Stoughton Trailers, Inc. v. Labor and Industry Review Commission

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2007 WI 105 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2004AP1550 Stoughton Trailers, Inc., Petitioner-Appellant-Petitioner, v. Labor and Industry Review Commission and Douglas Scott Geen, Respondents-Respondents. REVIEW OF A DECISION OF THE COURT OF APPEALS 2006 WI App 157 Reported at: 295 Wis. 2d 750, 721 N.W.2d 102 (Ct. App. 2006-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 17, 2007 March 7, 2007 Circuit Dane Michael N. Nowakowski PROSSER, J., dissents (opinion filed). WILCOX, J., joins the dissent. ROGGENSACK, J., did not participate. ATTORNEYS: For the petitioner-appellant-petitioner there were briefs by Amy O. Bruchs, Scott C. Baumbach, and Michael Best & Friedrich LLP, Madison, and oral argument by Amy O. Bruchs. For the respondents-respondents Labor and Industry Review Commission, there were briefs by David C. Rice, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, and oral argument by David C. Rice. For the respondents-respondents Douglas Scott Geen, there were briefs by Victor M. Arellano, John C. Carlson, Jr., Matthew P. White, and Lawton & Cates, S.C., Madison, and oral argument by John C. Carlson, Jr. An amicus curiae brief was filed by Monica Murphy, Milwaukee, on behalf of the Disability Rights of Wisconsin. An amicus curiae brief was filed by Laura A. Linder, C. Ann Martin, and Lindner & Marsack, S.C., Milwaukee, on behalf of the Wisconsin Manufacturers & Commerce, Inc., there was oral argument by Laura Lindner. An amicus curiae brief was filed by Melissa A. Cherney, Madison, on behalf of the Wisconsin Education Association Council. 2 2007 WI 105 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2004AP1550 (L.C. No. 2003CV3050) STATE OF WISCONSIN : IN SUPREME COURT Stoughton Trailers, Inc., FILED Petitioner-Appellant-Petitioner, v. JUL 17, 2007 Labor and Industry Review Commission and Douglas Scott Geen, David R. Schanker Clerk of Supreme Court Respondents-Respondents. REVIEW of a decision of the Court of Appeals. ¶1 LOUIS B. BUTLER, JR., J. Affirmed. Stoughton Trailers, Inc. ("Stoughton") seeks review of a published decision of the court of appeals1 affirming a decision of the Labor and Industry Review Commission ("LIRC"), which concluded that Stoughton refused to reasonably accommodate Douglas Scott Geen's ("Geen") disability, migraine headaches, within the meaning of Wis. Stat. § 111.34(1)(b) (2005-06),2 and terminated Geen because 1 Stoughton Trailers, Inc. v. LIRC, 2006 WI App 157, 295 Wis. 2d 750, 721 N.W.2d 102. 2 All references to the Wisconsin Statutes are to the 200506 version unless otherwise indicated. No. 2004AP1550 of his disability within the meaning of Wis. Stat. §§ 111.322 and 111.34. ¶2 Fair This case Employment determination. involves Act interpretation ("WFEA") and of review the of Wisconsin an agency Thus, our authority in this case is governed by: (1) the will of the legislature as expressed in the language of the WFEA, and (2) the appropriate level of deference accorded to a determination of the agency charged by the legislature with administrating the WFEA. ¶3 Stoughton determined under that terminated accumulated he Stoughton's Geen's 6.5 no-fault employment absences attendance or policy, after it "occurrences" exceeding the policy's limit of six "occurrences" in a prescribed time period. Two of these "occurrences" were caused by Geen's migraine headaches, while the remaining "occurrences" were unrelated to Geen's disability. ¶4 LIRC concluded that Stoughton terminated Geen because of his disability within the meaning of the WFEA, holding that the two "occurrences" sufficient to caused conclude disability. LIRC reasonably accommodate that further by the Geen's termination concluded Geen, in disability that that it was because Stoughton failed were to of did not give him sufficient time to submit documentation to avoid being assessed an "occurrence" under its attendance policy, and it failed to exercise "clemency temporarily tolerate and the forbearance" absences that when were it refused caused by to his disability to allow medical intervention to take its course and 2 No. potentially resolve the problem of Geen's absences. 