employees working in the jerky chew department after the layoff.

20. Prior to January/February 2002, the jerky and jerky chew departments consisted of a combined total of eighty-eight employees. After the layoffs the combined total was about seventy-six employees. Also, prior to the layoffs the jerky department operated 24 hours a day, seven days a week. There were four 12-hour shifts run in the jerky department. A first shift ran from 5 a.m. to 5 p.m., Sunday through Tuesday and every other Wednesday, with a second shift that followed from 5 p.m. to 5 a.m. A second first shift ran from 5 a.m. to 5 p.m., every other Wednesday and Thursday through Friday, with another second shift that followed from 5 p.m. to 5 a.m. After the layoffs, the jerky department ran one 8-hour first shift and one 8-hour second shift. The jerky chew department only ran a day shift from 6 a.m. to 2:30 p.m. prior to the layoffs, and jerky department employees would be utilized if people were needed in jerky chew after 2:30 p.m.

21. The respondent found it necessary to recall employees that had been laid off in January and February of 2002 because after the layoffs its sales volume increased dramatically in a short period of time, and because the new machinery that was expected to be in place in February did not go into place until around June 2002 and because it did not perform to the respondent's expectations.

22. On June 21, 2002, Thornburg sent letters to Bartle and Conlon offering them full-time positions in the jerky chew department. The letters advised them that the position was scheduled from Tuesday through Saturday with the shift starting at 6 a.m., and to report to work "no later than 3 days after receipt of this letter."

23. Employees with and without disabilities were recalled to work the Tuesday through Saturday shift in the jerky chew department. The days of work were changed to Tuesday through Saturday because coverage was needed for those days more so than Monday through Friday.

24. Bartle returned to work for the respondent somewhere between June 24 and 26, 2002. Bartle has performed work relating to the respondent's new machinery. She has also labeled cans, a function that the new machinery does not perform.

25. Conlon received Thornburg's letter on Saturday, June 22, 2002, and then called Thornburg on Monday, January 24. Conlon told Thornburg that she would like to come back to work but that she could not report back by the three-day deadline because she was babysitting for her daughter. Conlon told Thornburg that she thought she could come back the following week. Conlon testified that Thornburg replied that she didn't know if the respondent could "work with that" and would get back to Conlon. Around three days later Conlon called the respondent and left a message for Thornburg to call her. Thornburg did not return Conlon's call. Thornburg testified that her failure to contact Conlon was just an oversight, something she had forgotten about. Conlon never made any further attempt to contact Thornburg about returning to work, and has not returned to work with the respondent.

Based upon the above FINDINGS OF FACT, the Labor and Industry Review Commission makes the following:

CONCLUSIONS OF LAW

1. The respondent, Jack Link's Beef Jerky, is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant, Dianne M Bartle, is an individual with a disability within the meaning of the Act.

3. The complainant, Sharon A Conlon, is an individual with a disability within the meaning of the Act.

4. There is probable cause to believe that the respondent discriminated against Bartle on the basis of disability in regard to layoff (i.e., termination of employment) in violation of the Act.

5. There is probable cause to believe that the respondent discriminated against Conlon on the basis of disability in regard to layoff (i.e., termination of employment) in violation of the Act.

6. There is not probable cause to believe that the respondent discriminated against Bartle on the basis of disability in regard to terms and/or conditions of employment in violation of the Act.

7. There is not probable cause to believe that the respondent discriminated against Conlon on the basis of disability in regard to terms and/or conditions of employment in violation of the Act.

8. There is not probable cause to believe that the respondent discriminated against Bartle on the basis of disability in regard to compensation in violation of the Act.

Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, the Labor and Industry Review Commission hereby issues the following:

ORDER

1. That insofar as Bartle's complaint alleges unlawful discrimination on the basis of disability in regard to terms and/or conditions of employment and compensation, those complaint allegations are dismissed. Bartle's complaint allegation of unlawful discrimination on the basis of disability in regard to layoff (i.e., termination of employment) is remanded to the Equal Rights Division for a hearing on the merits.

2. That insofar as Conlon's complaint alleges unlawful discrimination on the basis of disability in regard to terms and/or conditions of employment, that complaint allegation is dismissed. Conlon's complaint allegation of unlawful discrimination on the basis of disability in regard to layoff (i.e., termination of employment) is remanded to the Equal Rights Division for a hearing on the merits.

