Crystal Lake Cheese Factory v. Labor and Industry Review Commission
Annotate this Case
Download PDF
2003 WI 106 SUPREME COURT CASE NO.: OF WISCONSIN 02-0815 COMPLETE TITLE: Crystal Lake Cheese Factory, Petitioner-Appellant-Petitioner, v. Labor and Industry Review Commission and Susan Catlin, Respondents-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 290 Reported at: 258 Wis. 2d 414, 654 N.W.2d 286 (Ct. App. 2002 Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 28, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Barron James C. Eaton JUSTICES: CONCURRED: DISSENTED: July 11, 2003 PROSSER, J., dissents (opinion filed). WILCOX and SYKES, JJ., join dissent. NOT PARTICIPATING: ATTORNEYS: For the petitioner-appellant-petitioner there were briefs by Robert H. Duffy, Sean M. Scullen, and Quarles & Brady LLP, Milwaukee, and oral argument by Robert H. Duffy. For the respondent-respondent, Labor and Industry Review Commission, the cause was argued by David C. Rice, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general. For the respondent-respondent, Susan Catlin, there was a brief by Monica M. Murphy and the Wisconsin Coalition for Advocacy, Milwaukee, and oral argument by Monica M. Murphy. An amicus curiae brief was filed by Melissa A. Cherney and Chris Galinat, Madison, on behalf of the Wisconsin Education Association Council. An amicus curiae brief was filed by Rebecca L. Salawdeh and Urban Taylor & Stawski, Ltd., Milwaukee; Patrick O. Patterson and Law Office of Patrick O. Patterson, S.C., Fox Point; and Patricia A. Lauten and The Schroeder Group, S.C., Waukesha, on behalf of the Survival Coalition of Wisconsin An amicus curiae brief was filed by Francis X. Sullivan, William C. Williams, and Bell, Gierhart & Moore, S.C., Madison, on behalf of the Wisconsin Cheese Makers Associations, Inc., and Wisconsin Manufacturers and Commerce, Inc. An amicus curiae brief was filed by Paul A. Kinne, Madison, on behalf of the Wisconsin Academy of Trial Lawyers. 2 2003 WI 106 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 02-0815 (L.C. No. 01 CV 289) STATE OF WISCONSIN : IN SUPREME COURT Crystal Lake Cheese Factory, FILED Petitioner-Appellant-Petitioner, v. JUL 11, 2003 Labor and Industry Review Commission and Susan Catlin, Cornelia G. Clark Clerk of Supreme Court Respondents-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 N. PATRICK CROOKS, J. Affirmed. This is a review of a decision of the Court of Appeals, District III,1 which affirmed an order of the circuit court of Barron County, the Honorable James C. Eaton presiding. The circuit court affirmed a decision of the State of Wisconsin Labor and Industry Review Commission (LIRC), which reversed an order of Administrative Law Judge (ALJ) Gary Olstad. LIRC determined that Susan Catlin (Catlin) was an individual with a disability within the meaning of the Wisconsin 1 Crystal Lake Cheese Factory v. LIRC, 2002 WI App 290, 258 Wis. 2d 414, 654 N.W.2d 286. No. Fair Employment Act (WFEA), 02-0815 Wis. Stat. § 111.31-.395 (1999- 2000),2 and that Crystal Lake Cheese Factory had discriminated against her based on her disability within the meaning of the WFEA. LIRC found that Crystal Lake's refusal to modify Catlin's job duties to exempt her from performing the heaviest physical tasks, and to make physical modifications to the work place, constituted the denial of a reasonable accommodation, which it could have provided without hardship. ¶2 We are presented with the following issues: (1) whether LIRC reasonably interpreted Wis. Stat. § 111.34(1)(b)3 and § 111.34(2)(a)4 of the WFEA, when it found there was a 2 All references to the Wisconsin Statutes are to the 19992000 version unless otherwise noted. 3 Wisconsin Stat. § 111.34(1)(b) provides: (1) Employment discrimination because includes, but is not limited to: of disability (b) 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. 4 Wisconsin Stat. § 111.34(2)(a) provides: 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. 2 No. 02-0815 reasonable accommodation Crystal Lake could have provided its former employee, Catlin, without hardship; (2) whether Crystal Lake was denied due process by LIRC's failure to consult with the administrative law judge; (3) whether there was substantial and credible evidence to support the factual findings made by LIRC, upon which reasonable Catlin, it based accommodation without its decision Crystal hardship, Lake that could within there have the was a provided provisions of Wis. Stat. § 111.34(1)(b) and § 111.34(2)(a). ¶3 We affirm the decision of the court of appeals. Accordingly, we hold that requiring Crystal Lake to modify the job duties workplace of Catlin and was not accommodations, she make physical unreasonable. would have modifications With the such ability to to the reasonable undertake, adequately, her job-related responsibilities. ¶4 Next, we hold that Crystal Lake was not denied due process when LIRC, prior to reversing the ALJ's holding, failed to consult with the ALJ. not hinge on issues of We hold that since LIRC's findings did witness credibility, LIRC was not required to confer with the ALJ, and that there was therefore no violation of Crystal Lake's due process rights. ¶5 credible Finally, evidence we in hold the that record there to was justify substantial LIRC's and findings. There was substantial evidence to show that Crystal Lake could have made reasonable accommodations for Catlin, and Crystal Lake has failed to meet its burden 3 of establishing that such No. 02-0815 reasonable accommodations for Catlin would create hardship on it. I. FACTUAL BACKGROUND ¶6 Cheese In August 1995 Catlin was hired by the Crystal Lake Factory wholesale to work department in its consisted wholesale of four department. positions: The department head, cheese cutter, cryovacer (shrink-wrapping or bagging and sealing the wholesale cheese), department and labeler. were to The cut main duties cheese quantities and sizes according to orders. into of the specified The cheese was then packaged and sealed, labeled, and boxed for shipping. Catlin was initially hired as a cheese cutter, but was later promoted to department head of the four-person department. ¶7 A typical day for Catlin started with her making calculations concerning the weight of the different cheeses that had to be cut, based on the orders. This took about an hour. Next, she made up labels and put them on the boxes that the orders went into. She would pull the boxes from the back, make the boxes up and put the labels on them. Meanwhile, the cutter would be cutting the cheese and placing it on the table. After the cheese was placed on the table, it was bagged and cryovaced. The cheese was bagged, sealed, and put in a basket. then had to be dipped in a pot of hot water. The basket The packages of cheese were then dried off and labeled, weighed on a scale, priced, and boxed. ¶8 All four workers in Crystal Lake's wholesale department were cross-trained in all four positions within the 4 No. 02-0815 department, and all were capable of assisting one another when an employee fell behind or when the department was busier than usual. As the department head, Catlin was required to gather orders and create an order list specifying the sizes and types of cheese that needed to be cut for that day. other administrative duties, label, and box the cheese. Catlin was In addition to required to weigh, She would also price boxes and packages, assist in the assembling of boxes, place the packages on pallets, and move them into the cooler for pickup. Catlin also assisted the other members of her department with their duties, as needed, to help control the flow of work. ¶9 In November 1996 Catlin was involved in a non-work related automobile accident that left her a quadriplegic, though she eventually regained partial use of both of her arms. now required to use a wheelchair to move around. She is During her hospitalization and ensuing rehabilitation period, Catlin filed for and received full disability benefits. ¶10 In September 1997 Catlin decided that she was ready to return to work, so she contacted Tony Curella (Curella), the president of Crystal Lake, to inquire about the circumstances of her resuming subsequently consultant her position hired of Genex accommodations would David as department Johnson Services, be needed head. (Johnson), Crystal a management to determine what types in order allow a to Lake of person confined to a wheelchair to perform the duties Catlin's position required. Curella had told Johnson that the department head had to be able to perform all of the functions in the wholesale 5 No. department. any 02-0815 Also, no one from Crystal Lake ever gave Johnson information wheelchair. about Catlin, other than that she used a Ultimately, Johnson found that Catlin could not have been reasonably accommodated, as a person with Catlin's disability would be unable to perform all the tasks required of her as the department head (i.e., she was unable to perform all the functions department). of all four positions in the wholesale More specifically, Johnson noted that Catlin would have difficulty pulling and stocking inventory because of weight and the height of the storage area up to seven feet above the floor. Crystal Lake therefore concluded, based on the report from Johnson, that it could make no reasonable accommodations for Catlin. ¶11 In October 1999 Catlin asked Crystal Lake to reconsider its decision, and in the meantime, she hired her own expert, Jeffery Annis (Annis) of the UW-Stout Assistive Technology and Assessment Center, to determine the feasibility of her returning to work as department head. At the time of this assessment, Catlin's initiated the job by wholesale no longer Catlin department existed. found that had been Regardless, Catlin eliminated the could and assessment have been accommodated, if certain physical changes had been made in the workplace, and if her job had been modified so that she would not have been required to perform those physical aspects of her job that she was no longer able to perform. ¶12 Like Johnson, Annis found that Catlin would be unable to perform some of the duties of her position that required 6 No. 02-0815 climbing, lifting, or performance in a standing position. For example, she could not lift 40-pound blocks of cheese or reach cheese stored on a high shelf. Nevertheless, the assessment stated that she was still capable of performing most of her jobrelated duties. Due to the inability to modify some of the above job duties, the assessment suggested that an easier way to accommodate Catlin would be to make her job more clerical, and eliminate many of the physical duties. The assessment recommended that Catlin's job duties be modified so that as a lead person she need do only the paperwork and final packaging, along with filling out invoices, receipts, and packing lists. Both before Catlin's accident and at the time she attempted to return to work, her mother and her sister were employed in the wholesale department as part of the same team that Catlin led. ¶13 resume When Catlin realized that she would not be allowed to her position as the department head at Crystal Lake Cheese Factory, she filed a charge of disability discrimination with the United States Equal Employment Opportunity Commission, and the charge was of the Wisconsin cross-filed with the Equal Rights Division Department occurred in March of 1998. of Workforce Development. This Catlin alleged that Crystal Lake violated the WFEA by terminating her employment, and by refusing to permit her to return to work because of her disability. The federal filing was subsequently April 27, 1998. 7 dismissed by notice sent on No. 02-0815 II. PROCEDURAL BACKGROUND A. Administrative Law Judge's Decision ¶14 An Equal Rights Division hearing was held before the ALJ on January 25, 2000. Crystal Lake's At the hearing, Phillip Robertson, operations manager, testified to some costs in modifying the factory to accommodate Catlin. Lake asserted that these costs were unreasonable. of the Crystal In October 2000 Olstad determined that Crystal Lake had not discriminated against Catlin following her reasonable without in refusing automobile accommodations imposing on it to allow accident. that a her He Crystal hardship. to return found there Lake could to work were have Consequently, no made, Olstad determined that Crystal Lake had not violated the WFEA. B. Labor and Industry Review Commission's Decision ¶15 Catlin appealed the ALJ decision to LIRC. In July 2001 LIRC reviewed the case and reversed the ALJ's ruling. LIRC did not consult with the ALJ regarding the credibility of the witnesses because LIRC believed that its reversal of the examiner's decision was not based upon any differing assessment of witness credibility. It found that Crystal Lake could have made reasonable accommodations in the factory and modifications to Catlin's duties that would have allowed Catlin to return to work as the department head. LIRC found that as of the day that Catlin sought reinstatement she was physically able to perform most of the jobs in the wholesale packing department; LIRC, Fair Employment Decision, Finding 14, p. 3 (May 5, 2000), but that she could not perform some of the heaviest physical tasks. Id., 8 No. Finding 15, p. 4. 