2004AP1550 The circuit court and court of appeals affirmed LIRC on both issues. ¶5 We conclude a more reasonable basis decision exists than the one adopted by LIRC. for LIRC's To wit, we note that Stoughton did not follow its own no-fault attendance policy in terminating Geen when it failed to provide him with 15 days as allowed under the policy to submit documentation to avoid being assessed an "occurrence." follow its own no-fault Because attendance Stoughton policy, it may did not not claim whatever protection that policy may provide in its termination of Geen. Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably based on the unique circumstances surrounding circumstances, Stoughton we that conclude terminated Geen termination. that LIRC's because of Based on these determination that his disability was reasonable. We therefore do not address the issue of whether a termination for permitted under exceeding a no-fault the maximum attendance number policy is of absences because of disability under the WFEA when some of the absences were caused by disability and others were not.3 3 The dissent chides this court for "abdicat[ing] its role as the state's ultimate policy making court," and later for "adding insult to injury" by deciding this case on the grounds that are presented by the facts. Dissent, ¶¶76, 78. In essence, the dissent faults this court for exercising judicial restraint. 3 No. ¶6 2004AP1550 We further conclude that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen. Additionally, we conclude that its ordered remedy was reasonable. Accordingly, we affirm. I ¶7 The facts relevant to the issues presented on review are taken from LIRC's decision of September 12, 2003, and are undisputed. no-fault Stoughton, a manufacturer of semi-trailers, has a attendance policy for its employees. The policy includes a point-based system under which employees are assigned "occurrences" for tardiness exceptions, including Family Medical and terminated under the and absences, "[a]bsences Leave meeting State laws." An [FMLA] policy if subject he or she to limited and Federal employee accumulates is six "occurrences." ¶8 Under Stoughton's no-fault attendance policy, an employee who is absent from work due to a medical condition is provided a standard letter with a Family and Medical Leave Act ("FMLA") form to complete and return to the human resources In general, this court decides cases on the narrowest grounds presented. See Barland v. Eau Claire County, 216 Wis. 2d 560, 566 n.2, 575 N.W.2d 671 (1998). We do not reach out to decide issues not presented by the facts just because we can. We settle disputes. Here, the facts present a narrower ground for decision than the broad ground upon which the dissent so eagerly wishes us to base our decision. We fail to see how this well accepted approach "add[s] insult to injury." Dissent, ¶78. Insult to whom? Injury to whom? We have merely resolved this dispute between Geen and Stoughton. 4 No. department. she will 2004AP1550 If the employee returns the completed form, he or not be assessed an "occurrence." However, if the employee does not return the certification form within 15 days (but does submit other proof that their absence was for a medical condition), the employee is assessed one "occurrence," regardless of the duration of the leave. submitted a medical excuse for a In this case, Geen mid-December 1996 to early January 1997 extended absence but not the FMLA form and thus was assessed one "occurrence." ¶9 Geen worked for Stoughton for approximately eight years, until January 31, 1997, when he was fired for exceeding the number of "occurrences" allowed under the attendance policy. ¶10 As "occurrences" disability. of December under the 11, 1996, policy, Geen none had of accumulated which were 4.5 due to From December 12, 1996, through January 7, 1997, Geen was absent from work because of severe headaches. Geen sought medical attention at least three times during this period and was diagnosed depression. Geen as was suffering from prescribed migraine the depression and Midrin for his migraines. drug headaches Paxil for and his This leave of absence constituted Geen's first disability-related "occurrence" under the attendance policy, bringing his total to 5.5 "occurrences." ¶11 Geen returned to work on January 8, 1997. On Friday, January 24, 1997, Geen called in before his shift and said that he could not work because he had a migraine. Geen called in sick again with migraines on the following Monday and Tuesday mornings, January 27 and 28. When Geen returned to work on 5 No. January 