Dated and mailed February 9, 2006
bartldi . rpr : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

In a disability discrimination claim under the WFEA a complainant must show that: (1) she or he is an "individual with a disability" within the meaning of Wis. Stat. § 111.32(8), and that (2) the employer took one of the actions enumerated in Wis. Stat. § 111.322 (e.g., terminated the complainant's employment or otherwise discriminated against the complainant in her or his compensation or terms or conditions employment). Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 42. 264 Wis. 2d 200, 225, 664 N.W.2d 651; Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998). In addition to the above showings, a complainant has the initial burden of proving that a reasonable accommodation is available. Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, 2, 35, 273 Wis. 2d 394, 398, 416, 682 N.W.2d 343. Should the complainant meet the above burdens, the employer has the burden of establishing that: (1) no reasonable accommodations could be made to enable the complainant to perform her or his job, or (2) the employer would experience hardship in making such accommodations. Hutchinson Technology, 2004 WI 90, 2, 35, 273 Wis. 2d at 398, 416.

Bartle and Conlon were individuals with a disability within the meaning of the Act. Bartle suffers from tendonitis in her arms and hands, has experienced pain and swelling with her left wrist since undergoing carpal tunnel surgery and she also has back problems relating to her sciatic nerve. Bartle has work restrictions that she is not to do overhead work, lift over 10 pounds, work over 40 hours per week and she is to have a stool to be able to sit at her workstation. Conlon sustained a work-related rotator cuff tear on her right shoulder and underwent surgery but continues to experience pain in her shoulder, it freezes up when in cold temperatures and she has no strength in her arm or hand. Conlon has work restrictions that she is not to do overhead reaching, repetitive motions, jerking, pulling, pushing, lifting over 10 pounds, working more than eight hours per day and forty hours per week and must be able to work where the temperature is at least 55 degrees (although she can work in a temperature of at least 50 degrees).

Bartle and Conlon's "versatility", i.e., ability to work in all of the departments, was the primary criterion (2)  used by the respondent to select them for permanent layoff. However, the complainants' versatility was limited due to their physical impairments and medical restrictions. Thus, the respondent terminated Bartle and Conlon's employment on the basis of their disability.

The complainants assert that assuming it's concluded that the ability to perform all jobs in the different production departments was a job-related responsibility the ALJ's decision is in error under reasonable accommodation principles. The complainants assert that the ALJ misapplied the law and the burdens applicable to reasonable accommodation determinations. The complainants cite the following language at page 14 of the ALJ's memorandum opinion:

In this case, the Complainants' (sic) have failed to establish that there is probable cause that, even with reasonable accommodation, they were as versatile or more versatile than any of the employees that were retained.

The commission is troubled by the ALJ's statement. In Target Stores the court stated:

Reading the two paragraphs of 111.34 (3)  together, once the employee has met the first two showings, the employer must show either that a reasonable accommodation would pose a hardship-§ 111.34(1)(b), or that, even with a reasonable accommodation, the employee cannot "adequately undertake the job-related responsibilities"-§ 111.34(2)(a).

217 Wis. 2d at 10. (Emphasis added.)

Subsequently, in Hutchinson Technology, after concluding that a complainant also has the initial burden of proving that a reasonable accommodation is available, the Wisconsin Supreme Court indicated that the employer has the burden of establishing that: (1) no reasonable accommodations could be made to enable the complainant to perform her job, or that it would experience hardship in making such accommodations. 2004 WI 90, 35, 273 Wis. 2d at 416. While the court uses somewhat different language here than that cited in Target Stores, this does not amount to a substantive change in what has to be proven or on whom the burden falls to prove it. The employer still has the burden of proving that a reasonable accommodation does not exist that would allow the employee to perform her or his work.

The commission concludes that the complainants have met their initial burden of proving that a reasonable accommodation was available that would have avoided the need for their layoff but that the respondent has not met its burden of establishing that no reasonable accommodations could have been made to enable the complainants to perform their jobs, or that it would have experienced hardship in making such accommodations.

The complainants have pointed out that two forms of accommodation were available. First, the complainants note that the respondent simply could have not called them into work, or sent them home if there was not enough work available in the jerky chew department, as had been done in the past without any problem. The complainants note that essentially this would have been a modification of the length of their shift or hours based upon the respondent's business needs. Alternatively, the complainants note that the respondent could have merely modified their job duty of working in other jobs if and when there was not enough work in the jerky chew department by excusing them from transferring to jobs in other departments they could not work in because of their disabilities. For Bartle this would have been an exemption from working in the packaging area and for Conlon this would have been an exemption from working in temperatures below fifty degrees.