02-0815 More specifically, LIRC found that Crystal Lake could have altered Catlin's job duties and exempted her from certain activities that she was no longer physically capable of performing, and that doing so was well within the bounds of reasonable accommodation. refusal to modify Catlin's job LIRC determined that the duties to exempt her from performing the heavier physical tasks, constituted a denial of a reasonable accommodation that Crystal Lake could have provided without hardship. Id., Finding 16, p.4. explaining its findings, LIRC In a memorandum opinion stated in part: LIRC has "previously found that it is reasonable to require an employer to restructure the physical demands of the job in order to accommodate a disabled employee, provided this can be achieved without hardship to the employer." Fields v. Cardinal TG Co., ERD Case No. 1997-02574 (LIRC, Feb. 16, 2001). ¶16 duties, LIRC also found Catlin needed workplace. that, some in order to physical perform modifications her job to the LIRC, Fair Employment Decision, Findings 17-18, pp. 4-5 (May 5, 2000). LIRC determined that Crystal Lake's refusal to make physical modifications also constituted denial of a reasonable accommodation that Crystal Lake could have provided without hardship. Id., Finding 19, p. 5. Furthermore, LIRC found that at the time Catlin sought to return to work she did not even need an accessible bathroom.5 5 Thus, the cost of putting Catlin was "catheterized" when she first sought reinstatement, but by the time of LIRC's review she was using a bathroom. LIRC, Fair Employment Decision, Finding 18, p. 5 (May 5, 2000). 9 No. in an accessible employer bathroom, claimed, was not even a if basis lawfully be denied reinstatement. it was upon $47,000 which 02-0815 as Catlin the could LIRC ordered Crystal Lake to reinstate Catlin, provide "make whole" remedies6 to her, and pay reasonable attorney's fees and costs. C. The Circuit Court Decision ¶17 On August 16, 2001, Crystal Lake filed for judicial review of LIRC's decision, and on court affirmed LIRC's February 7, 2002, the circuit decision. It found that LIRC had reasonably interpreted the WFEA, and that there was substantial and credible evidence in the record to support LIRC's findings. D. The Court of Appeals' Decision ¶18 Crystal Lake Appeals, District III. appealed to the Wisconsin Court of On October 8, 2002, the court of appeals affirmed and, thus, upheld LIRC's decision. ¶19 court of Applying appeals the great concluded Wis. Stat. § 111.34(1)(b) was weight that standard LIRC's acceptable of review, interpretation when it found the of that Crystal Lake's refusal to modify Catlin's duties to exempt her from the heaviest physical reasonable accommodation. LIRC reasonably tasks constituted a denial of The court of appeals concluded that interpreted the reasonable accommodation provision of the WFEA to mean that an employer may be required 6 LIRC ordered Crystal Lake to pay Catlin the sum she would have earned as an employee from the date she sought reinstatement until she resumed employment with Crystal Lake, refused a valid reinstatement offer, or it was shown that reinstatement was not feasible. 10 No. 02-0815 to modify some job responsibilities of a disabled employee who can perform some or most (but not all) job-related functions, unless the employer can show that such modifications would cause a hardship. ¶20 The presented court appeals found evidence no of showing that disability would create a hardship. that Crystal accommodating Lake had Catlin's The court of appeals also concluded that LIRC did not deny Crystal Lake due process when it rejected some of the ALJ's factual findings and failed to consult with him. Finally, the court of appeals declined to remand the case in order to give Crystal Lake the opportunity to show hardship. ¶21 Crystal Lake petitioned for review of the decision of the court of appeals and we granted review on February 19, 2003. III. ISSUES ¶22 As noted, we are presented with the following issues: (1) whether LIRC reasonably interpreted Wis. Stat. § 111.34(1)(b) and Wis. Stat. § 111.34(2)(a) of the WFEA when it found that there was a reasonable accommodation Crystal Lake could have provided its former employee, Catlin, without hardship; (2) whether Crystal Lake was denied due process by LIRC's failure to consult with the administrative law judge; (3) whether there was substantial and credible evidence to support the factual findings made by LIRC, upon which it based its decision that there was a reasonable accommodation Crystal Lake could have provided Catlin, without hardship within the provisions of Wis. Stat. § 111.34(1)(b) and § 111.34(2)(a). 11 No. 02-0815 IV. STANDARD OF REVIEW ¶23 Crystal Lake argues that a de novo standard of review is appropriate for LIRC's decision. standard, Crystal reasonable create a Lake contends accommodation new job for impression for LIRC. under a In support of the de novo that the disabled the WFEA issue of includes employee is a one whether duty of to first- Alternatively, Crystal Lake argues that LIRC's decision in this case is inconsistent with its previous decisions on other matters. Accordingly, based on Kannenberg v. LIRC, Crystal Lake maintains that if an issue is one of firstimpression before the agency, or the agency's position is inconsistent with other decisions on the matter, de novo is the appropriate standard of review. Kannenberg v. LIRC, Wis. 2d 373, 385-86, 571 N.W.2d 165 (Ct. App. 1997). Lake also maintains that LIRC's interpretation is 213 Crystal in direct conflict with decisions from the Wisconsin Personnel Commission and federal courts interpreting analogous federal anti- discrimination laws. ¶24 that The respondents, LIRC and Catlin,7 disagree and argue LIRC's reasonable determination accommodations that Crystal that would Lake have could allowed have made Catlin to continue working as the department head, is entitled to "great weight" deference, and must be affirmed if it is reasonable and not contrary to the clear meaning of the statute. 7 See Target Hereinafter, the respondents will usually be referred to collectively as Catlin. 12 No. 02-0815 Stores v. LIRC, 217 Wis. 2d 1, 13-14, 576 N.W.2d 545 (Ct. App. 1998). This is true even if the court were to conclude that another interpretation was more reasonable. ¶25 Catlin argues that if See id. LIRC's interpretation is reasonable, then the reviewing court must affirm its decision under the great weight standard of review. In support of this argument Catlin maintains that the weight and credibility of the evidence are matters for the agency, and not for the reviewing court, to evaluate. See Bucyrus-Erie Co. v. ILHR Dep't., 90 Wis. 2d 408, 418, 280 N.W.2d 142 (1979); Wis. Stat. § 227.57(6). Even when more than one inference can reasonably be drawn, the finding of the agency is conclusive. See Vocational Tech. & Adult Educ. Dist. 13 v. ILHR Dep't., 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977). ¶26 Moreover, Catlin argues that if an agency's decision depends on any fact found by the agency, the court shall not substitute its own judgment as to the weight of the evidence of any finding of Wis. Stat. § 227.57(6). fact for that of Additionally, the agency. relying on Wis. Stat. § 227.57(10),8 Catlin argues that great weight shall 8 Wisconsin Stat. § 227.57(10) states: Upon such review due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it. The right of the appellant to challenge the constitutionality of any act or of its application to the appellant shall not be foreclosed or impaired by the fact that the appellant has applied for or holds a license, permit or privilege under such act. 13 No. be accorded the experience, technical 02-0815 competence, and specialized knowledge of the agency involved. According to Wis. Stat. § 227.57(6),9 LIRC's decision ¶27 may be reviewed by a court and will only be set aside or remanded to the agency "if [the court] finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record." "Substantial evidence does not mean a preponderance of the evidence. Rather, the test is whether, taking into account all the evidence in the record, 'reasonable minds could arrive at the same conclusion as the agency.'" Madison Gas & Elec. Co. v. Public Serv. Comm'n, 109 Wis. 2d 127, Transfer & 133, 325 Landfill, N.W.2d 144 (1978)). N.W.2d 339 Inc. v. DNR, (1982) 85 (citing Wis. 2d 1, Sanitary 15, 270 The reviewing court may not substitute its judgment for that of an agency in a contested case as to the weight of evidence on any disputed finding of fact. ¶28 deference 9 A reviewing court must first determine what level of to accord an agency decision. If the agency's Wisconsin Stat. § 227.57(6) provides: If the agency's action depends on any fact found by the agency in a contested case proceeding, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by substantial evidence in the record. 14 No. 02-0815 determination is entitled to great weight, a court will sustain it unless it directly contravenes a statute, is clearly contrary to legislative intent, or lacks a rational basis. Corp. v. LIRC, 196 Wis. 2d 650, 662, 539 Harnischfeger N.W.2d 98 (1995). Here, any decision made by LIRC will be given great weight due to the agency's knowledge Wis. Stat. § 111.34. ¶29 and experience in application of Target, 217 Wis. 2d at 13. In Target the court of appeals determined that LIRC's interpretation of reasonable accommodation should be given great weight. The Id. interpretation of a court stated statute that varying "[w]e degrees give of LIRC's deference depending on its obligations with respect to administering the statute, its experience determinations." Id. in doing so, and the nature of the The court then went on to explain why it concluded great weight should be given to LIRC's interpretation of reasonable accommodation: First, LIRC is charged with adjudicating appeals from the hearing examiner's decision on complaints under the WFEA, § 111.39(5), Stats., which includes complaints under § 111.322, Stats., for handicap discrimination. Second, § 111.34(1), Stats., was enacted in 1981 and LIRC has developed experience and expertise in interpreting this section. . . . Third, by according great deference to these determinations, we will promote greater uniformity and consistency than if we did not do so. Fourth, this determination is intertwined with factual determinations, see McMullen v. LIRC, 148 Wis. 2d 270, 276, 434 N.W.2d 830, 833 (Ct. App. 1988) (what is reasonable accommodation depends on the facts in each case). Fifth, this determination involves value and policy judgments about the obligations of employers and employees when an employee, or prospective employee, 15 No. 02-0815 has a handicap. See Kannenberg, 213 Wis. 2d at 385, 571 N.W.2d at 171. Id., (some citations omitted). ¶30 We Target, and agree with hold the that standard LIRC's of review interpretations, set forth including in its determination of reasonable accommodation in this case, should be given "great weight" deference.10 Crystal Lake's impression, or contention that its decisions on the matter. that In doing so, we reject the position issue is was one inconsistent of first with other LIRC has had many opportunities to address this issue of what reasonable accommodation is under the WFEA. "Under the great weight standard of review, we uphold LIRC's interpretation of the statute if it is reasonable and not contrary to the clear meaning of the statute, even if conclude that another interpretation is more reasonable." we Id. at 13-14. V. ISSUE ONE LIRC'S INTERPRETATION OF REASONABLE ACCOMMODATION WITHOUT HARDSHIP AND ABILITY TO UNDERTAKE JOB RESPONSIBILITIES ¶31 As noted previously, Wis. Stat. § 111.34 states: 10 The dissent argues for application