29, 1997, Stoughton's human resource 2004AP1550 administrator, Tammy Droessler ("Droessler"), provided Geen with a copy of a standard letter noting that Geen had been absent from work since the previous Friday. The letter explained the need to submit a completed FMLA form within 15 days of the date of the letter if Geen was to avoid having the absence counted as an "occurrence" under Stoughton's no-fault attendance policy.4 Droessler also reminded Geen orally that he would need to submit the FMLA form to avoid being assessed an "occurrence." ¶12 On physician, January Dr. M.A. 30, 1997, Hansen, who Geen was examined concluded that Geen by his showed "textbook examples of migraine headaches, which has increased in frequency Paxil." and intensity since beginning a prescription of Dr. Hansen took Geen off Paxil and again prescribed Midrin for his headaches. for Geen in one week. Dr. Hansen scheduled a follow-up exam Dr. Hansen provided Geen with a note stating that he was being evaluated for migraines. Later that day, Geen gave the note to Droessler, who told Geen that he needed to bring in a doctor's note stating he could return to work without restrictions. ¶13 The next day, January 31, 1997, Geen gave Droessler a second note from Dr. Hansen indicating he had been unable to work on January 27 and 28 because of migraines but was now 4 Fifteen days is the minimum time the FMLA requires employers to give employees to submit medical certification. See 29 C.F.R. § 825.305(b). Stoughton incorporated this requirement of the FMLA in its no-fault attendance policy. The FMLA itself is not at issue in this case. See infra, ¶58 n.12. 6 No. cleared to work without restrictions. Geen s absence Droessler on informed January 24. Geen was he 2004AP1550 The note did not address After being reviewing discharged the note, because the doctor's note did not excuse him for January 24, causing him to accrue an "occurrence" for that date, which brought his total number of "occurrences" to 6.5. Geen was given two days from the date he received the standard letter (January 29) to the date of his termination (January 31) and not 15 days as provided under Stoughton's no-fault termination policy to submit the FMLA form to avoid being assessed an "occurrence." ¶14 evaluate Geen indicated that his doctor needed more time to him, and that his doctor would be unavailable to provide additional medical documentation for at least a week. Droessler told Geen that he had three working days from Friday, January 31 to write a letter to the company's Attendance Review Board ("Board") in order to try to reverse the assessment of the 7 No. "occurrence." 2004AP1550 She said that he could submit additional medical documentation to the Board.5 ¶15 By letter dated February 4, 1997, Geen timely appealed his termination to the Board. Geen indicated his doctor was currently evaluating his headaches and had indicated that he would perform additional tests and change Geen's medication if the headaches persisted. Geen did not submit any additional medical documentation with his letter. On February 21, 1997, the Board rejected Geen's appeal. ¶16 On February 24, 1997, Geen filed a disability discrimination complaint with the Equal Rights Division of the Department of Workforce Development ("DWD") alleging Stoughton 5 The hearing examiner's decision in this case contains additional findings of fact that are not included in LIRC's decision but are not inconsistent with LIRC's decision. See Geen v. Stoughton Trailers, ERD No. 199700618 (ERD, September 29, 1999). These included that Droessler knew of two ways that Geen could have avoided the assessment of an "occurrence" and kept his job. Id., p. 4. First, Geen could have demonstrated that his January 24, 27 and 28 absences qualified for family and medical leave by submitting a completed FMLA form, the option discussed at length in LIRC's decision and in this opinion. Id. Second, Stoughton could have compared the reasons for Geen's previous medical leave of absence from December 1996 to early January 1997 to the reasons for his January 24, 27 and 28 absences and assessed him only one "occurrence" for these two periods of absence. Id. According to the hearing examiner's decision, Droessler did not consider combining the periods of absence into a single "occurrence," and rather chose to terminate Geen's employment only two days into the 15-day period for submission of the FMLA documentation. Id. The hearing examiner's decision also indicates that Geen did not submit any additional medical documentation to the Attendance Review Board, although Geen had a follow-up exam with his doctor on February 7, 1997. Id., p. 5. 