The evidence shows that the complainants had performed jobs in a number of different departments despite their disabilities. Bartle had worked in the clip strips area placing packages of meat products on plastic strips, and she had made masters and put packaged products into the masters while there. Bartle had worked some in the jerky department straightening the plastic pockets that the meat products would go into. Bartle on occasion had also worked in the warehouse making masters for people working in the warehouse to package products, and she had opened and repackaged boxes of faulty clip strips products that were returned. Conlon had worked some in the clip strips area clipping four-ounce bags of meat products on strips, in packaging labeling bags and taking dates off packages with ink removal, in the warehouse labeling boxes and separating packages of beef sticks, and in processing where she hung meat with her left arm.

The complainants have thus met their initial burden of proving that a reasonable accommodation was available.

The burden therefore shifted to the respondent to prove that no reasonable accommodations could have been made to enable the complainants to perform their jobs, or that it would have experienced hardship in making such accommodations.

The respondent has asserted that due to its economic position at the time of the reduction in force further accommodations were unreasonable and would have posed an unjustified hardship on it.

The respondent indicated at the hearing that the employees retained in the jerky chew department were required to be "versatile" because it was not known when they would be needed to go to another department. However, as noted above, both Bartle and Conlon had performed jobs in a number of different departments despite their disabilities. Furthermore, the evidence indicates that the complainants were never afforded the opportunity to discuss or review reasonable accommodation alternatives with the respondent before the respondent chose them for layoff. The evidence thus fails to show that no reasonable accommodations could have been made to enable the complainants to perform their jobs.

In its brief to the commission the respondent asserted that retaining the complainants would have posed a financial hardship on the respondent. The respondent asserts that retention of the complainants would have required the retention of additional employees to perform the functions that the complainants could not. The problem, however, is that the respondent did not offer any evidence at the hearing to support this assertion. While the respondent may have been experiencing an economic downturn and was required to lay employees off, there is no evidence in the record to support a showing that retention of the complainants would have caused it financial hardship. The evidence thus fails to show that the respondent would have experienced hardship in making any necessary accommodations for the complainants.

Bartle's claim of discrimination on the basis of disability with respect to terms or conditions of employment is that when the respondent recalled her to work in the jerky chew department the respondent assigned her to work on a Tuesday through Saturday shift, whereas she had previously worked a Monday through Friday shift. However, the evidence shows that employees with and without disabilities alike were recalled to work the Tuesday through Saturday shift in the jerky chew department. Moreover, the evidence shows that the reason for the change in shift days was to provide better coverage for the work that needed to be accomplished.

It is not at all clear, but it appears that the reason Conlon is claiming discrimination on the basis of disability with respect to "terms or conditions of employment" is because after telling Thornburg that she needed to arrange for a babysitter and that she thought she might be able to return to work the following week, Thornburg never got back to her as she (Thornburg) said she would and Thornburg did not call her back after the subsequent message she left for Thornburg. Assuming for purposes of argument that Conlon's claim is cognizable as a claim for discrimination in terms or conditions of employment, however, this claim fails because Conlon presented no evidence showing that any non-disabled employee received more favorable treatment with respect to returning to work. Furthermore, it appears that all 3 of the other employees with work restrictions that were recalled to work returned to work with the respondent.

Finally, Bartle's allegation of discrimination with respect to compensation was not that she had been discriminated against on the basis of disability with respect to the compensation she received for her work compared to a non-disabled employee, but simply that she had lost pay between the time of her layoff (i.e., termination) and return to work for the respondent. Bartle must first ultimately prevail on her termination claim on the merits before any possible entitlement to compensation for lost wages that she incurred as a result of her February 7, 2002 termination of employment. The ALJ properly dismissed Bartle's claim of discrimination with respect to compensation at the close of the complainants' case.

cc:
Attorney Peter M. Reinhardt
Attorney Joseph Dreesen



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Footnotes:

(1)( Back ) Apparently this was the same job that Jordan identified as "ripping up a safe". T. 99. Jordan testified that this was long pieces of meat that needs to be broken into smaller pieces for them to pack it. Id.

(2)( Back ) In fact, Jordan testified that the only reason Bartle was chosen for a layoff was that she had come from the packaging department (where she could not work because of her wrists) and couldn't go back to that department, and that the sole factor for Conlon's layoff was that she could not work in a cold environment.

(3)( Back ) The two paragraphs in question provide as follows: Employment discrimination because of disability includes "Refusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business." Wis. Stat. 111.34(1)(b). "Notwithstanding s. 111.322, it is not employment discrimination because of disability to refuse to hire, employ, admit or license any individual, to bar or terminate from employment, membership or licensure any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment, membership or licensure." Wis. Stat. 111.34(2)(a).

 


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