of the due weight deference standard of review, which it characterizes as one which allows the reviewing court to accept "an alternative interpretation that is more reasonable." Dissent, ¶108. While we believe that great weight deference is appropriate here, even under a due weight deference standard, our approval of LIRC's interpretations of the statutory sections involved would not change. Its interpretations are "more reasonable" than the alternatives offered by Crystal Lake. 16 No. 02-0815 Disability; exceptions and special cases (1) Employment discrimination because includes, but is not limited to: of disability . . . . (b) 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. (2)(a) 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. ¶32 that an The statutory language of Wis. Stat. § 111.34 requires employer reasonably must related to show the the individual's individual's ability disability to "is adequately undertake the job-related responsibilities of that individual's employment . . . ." employer violates Wis. Stat. § 111.34(2)(a). the WFEA if it refuses However, to an reasonably accommodate an employee's disability without demonstrating that the accommodation would Wis. Stat. § 111.34(1)(b). be a hardship on it. Taken together, § 111.34(1)(b) and (2)(a) require an employer to prove that even with reasonable accommodations, the employee would not be able to perform his or her job responsibilities adequately or that, where reasonable 17 No. 02-0815 accommodations would enable the employee to do the job, hardship would be placed on the employer. Target, 217 Wis. 2d at 17. A. Arguments ¶33 Crystal Lake argues that unreasonable and erroneous. The WFEA does not define reasonable accommodation or the to disabled employee. an WFEA of accommodation which the interpretation reasonable extent under LIRC's accommodation is may be required for a Moreover, Crystal Lake contends that there is little guidance from Wisconsin's appellate courts regarding the scope of reasonable accommodation under the WFEA. See id. Relying on Target,11 Crystal Lake argues that eliminating at 17. the duties of an employee's position is not an accommodation that enables the disabled employee to "adequately undertake jobrelated responsibilities" of her employment. ¶34 Crystal Lake maintains that neither LIRC, nor Catlin's expert, suggests that there is any such accommodation that would have allowed Catlin to do her job. that LIRC required Crystal Instead, Crystal Lake claims Lake to excuse Catlin from those duties she could no longer perform, essentially creating a new job. Under the statutory language of the WFEA, Crystal Lake argues that an employee must be able to "adequately undertake the job-related employment. . . . " responsibilities of [the] individual's Wis. Stat. § 111.34(2)(a). 11 In Target, the court of appeals held that "the purpose of reasonable accommodation is to enable employees to adequately undertake job-related responsibilities." Target Stores v. LIRC, 217 Wis. 2d 1, 17, 576 N.W.2d 545 (Ct. App. 1998). 18 No. ¶35 of the 02-0815 Next, Crystal Lake argues that the legislature's use definite article, "the" in Wis. Stat. § 111.34(2)(a), without modification, can only be reasonably interpreted to mean all of the functions that make up the job. article "the," Crystal Lake contends, is The use of the contrary to the interpretation adopted by the court of appeals in this case, where the court found that as long as the employee could perform "some" of the job-related responsibilities, the employer is obligated reasonably to accommodate the employee by eliminating those tasks which the employee can no longer do. Crystal Lake Cheese Factory v. LIRC, 2002 WI App 290, ¶26, 28-29, 258 Wis. 2d 414, 654 N.W.2d 286. ¶36 analogous Crystal Lake contends that this court should look to federal statutes and the Wisconsin Personnel Commission in interpreting reasonable accommodation, even though neither the court, nor LIRC, is bound by those decisions in interpreting Wis. Stat. § 111.34(1)(b) and (2)(a). 217 Wis. 2d at 18-19; Kannenberg, 213 Wis. 2d See Target, at 387. In support of its argument, Crystal Lake points out that federal courts have routinely held that reasonable accommodation does not require an employer to eliminate job duties, create a new job, or employ others employee cannot perform. to perform functions that a disabled Peters v. City of Mauston, 311 F.3d 835, 845-846 (7th Cir. 2002); Watson v. Lithonia Lighting, 304 F.3d 749, 752 (7th Cir. 2002). Consequently, Crystal Lake asks us to find that the WFEA's reasonable accommodation provision 19 No. 02-0815 does not require an employer to create a new position for a disabled employee. ¶37 read Catlin disagrees and argues that the court should not federal legislators. interpreted rather legislation into the intent of Wisconsin's Instead, Catlin maintains that the WFEA should be in than accordance with the with "our intention legislature's of other intention jurisdictions." McMullen v. LIRC, 148 Wis. 2d 270, 275-76, 434 N.W.2d 830, 833 (Ct. App. 1988). Wisconsin has determined that while federal and cases other states' enlightening to the Wisconsin courts. court may applying WFEA they legislation are not may binding be upon Thus, Catlin argues that while this Id. consider cases, similar how federal courts have dealt with the question of reasonable accommodation under the Americans with Disability Act (ADA), since the WFEA is similar, but not identical, guidance is limited as to the determination of what is reasonable Catlin argues under that the WFEA. there are In support of significant statutory language between the WFEA and the ADA. its position, differences in See McMullen, 148 Wis. 2d at 275. Catlin points out that the ADA requires an employer reasonable to make accommodations only to the disability of a "qualified individual with a disability" and a "qualified individual with a disability" is "an individual with a disability who, with or without reasonable accommodation can perform the essential functions of the employment position that 20 No. 02-0815 such individual holds . . . ." See 42 U.S.C §§ 12111(8)12 and 12112(5)(A).13 The WFEA, Catlin contends, requires an employer reasonably accommodate to an employee's disability, but an "individual with a disability" is not limited to an individual who can perform position with the "essential or functions" without of the employment accommodation. See Wis. Stat. §§ 111.32(8)14 and 111.34(1)(b). 12 42 U.S.C. § 12111(8) states: The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 13 42 U.S.C. § 12112(5)(A), states: As used in subsection (a) of this section, the term "discriminate" includes: not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. 14 Wisconsin Stat. § 111.32(8) provides: "Individual with a disability" means 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 21 No. ¶38 02-0815 Moreover, Catlin argues that under the ADA analysis, it is not even clear that the tasks that Catlin could no longer perform were Catlin points considered out that essential as the functions department of her head, position. her primary responsibility was to process orders and do inventory sheets tasks which she could still perform. Furthermore, Catlin asserts that Crystal Lake has offered no case law, under the ADA, that functions says of an four individual different must be positions, able or to they perform will not all be considered a qualified individual with a disability entitled to protections under the law. ¶39 Catlin argues that even if the ADA is considered when applying the WFEA, it makes no difference since the ADA requires an employer to engage in an interactive process with an employee to determine a reasonable accommodation, and that in the present case, no such process was undertaken. To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. 29 C.F.R. § 1630.2(o)(3) 1995.15 process took place here. Again, no such interactive Catlin points out that Crystal Lake (c) Is perceived as having such an impairment. 15 EEOC Regulations to Implement the Equal Employment Provisions of the ADA, 29 C.F.R. § 1630.2(o)(3) (1995). 22 No. never inquired of her as to what she accommodations 02-0815 needed. Catlin argues that this failure violated the intent of the WFEA as well. Furthermore, Catlin argues that under the ADA, determining whether a function is essential includes determining whether removing position if the the function position would exists fundamentally to perform alter a that particular function, if there are other employees available to perform that function, and the amount of time spent performing the function. Americans With Disabilities Act Handbook, p. I-38, U.S. Equal Employment Opportunity Commission and U.S. Department of Justice (1992). Even under this analysis, Catlin contends, it is not clear whether the few tasks Catlin was no longer able to do, even with accommodations, qualified as essential functions or marginal functions. Her position was not the cutter position nor was it the cryovacer position. ¶40 Crystal Lake argues that all Catlin's job functions were essential, and that not only is Catlin required to perform all the functions of her position, but it is also essential that she be able to perform all the functions of all the other employees in the department, no matter what their primary role is. Catlin argues that Crystal Lake's comment that nothing in the WFEA's legislative history "suggests an intent to construe the duty of 'reasonable accommodation' differently than under the ADA" is similarly unpersuasive, given that the WFEA's disability provisions predate the ADA by almost ten years. ¶41 In summary, inappropriately Catlin attempting argues to 23 move that this Crystal case Lake from is the No. protections under of the the ADA. WFEA, The ADA and instead apply distinguishes an between 02-0815 analysis used essential and marginal functions, but the term "essential functions" has no particular meaning under the WFEA. Target, 217 Wis. 2d at 16-17 n.9. ¶42 Under the WFEA a complainant must first show that he or she is an "individual with a disability" within the meaning of Wis. Stat. § 111.32(8), and that the employer took one of the actions enumerated in Wis. Stat. § 111.322.16 Target, 217 Wis. 2d at 9. ¶43 Once a disability has been proven by the employee, the burden then shifts to the employer to prove a defense under Wis. Stat. § 111.34. ¶44 Id. In this case, there is no dispute among the parties that Catlin was disabled within the meaning of the WFEA, or that she was not allowed to return to work because of her disability. Also, it is uncontested that Catlin's disability was reasonably 16 Wisconsin Stat. § 111.322 provides: Discriminatory actions prohibited. Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following: (1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment or labor organization membership any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership because of any basis enumerated in s. 111.321. . . . . 24 No. 02-0815 related to her adequately performing her job responsibilities, unless reasonable accommodations were made. The question remains whether, with reasonable accommodations Catlin must then be able to perform adequately. all of the job-related responsibilities Also left in question is whether or not there was a reasonable accommodation that Crystal Lake could have provided Catlin without "reasonable hardship. accommodation," Under it LIRC's found that interpretation Crystal Lake of could have modified Catlin's job duties to accommodate her disability. Catlin contends that a reviewing court may not make an independent determination of the facts,17 and that the decision of LIRC should not be set aside unless it can be shown that the decision was not supported by substantial evidence. Id. at 11 (citing 617, Hamilton v. ILHR Dept., 94 Wis. 2d 611, 288 N.W.2d 857, 860 (1980)). Crystal Lake, however, contends that this interpretation is unreasonable because it is being forced to create a new job to accommodate a disabled employee. ¶45 LIRC determined that Crystal Lake should modify Catlin's job duties and make physical modifications to the plant as a reasonable accommodation. Crystal Lake argues that, in this case, LIRC's interpretation of reasonable accommodation is unreasonable. Under Crystal Lake's alternate interpretation, an employer would only be required to assist an employee with his or her 17 job responsibilities if there is some reasonable See Hixon v. PSC, 32 Wis. 2d 608, 629, 146 N.W.2d 577 (1966). 