8 No. 2004AP1550 terminated his employment because of his disability in violation of the WFEA. A hearing examiner6 ruled that (1) Geen had a disability defined as by the WFEA; (2) his employment was terminated in part because of his disability; and (3) Stoughton had failed to reasonably accommodate Geen's disability. ¶17 Stoughton appealed to LIRC. LIRC reversed, concluding that Stoughton had not refused to reasonably accommodate Geen's disability. 199700618 Geen v. Stoughton (LIRC, August 31, Trailers, 2000). Inc., LIRC ERD Case No. dismissed Geen's Circuit Court, complaint. ¶18 Geen appealed Honorable John dismissing the LIRC. C. to the Albert, complaint Dane which and County set ordered the aside LIRC's matter order remanded to Stoughton sought review of the circuit court decision with the court of appeals. ¶19 The court of appeals determined that Stoughton concluded did not that while discriminate LIRC against had Geen because of disability, it expressly left open the more narrow question of disability. whether Geen was terminated because of his See Geen v. LIRC, 2002 WI App 269, ¶34 n.8, 258 Wis. 2d 498, 654 N.W.2d 1. The court of appeals noted that LIRC's decision discussed whether a termination could be because of disability when two of the 6.5 "occurrences" were due to 6 The WFEA refers to persons who hear and decide WFEA complaints as "examiners" and not "administrative law judges." See Wis. Stat. § 111.39(4). This opinion therefore uses the term "examiner." 9 No. 2004AP1550 disability, but concluded only "'there is no bright-line rule' regarding when discriminatory a on 'no-fault' account of attendance policy disability-related becomes absences." Geen, 258 Wis. 2d 498, ¶34 n.8 (quoting Geen, ERD Case No. 199700618 (LIRC, August 31, 2000)). The court of appeals also concluded LIRC should have considered the applicability of the Family and Medical Leave Act ("FMLA") to Geen's case. The court of appeals remanded the matter to LIRC to consider, to the extent it is necessary to do so, either or both of the following issues: (1) whether on the present facts Stoughton terminated Geen's employment because of his disability; and (2) whether the FMLA or regulations enacted thereunder affect Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how. Geen, 258 Wis. 2d 498, ¶36. Stoughton filed a petition for review, which the Supreme Court denied on January 21, 2003. ¶20 On remand, LIRC concluded Stoughton terminated Geen because of his disability and failed to reasonably accommodate his disability. Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 (LIRC, September 12, 2003). LIRC's decision included a cease and desist order, reinstatement of Geen, and an award of back pay and attorneys fees and costs. ¶21 Honorable decision. Stoughton appealed to the Dane County Circuit Court, Michael N. Nowakowski, Stoughton sought review which in which affirmed the circuit court's order. affirmed the court of the LIRC appeals, The court of appeals concluded LIRC's determination that Stoughton terminated Geen's employment because of his disability was based on a reasonable 10 No. 2004AP1550 interpretation of the relevant provisions of the WFEA and that Stoughton's interpretation of the statute reasonable. Stoughton Trailers, Inc. v. LIRC, 2006 WI App 157, ¶24, 295 Wis. 2d 750, 721 N.W.2d 102. was not more The court of appeals also concluded that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen's disability. concluded that Id., ¶47. LIRC Further, the court of appeals properly exercised its discretion in applying the "in-part" test adopted in Hoell v. LIRC, 186 Wis. 2d 603, 609-11, 522 N.W.2d 234 (Ct. App. 1994), to establish Geen's remedy. Stoughton Trailers, 295 Wis. 2d 750, ¶35. Stoughton filed a petition for review, which we granted. II ¶22 The Wisconsin Fair Wis. Stat. §§ 111.31-111.395, Employment prohibits Act ("WFEA"), discrimination in employment on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, membership in the national guard, state defense force or military reserves, or the use or nonuse of lawful products off the employer's premises on the employee's personal time. purpose is practicable Wis. Stat. § 111.321. "to encourage the and employment The WFEA states that its foster of to all the fullest properly extent qualified individuals" regardless of their status as a member of a class protected by the statute, liberally construed for and the that its provisions accomplishment Wis. Stat. § 111.31(3). 