25 No. 02-0815 accommodation that will enable the employee to undertake all of his or her job duties. would not be exempt an Crystal Lake argues that an employer required to modify an employee's duties, or to employee from having to perform certain duties. Crystal Lake relies heavily on federal court decisions under the ADA in support of its interpretation. The basis for using the ADA in interpreting reasonable accommodation is, according to Crystal Lake, due to the similarity in language and purpose of the federal statute to the WFEA. physical modifications to the Crystal Lake asserts that plant and/or modification to Catlin's duties would have posed a hardship for the company. Catlin takes the position that Crystal Lake failed in meeting its burden of proving hardship. B. Analysis ¶46 in Though this court may look to federal law for guidance determining if LIRC's interpretation of "reasonable accommodation" was reasonable, we are not bound by those cases in interpreting Wis. 2d at the 275-76. WFEA. See also Id. at American 18-19; McMullen, Motors Corp. Dep't, 101 Wis. 2d 337, 353, 305 N.W.2d 62 (1981). v. 148 ILHR The WFEA is a "remedial statute . . . [and] should be broadly interpreted to resolve the problem it was designed to address." Wis. 2d at 275. McMullen, 148 Also, the statutory language and scheme contained in the analogous . . . federal legislation differ[s], sometimes significantly, from that found in sec. 111.34(1)(b). . . . Our [The Wisconsin] legislature has established its own scheme for dealing with employment discrimination based on handicap and has 26 No. 02-0815 articulated the specific policy considerations underlying that scheme. Therefore, we will construe sec. 111.34(1)(b) in accordance with our legislature's intention rather than with the intention of other jurisdictions. McMullen, 148 Wis. 2d at 275-276. bound by federal law Clearly, this court is in determining whether not LIRC's interpretation of "reasonable accommodation" was appropriate. ¶47 issue The of court of interpretation Target and McMullen. that a reasonable appeals of has previously reasonable addressed accommodation in the both In each case, the court of appeals held accommodation was not limited to only an accommodation that would permit the employee to perform all of his or her job responsibilities. ¶48 In Target, the court upheld a decision by LIRC to "temporarily refrain from enforcing a disciplinary rule" against an employee as a reasonable accommodation. at 18. Target, 217 Wis. 2d The employee was unable, due to sleep apnea, to stay awake at times while performing her job duties. Id. at 5-6. LIRC determined that it was unreasonable to fire the employee without allowing time to see if treatment of the condition would correct the problem. Id. at 8-9. The employee's sleep apnea was reasonably related to her ability to perform adequately her job responsibilities. as a reasonable However, the court upheld LIRC's decision accommodation, even though it did not immediately allow her to perform adequately her job duties. Id. at 16-18. ¶49 Similarly, in McMullen, the court of appeals required an employer to transfer an employee to a different position as a 27 No. reasonable court accommodation held that a of the employee's "'reasonable 02-0815 disability. accommodation' may The include a transfer of a handicapped employee to another position for which he is qualified, case." depending on the facts McMullen, 148 Wis. 2d at 271. of each individual This accommodation also did not allow the employee to perform his current job duties, but instead placed him in a job better suited to his current abilities. It was essentially a change or modification in the employee's job-related responsibilities. ¶50 was In Frito Lay, Inc. v. LIRC, despite the fact that it decided before the legislature added the reasonable accommodation requirement to the WFEA, the court of appeals held that arrangements made among other employees to accommodate one employee's disability, negated the employer's claim of an exception to the law against employment discrimination based on disability. 290 Frito Lay, Inc. v. LIRC, 95 Wis. 2d 395, 407-08, N.W.2d employed (Ct. drivers, interstate Beloit. 551 and App. 1980). including intrastate Id. at 399. the In that case, complainant, deliveries from to its Frito make warehouse Lay both in The complainant was a truck driver whose lack of visual acuity barred him because Wisconsin and Federal requirements deliveries. differed Id. for Delivery interstate, runs were but not allocated intrastate based on seniority, and all drivers senior to the complainant agreed to ensure that he had only intrastate runs. Id. The court held that this accommodation did not allow the employer to discharge 28 No. 02-0815 the complainant for failing to meet the federal (interstate) vision requirements. ¶51 employees In in this Id. at 408. case, Catlin's at least department two of agreed the that three it other would be feasible for them to accommodate a change in Catlin's duties because of her disability. This further supports the reasonableness, under Frito Lay and the current WFEA, of such a job modification.18 ¶52 Based on the prior decisions in Target, McMullen, and Frito Lay, we hold that LIRC's interpretation of "reasonable accommodation" is not unreasonable, but rather is a reasonable one. A reasonable accommodation is not limited to that which would allow the employee to perform adequately all of his or her job duties. accommodation A in change a in given job duties may circumstance. Wis. 2d 1; McMullen, 148 Wis. 2d 270. be See a reasonable Target, 217 As we have determined LIRC's interpretation to be reasonable, under the "great weight" 18 This court upheld the court of appeals' decision in Frito Lay by an evenly divided court. We recognize that the facts in Frito Lay are distinguishable from the case at bar. In Frito Lay the drivers chose their own truck routes based on seniority, and voluntarily left the intrastate routes to the complaintant in that case. In this case the job duties of Catlin's sister and mother are not determined by them, but rather, set by the employer, Crystal Lake. However, we still find Frito Lay persuasive in demonstrating that, even prior to the current version of the WFEA, this court upheld a voluntary rearrangement of job responsibilities by the employees as reasonable. Frito-Lay, Inc. v. LIRC, 95 Wis. 2d 395, 290 N.W.2d 551 (Ct. App. 1980). 29 No. standard of review, we must, therefore, defer 02-0815 to LIRC's conclusion.19 ¶53 While we are satisfied that LIRC's finding of no hardship also deserves great weight deference, and is correct, we reserve a thorough discussion of the hardship issue for our review of issue three. VI. ISSUE TWO DUE PROCESS ¶54 Crystal Lake argues that it was denied due process when LIRC rejected the hearsay testimony of Phillip Robertson, regarding the bathroom. Crystal Lake contends that LIRC should have consulted with ALJ the cost of regarding constructing Robertson's a wheelchair credibility. accessible Catlin, however, argues that Crystal Lake was not denied due process by LIRC's failure to consult with the ALJ regarding credibility issues, since LIRC's decision did not depend on the credibility of the witness. Because credibility was not the basis upon which the commission's decision hinged, the commission and the examiner were not required to consult. Rather, the testimony of Robertson was dismissed because it was uncorroborated hearsay. Catlin, therefore, asserts that LIRC was correct to reject the finding of the ALJ, since crucial findings cannot be based on 19 The dissent attempts to lead us into a trap, involving the employee's ability to perform "some" as opposed to "most" or "all" job responsibilities. Dissent, ¶89, 113, 118, 127. The proper emphasis is on the employee's ability to perform her or his job responsibilities adequately, rather than on terms such as "some" or "most" or "all." 30 No. hearsay testimony alone. 02-0815 Village of Menomonee Falls v. DNR, 140 Wis. 2d 579, 610, 412 N.W.2d 505 (Ct. App. 1987). ¶55 reached In support of her position, Catlin points out LIRC its decision Wis. Stat. § 111.34 because should be of its applied interpretation to the case, of and credibility was not a factor in reaching that decision. how that Crystal Lake had an opportunity to present its argument at the hearing and the ALJ ruled in its favor. Catlin argues that the fact that LIRC reached a result different than the ALJ does not mean that Crystal Lake's due process rights were violated. put, there were reasonable alternative conclusions Simply one could draw from the testimony and LIRC chose one that was different than the ALJ's. Consequently, Crystal Lake's due process rights were not violated by LIRC's decision. ¶56 Crystal Lake maintains that it was denied due process not only when LIRC failed to confer with the ALJ on issues of credibility, but when LIRC rejected evidence that was admitted without objection at the hearing. More specifically, Crystal Lake points out that while the ALJ determined that Catlin had to regularly perform the functions of the other positions in the department, LIRC determined the opposite without ever conferring with the ALJ. Crystal Lake argues that due process would have required LIRC to confer with the ALJ before reversing the ALJ's determination. ¶57 Essentially, Crystal Lake argues that LIRC's failure to consult with the ALJ prior to reversing the decision, as well as its rejection of Robertson's testimony on hearsay grounds, 31 No. 02-0815 constituted a denial of due process and ultimately led to LIRC's finding that there was a reasonable accommodation that Crystal Lake could have provided without hardship. ¶58 the Catlin argues that the LIRC decision did not depend on credibility interpreted rather than of witness the testimony accepting testimony, in the a but different ALJ's rather way. that For determination LIRC example, that Catlin regularly assisted others in the wholesale department, LIRC only noted that the record did not indicate which she assisted the other workers. the "frequency" with Catlin argues that there were reasonable alternative conclusions one could draw from the same testimony, and just because LIRC happened to reach a conclusion that was different from the ALJ, and against Crystal Lakes' interest, does not imply that Crystal Lakes' due process rights were violated. ¶59 Essentially, decision because Wis. Stat. § 111.34 Catlin of should argues its be that LIRC reached its of how interpretation applied to the case, and credibility was not a factor in reaching that decision. that As a result, LIRC did not violate Crystal Lake's due process rights. ¶60 process We agree and hold that Crystal Lake was not denied due by credibility LIRC's failure since LIRC's to consult findings with were the not based credibility of the operation manager's testimony. reached its decision Wis. Stat. § 111.34 because should be of its applied ALJ regarding upon Rather, LIRC interpretation to this the case. of how Put differently, the facts of the case and LIRC's interpretation of 32 No. the statute were the real reasons for LIRC's decision. hold that since LIRC's decision did not hinge 02-0815 Thus, we upon witness credibility,20 LIRC was not required to consult with the ALJ and, therefore, Crystal Lake was not denied due process. VII. ISSUE THREE SUBSTANTIAL EVIDENCE REASONABLE ACCOMMODATION WITHOUT HARDSHIP ¶61 lacked Crystal Lake evidentiary argues support that in LIRC's the record. factual In findings holding that Crystal Lake could have accommodated Catlin without hardship, LIRC found that Catlin could still perform most of her duties. Crystal Lake counters that this finding is against the evidence in the record. It maintains its position that Catlin regularly performed several activities, which LIRC found Catlin did only infrequently. Crystal Lake maintains that it is critical that Catlin should be able to perform not only her regular tasks, but all tasks for all positions in the department. ¶62 does not Additionally, support modifications to Crystal LIRC's the plant, Lake asserts finding nor that that neither modifications the to duties, would have posed a hardship to the company. record physical Catlin's It points to the $47,000 estimate for a wheelchair-accessible restroom, as well as the other plant modifications, as proof of hardship. Crystal Lake points out that the court of appeals acknowledged that modifying Catlin's duties may lead to production slowdowns. 20 We strongly disagree with the dissent's attempt to turn LIRC's statutory interpretations into "credibility assessments." Dissent, ¶¶90, 133-136. 33 No. 02-0815 Crystal Lake disagrees, however, with the court of appeals that Crystal Lake fell short of proving hardship when it failed to go further and ensure there was evidence in the record of the instance, has consequences of such slowdowns. ¶63 Catlin maintains that LIRC, in this determined that there was substantial evidence to support its determination that reasonable for Crystal Lake to make. accommodations were appropriate LIRC found that Catlin could perform most of her duties, and that the duties Crystal Lake argues Catlin could not perform were not her regular responsibilities. Under LIRC's interpretation of the statutes, as long as Catlin could perform some of her duties, which the record indicated she could, then there were reasonable accommodations that could and should have been made. Catlin felt that she would be able to perform most tasks that were part of her job with little or no accommodation. ¶64 Catlin asserts that Crystal Lake had no knowledge regarding what duties she was capable of performing, and never asked her what accommodations she thought she might need. Catlin contends that the WFEA has been found to include a duty to gather sufficient information from the employee and from qualified experts, as needed, to determine what accommodations are necessary. Keller v. UW-Milwaukee, No. 90-0140-PC-ER, (Mar. 19, 1993). Catlin argues that Crystal Lake failed to satisfy this duty. Crystal Lake was aware that Catlin had a disability and require would some sort of accommodation, but never approached her to inquire about what job duties she was capable 34 No. of performing. 02-0815 Additionally, Catlin contends that Crystal Lake did not look at the possibility of transferring her to another position if it felt she could not adequately perform her job. She argues that such a transfer accommodation under the WFEA. ¶65 may also be a reasonable Wis. Stat. § 111.34(1)(b). She argues that with minor changes to the building and some assistive technology, she could have performed her job. Catlin asserts, and the Annis assessment points out, the easiest way to accommodate Catlin would have been to modify her job duties so physically that Catlin demanding did tasks. not have Everyone to in perform the the department more was cross-trained, and at least two of the three other team members acknowledged that they could make up for Catlin's restricted duties. ¶66 Based on the evidence contained in the record, Catlin argues that there was clearly a sufficient amount of credible evidence to support the findings of LIRC. ¶67 The complainant in a disability discrimination, under the WFEA, must show that: (1) he or she is handicapped under WFEA, and (2) that the employer has taken one of the enumerated, proscribed actions under the WFEA. Target, 217 Wis. 2d at 9. Once the complainant has made these two showings, the employer may proffer a defense that the accommodations named complainant would impose a hardship on the employer. such a hardship. case the employer Id. at 9-10. has the burden of by the Id. In proving that If the employer fails to prove this defense, it is in violation of WFEA. 35 No. 02-0815 A. Wisconsin Stat. § 111.34(1)(B) Hardship ¶68 Although Crystal Lake argues that reasonably accommodating Catlin would have resulted in a hardship for it, Catlin argues that Crystal Lake did not meet its burden of proving hardship pursuant to Wis. Stat. § 111.34(1)(b), nor did it meet its burden under Wis. Stat. § 111.34(2)(a). Target, 217 Wis. 2d at 10. [I]f an employer refuses to reasonably accommodate an employee's (or prospective employee's) handicap and is unable to demonstrate that the accommodation would pose a hardship, then the employer violates the WFEA. Wis. Stat. § 111.34(1)(b). Reading the two paragraphs of § 111.34 together, once the employee has met the first two showings, the employer must show either that a reasonable accommodation would impose 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). Id. ¶69 Crystal In support of her argument, Catlin points out that Lake accommodating did her not offer would be any a evidence hardship showing that it. More for specifically, Catlin points out that Crystal Lake offered no evidence showing that by exempting her from duties she could not perform it would suffer a hardship. Moreover, Catlin contends that Crystal Lake did not even explore accommodations it could have made for her, let alone show that accommodation would impose a hardship upon it. any particular Catlin states that the owner of Crystal Lake Cheese Factory, Curella, admitted as much in his testimony. Curella testified that he "didn't 36 No. make any effort accommodations whatsoever for [Catlin] for to what return might to be 02-0815 appropriate work . . . ." (R. 14:4). ¶70 Furthermore, Catlin argues that restructuring her job duties would not have imposed a hardship on Crystal Lake since everyone in the four-person department was cross-trained in all tasks in the department, and that other members of the department were willing to perform the heavy physical tasks that Catlin could not do. object even if this The meant share of those duties. other department they would get a members did not disproportionate As noted previously, the other team members included Catlin's sister who already had the heaviest job as cutter, and Catlin's mother. Both of them were willing to perform the heavy physical tasks that Catlin could not do. LIRC found Crystal Lake could have accommodated Catlin without hardship by exempting her from performing the heavy physical tasks that were beyond her capabilities, physical modifications to the workplace. and by making some LIRC, Fair Employment Decision, Findings 16, 19, p. 4-5 (May 5, 2000). ¶71 In wheelchair regard accessible to the hearsay bathroom would testimony cost that $47,000, a new Catlin contends that Crystal Lake provided no documentation to support this figure. Moreover, Catlin argues that there was no evidence as to what Crystal Lake's financial resources were like. As a result, Catlin argues that it is possible that the $47,000 may not have been a significant cost for Crystal Lake, in relation to its financial situation. There was no evidence showing that 37 No. 02-0815 Crystal Lake could not reasonably afford such an expense. While Crystal Lake argues that the alleged cost of the new bathroom would be three times Catlin's wages, Catlin contends that there is no legal basis for such an argument. Catlin points out that a new bathroom could be used by all employees. As such, Catlin argues that Crystal Lake failed to prove that accommodating her would impose a hardship on it. ¶72 Lastly, physical Catlin modifications argues that that would the be other needed accommodate her were relatively inexpensive. necessary in order to One modification included addressing the three-inch threshold on the entry door, something she claims could easily be remedied with a small ramp. Other modifications dealt with changes that could be made to the factory such as the lowering of tables and other items, and, where necessary, the widening of aisles. ¶73 In summary, Catlin agues that Crystal Lake did not meet its burden of proof that an accommodation would impose a hardship pursuant to Wis. Stat. § 111.43(1)(b). ¶74 In Catlin is action based whether the the present handicapped on that record or case, neither that Crystal handicap. supports, The with party Lake disputes took issues, that termination therefore, substantial and are credible evidence, LIRC's conclusion that reasonable accommodations were available to Crystal Lake, accommodations that would allow Catlin to perform her job duties, and that Crystal Lake has failed to demonstrate that those reasonable accommodations would create a hardship for Crystal Lake. 38 No. 02-0815 B. Analysis ¶75 In determining whether an employer is required, under the WFEA, to accommodate a disabled employee, the questions of reasonableness employee, of while the accommodation overlapping, considerations that are are to McMullen, 148 Wis. 2d at 277. and two be hardship "separate addressed to and the distinct independently." Thus, in examining the record for evidence to support each, we will also treat the two as distinct determinations. ¶76 In record to this case there support notwithstanding, there is LIRC's were substantial conclusion reasonable evidence that, in the hardship accommodations Crystal Lake could have taken in order to keep Catlin as an employee. Crystal Lake could have modified the jobsite to allow Catlin full access, and let her continue to perform those tasks she is still able to perform. Among the accommodations that could and should have been considered: a ramp, installed at the entrance, would allow wheelchair access; the tables and other fixtures could be lowered; the bathroom could be modified; and, where necessary, aisles could be widened. ¶77 it When the state legislature modified the WFEA in 1981, added provisions that require employers dealing with handicapped employees or applicants to evaluate the individual in order to determine requirements of Crystal in this case Lake the whether job in he or question. failed to she meet the Wis. Stat. § 111.34. investigate herself could still do despite her disability. 39 can what Catlin Johnson, the job No. 02-0815 analysis evaluator from Genex, was told only that he was to examine the job and wheelchair. job site with regard to a person in a At no time did Crystal Lake contact Catlin; in fact, there is evidence in the record that Crystal Lake managers avoided her phone calls. This failure by Crystal Lake appears to have been a violation of the intent of the WFEA. ¶78 Another way Crystal Lake could have accommodated Catlin's disability is by modifying her responsibilities. is an accommodation, we hold, that appears to be This reasonable under the circumstances here and within the purview of the WFEA. The other employees could divide among themselves those physical tasks Catlin is now unable to do, and she could focus just on the many job responsibilities that she can do. As noted, other employees have testified that they would be willing and able to do this. ¶79 Having found substantial and credible evidence in the record to support LIRC's finding that Crystal Lake could have reasonably accommodated hardship satisfied for Crystal that LIRC's Catlin, now As Lake. we noted determinations turn the required showings that proscribed employer has taken employer has the a burden of she is entitled showing issue of we are to great Since Catlin has made handicapped action the previously, are weight deference on this issue as well. to under hardship. and that the WFEA, the Target, 217 the Wis. 2d at 9. ¶80 As to physical and job modifications, Crystal Lake has failed in its burden to prove hardship. 40 Further, we agree with No. 02-0815 the court of appeals that this matter should not be remanded to allow Crystal Lake to attempt now to make a new showing of hardship. erroneous Crystal Lake chose to rely on what it argued was an interpretation of the WFEA strategy is not grounds for remand. by LIRC. Failed trial See State v. McDonald, 50 Wis. 2d 534, 538, 184 N.W.2d 886, 888 (1971). VIII. CONCLUSION ¶81 We affirm the decision of the court of appeals. Accordingly, we hold that requiring Crystal Lake to modify the job duties of Susan Catlin and make physical modifications to the workplace is accommodation. ability not unreasonable and would be a reasonable With such accommodations, she would have the to adequately undertake her job-related responsibilities. ¶82 Next, we hold that Crystal Lake was not denied due process when LIRC, prior to reversing the ALJ's holding, failed to consult with the ALJ regarding witness credibility issues. We hold that since LIRC's findings did not hinge on issues of credibility, LIRC was not required to confer with the ALJ, and that there was, therefore, no violation of Crystal Lake's due process rights. LIRC reached its decision here based on its interpretation of the proper application of Wis. Stat. § 111.34 to the facts presented. ¶83 Finally, credible evidence we in hold the that record there to was justify substantial LIRC's and findings. There was substantial evidence to show that Crystal Lake could have made reasonable accommodations for Catlin, and Crystal Lake 41 No. has failed to meet its burden of establishing that 02-0815 such reasonable accommodations for Catlin would create hardship on it. By the Court. The decision of the court of appeals is affirmed. 