11 of this "shall be purpose." No. ¶23 provides Wisconsin Stat. § 111.34(1)(b) 2004AP1550 that "[e]mployment discrimination because of disability includes, but is not limited to . . . [r]efusing 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."7 the court of appeals noted, to prevail on his As disability discrimination claim under the WFEA, Geen must first establish that he has a disability within the meaning of Wisconsin's fair employment law. Second, Geen must prove that Stoughton terminated him because of his disability. Third, if Geen proves these two elements, the burden then shifts to Stoughton to justify the termination. Stoughton may do so by proving that Geen's disability is "reasonably related" to his ability to do his job and that either: (1) Stoughton reasonably accommodated Geen's disability prior to his termination; or (2) any accommodation would have posed a hardship on its business. Stoughton Trailers, 295 Wis. 2d 750, ¶13 (quoting Geen, 258 Wis.2d 498, ¶15 (citations omitted) (emphasis in original)). ¶24 Stoughton does not dispute that migraine headaches are a disability within the meaning of the WFEA. 7 Geen has not The dissent asserts that because the court concludes that Stoughton violated its no-fault policy by not giving Geen 15 days to submit medical documentation before it assessed an occurrence against him, it "leaps to the determination . . . that . . . Stoughton intentionally discriminated against Geen when it terminated him." Dissent, ¶93. The dissent ignores the statutory definition of employment discrimination, which includes "[r]efusing to reasonably accommodate an employee's or prospective employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business." Wis. Stat. § 111.34(1)(b). 12 No. 2004AP1550 argued that his migraine headaches are not "reasonably related" to his ability to do his job. assert that a reasonable Moreover, Stoughton does not accommodation would pose a hardship on its business. issues in this case are whether of Geen's disability The two primary disputed Stoughton terminated Geen because of his disability, and whether Stoughton took adequate steps to reasonably terminating him. accommodate Geen's disability prior to We address each of these issues in turn. A ¶25 Stoughton contends that, prior to LIRC's second decision in this case, the settled rule in Wisconsin was that it is not discrimination because of disability for an employer to terminate an employee by even-handed application of the employer's no-fault attendance policy when a majority of the employee's absences causing termination were not related to the employee's disability. Stoughton further maintains LIRC erred in applying the "in-part" test used in Hoell, 186 Wis. 2d at 608, because the "in-part" test is appropriate only in cases in which discriminatory intent is a motivating factor in the decision to terminate, and intent (discriminatory or otherwise) is not a factor in a termination that is based on a violation of a no-fault attendance policy. Alternately, Stoughton asserts that if the "in-part" test does apply here, LIRC nonetheless ordered the wrong remedy. Before addressing these arguments, we consider the appropriate standard of review to apply to LIRC's determination that Geen was disability. 13 terminated because of his No. 2004AP1550 1 ¶26 When reviewing a decision of an administrative agency, this court reviews the agency's decision, not the decision of the court of appeals or the circuit court. Racine Harley- Davidson, Inc. v. Div. of Hearings and Appeals, 2006 WI 86, ¶8 n.4, 292 Wis. 2d 549, 717 N.W.2d 184. A reviewing court accords an interpretation of a statute by an administrative agency one of three levels of deference great weight, due weight or no deference based on the agency's expertise in the area of law at issue. See DaimlerChrysler v. LIRC, 2007 WI 15, ¶15, _ _ Wis. 2d __ , 727 N.W.2d 311. ¶27 An agency's interpretation of a statute is entitled to great weight deference when: (1) the agency was charged by the legislature with the duty of administering the statute; (2) the interpretation of the agency is one of long-standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity in the application of the statute. DaimlerChrysler, ___ Wis. 2d ___, ¶16. ¶28 We grant an intermediate level of deference, due weight, "where an agency has some experience in the area, but has not developed any particular expertise in interpreting and applying the statute at hand" that would put the agency in a better position to interpret the statute than a reviewing court. Responsible Use of Rural and Agric. Land (RURAL) v. Pub. Serv. Comm'n of Wis., 2000 WI 129, ¶24, 239 Wis. 2d 660, 619 N.W.2d 888. 