42 No. ¶84 DAVID T. PROSSER, J. 02-0815.dtp The (dissenting). majority opinion does not reasonably accommodate the interests and rights of Wisconsin employers. ¶85 By ruling in favor Industry Review Commission Wisconsin Fair of Susan (LIRC) Employment Catlin, incorrectly Act's (WFEA) requires an employer to Labor and interpreted ban discrimination on the basis of disability. WFEA the on the employment LIRC held that the "accommodate" an applicant or employee that cannot perform all the applicant or employee's necessary job accommodations. responsibilities, even with reasonable I strongly disagree with this interpretation of the WFEA and with the burden it imposes on employers. ¶86 Today, a majority of this court affirms this statutory misinterpretation made in the first instance by an administrative agency and adopts this erroneous approach as the law of this state. In the process, the court has taken from Wisconsin the duties employers of their ability employees. to This define the is result a required job altogether unintended by the WFEA. ¶87 I disagree with the majority in three primary respects. ¶88 First, LIRC and its companion agency, the Wisconsin Personnel Commission, have not consistently ruled that removing necessary elements of an employee's job can be considered a reasonable accommodation under Wis. Stat. § 111.34(1)(b) that is consistent with § 111.34(2)(a). Therefore, I would grant only due weight deference to LIRC's interpretation of how § 111.34 1 No. 02-0815.dtp governs adverse employment actions taken against an employee or applicant that cannot perform all the necessary functions of the job for which she applies or for which she is already hired. ¶89 is Second, LIRC's interpretation of § 111.34 in this case manifestly less reasonable alternative meaning. than a readily understandable Section 111.34(2)(a), even when read in conjunction with § 111.34(1)(b), cannot be read to require that an applicant or employee need only be able to perform "some" or "most" of the basic responsibilities of the job that he or she fills in order to compel an employer to hire or retain that person. Rather, the reasonable accommodations contemplated by § 111.34 are those that assist the disabled employee's ability to perform a preexisting job. "The job" is defined by the basic duties that are incumbent upon the employment. ¶90 Finally, it was impermissible for LIRC to find unlawful discrimination on the basis of factual conclusions that were inconsistent with those reached by the administrative law judge (ALJ) without having first conferred with the ALJ. factual findings regarding the nature of the LIRC's job responsibilities that the complainant could or could not perform after her accident were based predominantly on testimony from the complainant herself and others. To declare that these findings are not based on credibility assessments is astounding. ¶91 For these reasons, I respectfully dissent. I. RESTATEMENT OF THE FACTS ¶92 As an initial matter, I must highlight the central factual matter at issue in this case: what responsibilities of 2 No. 02-0815.dtp Catlin's job could she perform after an injury confined her to a wheelchair, and what duties could she not perform, even with reasonable accommodations? ¶93 Catlin's job was lead worker/supervisor Lake Cheese Factory's wholesale department. of Crystal As the supervisor of this four-person department, Catlin's job required her to perform a variety of duties. ¶94 The majority has adopted LIRC's findings as to Catlin's ability to perform adequately "most" of her job duties following her accident. LIRC concluded that, as of the date she sought reinstatement, Catlin could (1) train employees; (2) make boxes; (3) make labels; (4) bake cheese; (5) label cheese (if she used a "reacher" to get at the labels); (6) weigh cheese; (7) price cheese; (8) box cheese; (9) put the cheese on pallets; (10) do inventory and other paperwork; and (11) clean up and wash equipment. Catlin's testimony during the hearings before the ALJ supports LIRC's findings that Catlin could, as a purely quantitative matter, perform these tasks. ¶95 There also is a nontrivial number of duties that LIRC found and which Catlin perform. Catlin could has not admitted that perform "some" she of could the not heavier physical tasks, including (1) lifting 40-pound blocks of cheese; (2) loading and unloading cheese onto hand carts and semi trucks; (3) reaching boxes stacked high in the storeroom; (4) reaching cheese stacked high in the cooler; (5) cutting cheese; and (6) placing the cheese in the hot-water bath to shrink-wrap it. LIRC proclaimed that the last two duties were not ones that 3 No. 02-0815.dtp Catlin performed "very frequently," as they were primarily the jobs of the cheese cutter and "cryovacer." Conspicuously absent from either of LIRC's lists is the vacuum-bagging role of the cryovacer, which involves the operation of a cryovac machine. In addition, prior to her accident Catlin had assisted in moving cheese by use of a handcart and loading it on a pickup truck to go to the retail store.21 After her accident, Catlin was unable to perform either of these two functions as well. ¶96 In all, there is no disagreement between the parties or their respective experts that Catlin was physically unable to perform a fair number of her job duties, even with reasonable accommodations. ¶97 In determining whether Catlin could undertake her job responsibilities adequately, it appears that LIRC took mostly a quantitative approach. LIRC simply counted the number of duties Catlin could perform, added to this number those duties that she could perform with accommodation, and then compared this total to the number of jobs that she could not perform. Accordingly, it of determined functions. that Catlin could perform "most" her job This analytical technique is suspect, because it fails to account for the amount of time that Catlin spent daily on each of the jobs and the relative importance of each of the tasks that she was required to perform. such an analysis of assigning Rather than engaging in weight to Catlin's job requirements, LIRC slapped the ambiguous modifier "most" on the 21 This pickup truck loading process apparently took place primarily, though not exclusively, at Christmas time. 4 No. 02-0815.dtp number of duties that she could still do and concluded that the duties she could not do anymore were those that she had regarding how performed "not very frequently." ¶98 There is mostly ambiguous testimony often and for what length of time Catlin engaged in any of her duties. As a result, it is difficult to determine how the performance of each of these tasks relates to Catlin's ability to adequately perform the functions that are necessary to her position.22 However, we do know the amount of time that she spent on one of her tasks; we know that she only spent about one to one-and-a-half hours at the beginning of her day handling her general paperwork and administrative duties. According to the "modifications" expert, recommendation of Catlin's however, these "paperwork" duties would have constituted the majority of Catlin's job upon her "accommodation."23 22 One duty that LIRC "found" Catlin able to do was "train." Catlin testified that there was a man who was not cross-trained when she began in the wholesale department. Because Catlin was the lead worker, it is assumed that she took on the crosstraining of this individual. This is the only instance in which Catlin indicated that she may have previously engaged in training, and even this is an assumption. Yet "training" is one of LIRC's findings of what Catlin could do after her injury. To be sure, it was also found that Catlin could no longer aid in loading and unloading trucks. There is some testimony that she only needed to do this occasionally, especially around December. It would seem that these two, relatively minor functions would cancel each other out. 23 According to Jeffrey Annis, the rehabilitation technologist who conducted an assessment of Catlin's job site and job capabilities for Catlin: As far as I can see, the only opportunity [Catlin] would have had to return to that position is if there would have been numerous accommodations put 5 No. ¶99 In any event, Catlin and several 02-0815.dtp other witnesses testified that one of the primary responsibilities of the four employees in this department was to undertake the jobs of the other three employees in the event of a temporary absence or if another employee were falling behind and needed help. For example, Catlin testified that she often "jumped in" to take 40pound blocks of cheese to and from the cooler and that some days she would do this "a couple of times a day." This task required her not only to lift the blocks but also to reach to the higher shelves in the cooler. Naturally, the ability of these four employees to work together and to work smoothly by filling in when needed was essential to the efficiency of the department's production process. In all, Catlin assisted with all the duties of the wholesale department on a daily basis and many of these duties she could no longer perform after her accident. ¶100 Nevertheless, LIRC concluded that Catlin could be assigned to performing all but the "heaviest physical tasks" in a department employees, where such including tasks Catlin, are were other's duties on a daily basis. commonplace required and to where all perform each Of course, LIRC's conclusion is based on a different view of the facts than that of the ALJ who first heard this case. Of particular concern is in place. The easier option would be to make modifications to her job description so she would be required, as lead person, to only do the paper work, final packaging, and filling out invoices, receipts, and packing lists. (Emphasis added.) 6 the No. difference frequency between by how which the ALJ Catlin and LIRC assisted 02-0815.dtp characterized other members the of the department, including help with the "heavy physical tasks." The ALJ concluded in his findings of fact that each employee in the department "regularly flowing smoothly had and absences occurred." to cover assist for each each other other to keep when work temporary Meanwhile, LIRC concluded that the duties which Catlin could not perform were tasks that she did not do "very frequently" occasionally." and were those that she "helped out only Well, which is it? II. LEVEL OF DEFERENCE ¶101 The majority begins its analysis by incorrectly finding that LIRC's legal conclusions in this case are entitled to extremely deferential standard of review. treatment under the "great weight" As this court has previously stated: Great weight deference is appropriate once a court has concluded that: (1) the agency was charged by the legislature with the duty of administering the statute; (2) that the interpretation of the agency is one of long-standing; (3) that the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) that the agency's interpretation will provide uniformity and consistency in the application of the statute. Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 660, 539 N.W.2d 98 (1995); N.W.2d 57 see also (1996); N.W.2d 14 (1992). UFE v. Linsey v. LIRC, LIRC, 201 171 Wis. 2d 274, Wis. 2d 499, 284, 548 505, 493 LIRC has failed to meet the second and fourth prongs of the test. Thus, I would conclude that great weight deference is an inappropriate standard of review. 7 No. ¶102 Though LIRC Wis. Stat. § 111.34, has LIRC's experience in interpretation of 02-0815.dtp interpreting the statute on matters related to this issue is not one of "long standing." Therefore, LIRC does not satisfy the second prong of the test. I believe that "[t]his is precisely the situation that warrants due weight deference: LIRC has had some experience interpreting [Wis. Stat. § 111.34], yet has circumstances we have here." not faced the particular Brauneis v. LIRC, 2000 WI 69, ¶19, 236 Wis. 2d 27, 612 N.W.2d 635. ¶103 Indeed, LIRC has yet to address the specific issue of whether "reasonable accommodation" under the WFEA includes a duty to eliminate multiple, basic job duties of an employee and to create a wholly different, previously nonexistent job for a disabled employee. LIRC incorrectly cites Fields v. Cardinal TG Co., ERD Case No. 1997-02574 (LIRC Feb. 16, 2001), as conclusive support for the proposition that LIRC has held a reasonable accommodation to require an employer to restructure the physical demands of the job in order to accommodate a disabled employee. Even putting aside that Fields was decided well after the evidentiary hearing in this case, that case actually held that an employer may not restructure the job of a disabled employee such that the employee is no longer able to perform it because of a disability. ¶104 Outside of Fields, LIRC cites no legal authority or precedent from its own opinions to directly support its prior history of following the rule it presently advances. Thus, while LIRC may have addressed cases that are similar to this 8 No. 02-0815.dtp question, this is the first occurrence under these particular circumstances. Therefore, great weight deference should not be afforded to LIRC s interpretation. See Local No. 695 v. LIRC, 154 Wis. 2d 75, 81, 452 N.W.2d 368 (1990). ¶105 To the extent LIRC has addressed issues related to modifying jobs as a means of accommodating an employee's disability, it has a spotty history of providing uniformity and consistency in applying § 111.34. In McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), LIRC was given no deference in its interpretation of § 111.34 due inconsistent statements regarding whether accommodation could include employee's another position. ever Id. at 274. an a to its reasonable transfer to LIRC had stated in its own decision in the matter that transferring a disabled employee to another position may be considered a reasonable accommodation. Id. When facing the court of appeals, however, LIRC reversed its position and argued that an employer's duty to accommodate could never include a transfer. Id. Not only did LIRC contradict itself within the framework of a single case, it did so on a topic similar to the issue in this case. ¶106 Indeed, McMullen is not the only case illustrating LIRC's limitations when interpreting § 111.34 on issues related to the present case. 8802872 (LIRC Feb. In Macara v. Consumer Co-op, ERD Case No. 14, 1992), LIRC held that the duty to accommodate does not require creating a position or discharging another employee to allow for a transfer of a disabled employee. Meanwhile, in 1988, the Wisconsin Personnel Commission, LIRC's 9 No. sister agency, § 111.34(1)(b) had and analyzed ruled § 111.34(2)(a) that the WFEA does 02-0815.dtp in light require not of an employer to create a new job or reassign job duties to other staff as a reasonable accommodation. Harris v. DHSS, Case No. 84-0109-PC-ER (Wis. Personnel Comm'n Feb. 11, 1988). "the employer's obligation is limited to the Rather, job-related responsibilities of the handicapped individual's employment visà -vis the particular job he or she occupies or for which he or she is applying." Id. at 14-15. In both of these decisions, the foregoing conclusions were not particular to the facts of the case but were offered as general legal principles. ¶107 If nothing else, this history indicates inconsistency in agency interpretations of Wis. Stat. § 111.34 on this matter. "[S]pecial deference to be afforded an agency is the result of a course of uniform interpretation over a period of time." No. 695, 154 Wis. 2d at 84. Local Given the preceding history, there has hardly been uniform application of § 111.34 by LIRC and the Wisconsin Personnel Commission. Therefore, due weight should clearly be afforded in this case. ¶108 Under the due weight standard, "a court need not defer to an agency's interpretation which, while reasonable, is not the interpretation reasonable." Brauneis, 236 which the court considers best and most Harnischfeger, 196 Wis. 2d at 660 n.4; see also Wis. 2d 27, ¶20 ("Pursuant to due weight deference, an agency's statutory interpretation is accorded some weight, but is not conclusive."). LIRC's statutory interpretation. 10 This court is not bound by See Brauneis, 236 Wis. 2d 27, No. ¶15. 02-0815.dtp "The fact that the agency's interpretation is reasonable does not mean upheld. that its interpretation necessarily be If a court finds an alternative interpretation more reasonable, it need not adopt UFE, 201 Wis. 2d at 287. means will of its own the agency's interpretation." Therefore, if this court finds, by independent analysis, an alternative interpretation that is more reasonable, then it need not adopt the agency's interpretation. ¶109 By adopting an incorrect level of deference regarding LIRC's legal conclusion, this court has abdicated its role to define the law established under Chapter 111 and has passively allowed the establishment interpretation of the of law. a At wholly a less minimum, reasonable given the inconsistency of the administrative agencies addressing similar issues, and the lack of LIRC decisions addressing this precise issue, this court should have engaged in an independent review of what § 111.34 demands on this question. III. PROPER APPLICATION OF WIS. STAT. § 111.34 ¶110 The WFEA prohibits basis of disability. Accordingly, it is employment See discrimination Wis. Stat. §§ 111.321, unlawful employment on the 111.34. discrimination to "refus[e] to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation employer[] . . . ." ¶111 However, would pose a hardship on the Wis. Stat. § 111.34(b). the legislature has provided affirmative defenses to a WFEA claim of employment discrimination based on 11 No. disability. In the present case, we need 02-0815.dtp only look at § 111.34(2)(a), which states: Notwithstanding s. 111.322 [the prohibition against employment discrimination], it is not employment discrimination because of disability to refuse to hire, employ . . . to bar or terminate from employment . . . any individual . . . if the disability is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment . . . . Wis. Stat. § 111.34(2)(a) (emphasis added). ¶112 The majority quite accurately describes the relationship between §§ 111.34(1)(b) and 111.34(2)(a), stating: "Taken together, [the provisions] require an employer to prove that even with reasonable accommodations, the employee would not be able to perform his or her job responsibilities, or that, where reasonable accommodations would enable the employee to do the job, hardship would be placed on the employer." Majority op., ¶32 (citing Target Stores v. LIRC, 217 Wis. 2d 1, 17, 576 N.W.2d 545 (Ct. App. 1998)) (emphasis added). Unfortunately, the majority fails to apply the foregoing standard and, in the process, adopts LIRC's improper application of § 111.34. approach rewrites the statute to generate a LIRC's nonexistent requirement that employers retain or hire someone who is unable to perform the responsibilities of any existing job, even with reasonable physical accommodations. ¶113 Crystal § 111.34(1)(b) Lake has met and § 111.34(2)(a), articulated by the majority. the even requirements under the of formulation First, Catlin is unable to perform all her existing job responsibilities, much less perform them 12 No. all adequately as required by § 111.34(2)(a). 02-0815.dtp Second, Catlin is unable "to do the job" that she has been performing. Instead, she is only able to perform a new and more limited job one that is substantively different from her prior position. ¶114 As discussed earlier, Catlin significant, daily elements of her job. is now unable to do In particular, she is now frequently unable to "step in" and assist other members of the department to keep production going smoothly. It is unreasonable to interpret § 111.34 to require Crystal Lake to retain an employee who, by virtue of her disability, is unable to perform these necessary elements of her job and to create a job devoid of these duties, when no such job previously existed.24 ¶115 LIRC itself has argued as much, and in a situation much more favorable to an employee's protections under § 111.34. In LIRC's brief before the court of appeals in McMullen, a case that is discussed above, LIRC argued that "the duty to accommodate an employee's handicap under the WFEA . . . does not require an employer to transfer the employe to a different job." Brief of LIRC at 24, McMullen v. LIRC, 148 Wis. 2d 270. 24 Would this court have reached the same decision if Crystal Lake declined to hire someone for the wholesale department's lead position because that applicant suffered from Catlin's disability and was unable to do the same elements of the job that Catlin was unable to perform? The WFEA applies equally to applicants as it does to current employees. Wis. Stat. § 111.32(1). After today's decision, a Wisconsin employer must be prepared to post job openings in which it may ultimately be required to hire someone who, even with accommodations, will not be able to perform the duties attributed to that position. 13 No. ¶116 To be sure, some job responsibilities 02-0815.dtp may not be necessary, in that they do not fundamentally alter the job being performed. Nevertheless, as a general matter, the reasonable accommodations required under § 111.34(1)(b) must go to aiding the employee or applicant in performing the job responsibilities for which they are, or will be, hired. There will be times when an employer will have to endure additional costs to reasonably accommodate an individual so that the employee can perform all of his or her job duties. Because of the additional cost of employing this individual over someone who would not require accommodation, the employer would likely prefer, as a economic matter, not to hire the disabled person. made this type of discrimination The WFEA, however, has unlawful. It is this protection that is wisely provided by the WFEA. ¶117 What the WFEA does not make unlawful is an employer's decision not to hire or retain an employee who, because of his or her disability, cannot perform the necessary duties of the job, even with all reasonable accommodations. ¶118 The questionable reasoning of LIRC's interpretation is seen in the circularity of the majority's holding, in which it states, "we hold that requiring Crystal Lake to modify the job duties of Susan Catlin and make physical accommodations to the workplace, was not unreasonable. accommodations, she adequately, job-related ¶3. her would have the With such ability reasonable to undertake, responsibilities." Majority op., Assuming that "job duties" and "job responsibilities" are synonymous, how can Catlin 14 undertake her job-related No. responsibilities, "adequately" or otherwise, need to perform those responsibilities? if she 02-0815.dtp does not LIRC and the majority use "modify" as a euphemism so as to require Crystal Lake to eliminate multiple, basic duties of the job for which Catlin was hired. Even worse, the majority endorses the nebulous notion that an employee or applicant need only perform "some" or "most" of his or her job duties.25 ¶119 Catlin and LIRC also misconstrue legislative intent of the WFEA. full employment encourages with the of full disabilities. people well-expressed The WFEA does not mandate the with employment the of disabilities properly Wis. Stat. § 111.31(3). per se. qualified Catlin It persons and LIRC consistently argue for and the majority apparently grants them an interpretation of § 111.34 that effectuates a purpose in the WFEA whereby Crystal Lake is required to give Catlin some job any job even one that does not fit within the structure of the business enterprise. This outcome is not what the WFEA intends for persons who are unable to perform a job. By virtue of her injuries, Catlin was not properly qualified to perform the job for which she was hired; nor could she have been reassigned to another job that was open for which she was qualified. 25 This answer is inconsistent with the majority's formulation of the primary issue in this case, which it describes as: "whether, with reasonable accommodations Catlin must then be able to perform all of the job-related responsibilities adequately." Majority op., ¶44. 