14 No. 2004AP1550 The deference allowed an administrative agency under due weight is not so much based upon its knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question. [Under the due weight standard] . . . , a court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available. Id. (quoting UFE, Inc. v. LIRC, 201 Wis. 2d 274, 286-87, 548 N.W.2d 57 (1996)). ¶29 that We apply de novo review when "there is no evidence the agency has any special interpreting the statute[,] . . . is clearly one of first expertise or experience the issue before the agency impression, or . . . the agency's position on an issue has been so inconsistent so as to provide no real guidance." Brauneis v. LIRC, 2000 WI 69, ¶18, 236 Wis. 2d 27, 612 N.W.2d 635 (citations omitted). ¶30 Stoughton contends that we should apply de novo review because LIRC's decision was based on an interpretation of the disability provisions of the WFEA that was inconsistent with its first decision in this case and with prior cases that addressed the application employees. great of no-fault attendance policies to disabled Geen contends that LIRC's decision is entitled to weight deference, given the agency's experience and knowledge in application of the WFEA. ¶31 concluded The that court of LIRC's appeals and the "because of" disability entitled to due weight deference. that "because the question court both decision was The court of appeals reasoned presented 15 circuit here involves policy No. 2004AP1550 implications, and because LIRC offers expertise and experience in the interpretation of the WFEA's 'because of disability' language," some deference was owed LIRC's decision. Stoughton Trailers, 295 Wis. 2d 750, ¶21. However, due to the "somewhat different approach" taken addressing somewhat determined that LIRC had similar LIRC's issues, decision "because We agree of" with disability deference. LIRC has the in prior court of entitled to cases appeals due weight that LIRC's due weight Id. court decision not the was rather than great weight deference. ¶32 than of is appeals entitled squarely to addressed in any prior decision the question of whether a termination for exceeding the maximum number of permitted absences under a no-fault attendance policy was a termination because of disability within the meaning of the WFEA when some of the employee's absences were caused by disability and others were not. acquired much experience interpreting Because LIRC has "because of" disability language in the WFEA, see, e.g., Wal-Mart Stores, Inc. v. LIRC, 2000 WI App acquainted 272, 240 with the Wis. 2d 209, 621 N.W.2d policies that underlie 633, the is well disability protections of the WFEA, but has not previously addressed the particular issue presented in this case, we grant LIRC's decision on the termination "because of" disability question due weight deference. if it is reasonable. Accordingly, we will affirm LIRC's decision reasonable, and no other interpretation See RURAL, 239 Wis. 2d 660, ¶24. 2 16 is more No. ¶33 We begin our consideration of the 2004AP1550 "because of" disability issue by briefly setting forth LIRC's analysis. On remand before LIRC, Stoughton argued that LIRC's first decision had concluded that Geen was not terminated because of his disability, contrary to the court of appeals' reading of LIRC's first decision as explained in Geen, 258 Wis. 2d 498. Stoughton also maintained that LIRC's prior decisions in Gordon v. Good Samaritan 1988), Med. and Gee Ctr., v. ERD ASAA Case No. Tech., 8551631 ERD Case (LIRC, No. April 8901783 26, (LIRC, January 15, 1993), established that a termination for exceeding the maximum number of permitted absences under a no-fault attendance policy was not because of disability under the WFEA when only some of the absences were caused by a disability. ¶34 LIRC rejected decision had held disability, noting Stoughton's that that