15 No. ¶120 Catlin accommodations does would not argue adequately that and 02-0815.dtp reasonable physical reasonably compensate for her disability and thereby allow her to perform the necessary functions of her job. Therefore, even if the court finds that the physical accommodations demanded by Catlin and LIRC are not unreasonable and do not impose a hardship,26 § 111.34(2)(a) still requires that the employee be able to actually do the necessary functions of the job with those accommodations. conceded that Catlin is unable to do many of Again, it is the necessary duties of her job that she had performed daily. ¶121 The inescapable effect of LIRC's ruling is that Crystal Lake must either (1) have nobody perform the duties that Catlin used to do, and thereby decrease productivity; (2) hire a new employee to do these duties and incur unnecessary costs27; or (3) have other existing employees undertake the duties that Catlin can no longer perform, thereby taking these employees away from the duties they would otherwise be performing. Each of these options necessarily imposes hardship on an employer in a manner that § 111.34(2)(a) expressly states need not occur. ¶122 Businesses must worry about profit, which is achieved through efficiency. Crystal Lake assigned specific job duties 26 I do not concede that Crystal Lake has failed to establish hardship based on the physical accommodations required of the facility to handle Catlin's needs. 27 LIRC stated in its Memorandum Opinion that Crystal Lake failed to establish that it would have needed to hire additional help if Catlin was permitted not to perform all her duties. However, before the ALJ, Phillip Robertson, Crystal Lake's operations manager, directly testified that the company would have been required to hire additional help in this situation. 16 No. to the individuals increase efficiency. in Catlin's department, 02-0815.dtp presumably to Indeed, all the members of the department were cross-trained in all the other jobs in order to be more efficient and diverse in their roles in the production process. Take away one of the components in this process, and an intimate, finely tuned, production process loses the level of productivity set by the employer for this four-person unit. ¶123 As the majority admits, all four workers in Crystal Lake's wholesale department were cross-trained in all four positions, "and all were capable of assisting one another when an employee fell behind, or when the department was busier than Majority op., ¶8.28 usual." This "assistance" is a requirement of each person's job, not a matter of mere "capability." virtue of Catlin's disability, which confines her to By a wheelchair, she is now frequently incapable of assisting other employees in the department as needed. How, then, can she perform these necessary elements of her job? ¶124 Remarkably, LIRC and the majority twist the significance of this cross-training to make much out of the notso-surprising testimony that Catlin's mother and sister would 28 We would add to these circumstances assisting each other at times when an employee was absent, either due to illness or to other demands of the job. 17 No. 02-0815.dtp "help" with the job duties that Catlin could not do.29 op., ¶¶70, 78. Majority This discussion is irrelevant and inappropriate. Section 111.34(2)(a) addresses the ability of the employee or applicant at issue to "adequately undertake the responsibilities of that individual's employment." it ignores the fact that such job-related In addition, "accommodation" necessarily diverts Catlin's mother and sister from their own duties. ¶125 Finally, there has been much ado about nothing related to Crystal Lake's method of determining if Catlin could have been accommodated. Crystal Lake, It when it is not necessary assessed in whether this case Catlin could that be reasonably accommodated to perform her job, talk with Catlin or inform the professional evaluator anything more about disability than that she was confined to a wheelchair. her In some instances, such as this case, there are certain realities in what a person confined to a wheelchair is physically unable to do, even with all reasonable physical accommodation. ¶126 It is telling that the majority offers no authority to directly support the reasonableness of LIRC's interpretation of § 111.34. cites do Contrary to what the majority asserts, the cases it not hold "that a reasonable 29 accommodation [is] not In fact, the majority states that Catlin argued that "[t]he other department members did not object even if [performing Catlin's heavy physical tasks] meant they would get disproportionate share of those duties." This appears to be an overstatement, as only two of the three other members (Catlin's mother and sister) testified that they would agree to do so. In addition, this testimony, besides being inherently biased, is speculative, because by the time of the hearing in this case, Crystal Lake had apparently eliminated the wholesale department at which these employees worked. 18 No. 02-0815.dtp limited to only an accommodation that would permit the employee to perform all of his or her job responsibilities." Majority op., ¶47. ¶127 Target Stores, 217 Wis. 2d 1, involved a temporary and treatable disability. The court of appeals held in favor of the complainant, even though the accommodation would not allow the complainant to perform all her job duties immediately. 14. Id. at However, the complainant's disability (sleep apnea) was a temporary one that was treatable. After a short treatment period, the employee would have likely been able to perform all her job duties. rehabilitation will Id. at ever 7. It allow is her unlikely to that perform all duties, in either the short-term or long-term future. Catlin's her job Target Stores is clearly distinguishable. ¶128 In McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W.2d 830 (Ct. App. 1988), the complainant was seeking a transfer to an open position for which he was qualified. The court held that a reasonable transfer accommodation may include a to an open position for which the employee is qualified, though, depending upon the facts of each individual case, such transfer may also be considered a hardship. Id. at 271. The majority's assertion that Catlin's required accommodation is similar to what occurred in McMullen and "was essentially a change or modification in the employee's job-related responsibilities," majority op., ¶49, is inaccurate. In McMullen there was a transfer to a different, vacant position that the company needed to fill anyway. Catlin is not requesting a transfer to an existing, open position for 19 No. which she is qualified. 02-0815.dtp She is asking for her old job back, with certain daily job responsibilities eliminated because she can no longer adequately perform them, even with accommodation. This is a critical distinction from McMullen. ¶129 Finally, in Frito Lay, Inc. v. LIRC, 95 Wis. 2d 395 (Ct. App. 1980), the issue of accommodation was not one in which any new job was created; rather the complainant was once again reassigned to a position that he was qualified to fill namely, driving intrastate interstate trucking routes, which routes his rather disability than prevented driving him from doing. ¶130 In all, unlike Target Stores, McMullen, and Frito Lay, the position that LIRC and the majority opinion claim that Catlin should "fill" did not exist at the time of her injuries, did not exist when Crystal Lake was assessing whether Catlin could be adequately accommodated to do her job, and exists now only by fiat of LIRC. ¶131 In all, LIRC's interpretation of § 111.34, as adopted by the majority, unreasonable burden is highly questionable on Wisconsin and businesses. imposes Section an 111.34 cannot be read to require that an applicant or employee only be able to perform "some" responsibilities of the job. reasonable accommodation or the necessary See majority op., ¶63. Rather, a under "most" of § 111.34(1)(b), when read together with § 111.34(2)(a), is one that permits an employee to perform adequately all of his or her necessary job duties or, in some instances, to perform all 20 the necessary job duties of No. 02-0815.dtp another existing job. Under the facts of this case, Crystal Lake its has fully met burden under § 111.34(2)(a) of demonstrating that Catlin's disability is reasonably related to her ability to adequately undertake the job responsibilities of her employment. IV. DUE PROCESS & SUBSTANTIAL EVIDENCE ¶132 The majority opinion concludes by rejecting Crystal Lake's contention that LIRC improperly reached its decision by failing to confer before the ALJ. with the ALJ regarding evidence submitted The majority states that LIRC's findings did not "hinge on issues of witness credibility," and therefore LIRC was not required to consult with the ALJ. ¶133 The majority errs, however, Majority op. ¶¶4, 54. in suggesting that the only element of credibility at issue was that of Crystal Lake's operations manager, constructing incomplete. reach its a Phillip Robertson, wheelchair-accessible regarding the bathroom. cost This of is The credibility assessments required for LIRC to conclusions involved other matters. Of primary importance are the conflicting findings regarding the frequency by which Catlin had performed the job responsibilities that she could not perform after her accident. LIRC's factual findings regarding which job responsibilities the complainant could or could not perform after her accident, even with physical accommodation, were based almost completely on testimony from the complainant. See majority op., ¶63 ("Catlin felt that she would be able to perform most tasks that were part of her job with little or no accommodation."). 21 From this, LIRC concludes No. that Catlin could perform "most" of her duties. 02-0815.dtp See majority op., ¶63. ¶134 The problem is that this ultimately dispositive factual finding, which is of questionable reliability and is based on credibility assessments, is then applied to LIRC's new and incorrect interpretation of § 111.34. It is telling that even the majority seems tentative on this conclusion, stating "Crystal Lake could have accommodated Catlin's disability [ ] by modifying her responsibilities. This is an accommodation, we hold, that appears to be reasonable under the circumstances and within the purview of the WFEA." Majority op., ¶78 (emphasis added). ¶135 Even correct, the adoption of if ALJ LIRC's based Crystal interpretation his Lake's assessment theory of of not law, § 111.34 solely but were upon also an on his findings that the job duties that Catlin could not now perform were ones she used to do "regularly." consult with the ALJ to determine Therefore, LIRC needed to the basis upon which reached a different factual conclusion on this matter.30 30 it See As but one example of Catlin's testimony that undermines LIRC's "not very frequently" finding is the following: [ATTORNEY GROISS]: Now you indicated . . . that the cutting of the cheese was a cutter's responsibility, and you say you didn't you rarely had to cut the cheese, but you took it upon yourself to do that; is that correct? [CATLIN]: Yes. [GROISS]: And when you're talking about this this this cutting of the cheese, when you say "rarely," you would be cutting cheese several times during the 22 No. Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 02-0815.dtp 617, 583 N.W.2d 662 (Ct. App. 1998); Hoell v. LIRC, 186 Wis. 2d 603, 614, 522 N.W.2d 234 interpretation critical. (Ct. of App. 1994). § 111.34, Again, this even factual under LIRC's determination was Furthermore, Catlin, LIRC, and the majority have each relied on testimony from Catlin's mother and sister, who happen to be two of the three other employees in the wholesale department, who claimed that they could "pick up the slack" and cover Catlin's job duties as needed. Majority op., ¶29. The credibility of these statements is also at issue. ¶136 These findings, it seems to me, are undoubtedly based on credibility assessments. Therefore, I disagree that it was permissible for LIRC to reach factual conclusions without having conferred with the ultimately reversed. administrative law judge, whom LIRC At a minimum, this case should be remanded so that LIRC can be required to consult with the ALJ and to determine why LIRC and its administrative law counterpart course of the week, would you not, as a normal course of your job function? [CATLIN]: Not several, no. [GROISS]: What, once a week? You have no answer? [CATLIN]: It's a hard question to answer. [GROISS]: And that's because you're always doing these various functions; is that correct? [CATLIN]: If we get busy, yeah. [GROISS]: You're always being asked to fill in this instance and do these various jobs; is that correct? [CATLIN]: Yeah. 23 No. 02-0815.dtp reached two different assessments regarding the nature of the duties Catlin could and could not do and to determine if the ALJ's conclusion was based on more than merely an adoption of a different rule of law. ¶137 I am authorized to state that JUSTICES JON P. WILCOX and DIANE S. SYKES join this dissent. 24
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