the its argument termination first decision that was was its first because based on of the conclusion that Stoughton had reasonably accommodated Geen, and had expressly reserved judgment on the question of whether Geen's termination was because of his disability. LIRC noted that the because of question of whether Geen was terminated disability was narrower than the ultimate question of whether Geen was discriminated against because of his disability. LIRC further noted that, regardless, it was bound by the court of 17 No. appeals' conclusion in Geen regarding the 2004AP1550 "because of" disability question under the law of the case doctrine.8 ¶35 Gee LIRC concluded that its prior decisions in Gordon and did not compel the result sought by Stoughton because neither squarely addressed the issue presented in this case. LIRC noted that while Gordon and Gee contained discussion of the relationship between no-fault attendance policies and disability discrimination claims under the WFEA, the discussion in both cases was unrelated to the holding, and therefore dicta. LIRC added that, to the extent that these two decisions suggested a different analysis, different view of decided and Gordon "the this current matter Gee a commission than decade did and the more simply takes a commission which ago." Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 at p. 12 (LIRC, September 12, 2003). ¶36 LIRC then concluded that because two of Geen's 6.5 "occurrences" under the Stoughton's no-fault attendance policy were caused by his disability, the termination was because of his disability. LIRC concluded that the "in-part" test (or "mixed-motive" test) for discrimination endorsed by the court of appeals in Hoell, 186 Wis. 2d at 609-11, was applicable in the 8 "The law of the case doctrine is a 'longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.'" State v. Stuart, 2003 WI 73, ¶23, 262 Wis. 2d 620, 664 N.W.2d 82 (citation omitted). Accordingly, the tribunal to which a case is remanded must follow the decisions of the court of appeals or supreme court in that case. Id. 18 No. present case. 2004AP1550 Quoting Hoell, 186 Wis. 2d at 609-10, LIRC set forth the "in-part" test and the remedies available under it as follows: [I]f an employe[e] is terminated solely because of an impermissible motivating factor, the employe[e] normally should be awarded a cease and desist order, reinstatement, back pay, interest, and attorney's fees under the Wisconsin Fair Employment Act. If an employe[e] is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Commission has the discretion to award some or all of the remedies ordinarily awarded. Finally, if an employe[e] is terminated in part because of an impermissible factor and in part the because of other motivating factors, and termination would have taken place in the absence of the impermissible motivating factor, the employe[e] should be awarded only a cease and desist order and attorney's fees. Id. (emphasis in original). ¶37 Here, Stoughton renews its contention that the decision of LIRC that is on review conflicts with LIRC's first decision in this case, as well as its decisions in Gordon and Gee. In essence, Stoughton argues that these prior decisions compel the conclusion that an employer does not terminate an employee because of disability within the meaning of the WFEA if the termination is for violating a no-fault attendance policy when only some of the employee's absences were caused by the employee's disability. ¶38 Stoughton also contends LIRC erred in applying the "in-part" test of discrimination set forth in Hoell, 186 Wis. 2d at 609-11, to this case. It asserts that the "in-part" test 19 No. 2004AP1550 applies only to cases involving discriminatory intent, and that a termination by application of a no-fault attendance policy is by definition non-discriminatory. Stoughton maintains that the proper test of discrimination in this case is the "determining factor" test, an alternate methodology for cases involving a mixture test, of legitimate the analysis disability was therefore not and illegitimate focuses merely a because of on reasons. whether "factor" in disability, the the or Under this complainant's termination whether it and was "determining factor" and therefore because of disability. a See Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 172-73, 376 N.W.2d 372 (Ct. App. 1985). ¶39 LIRC contends that it properly concluded that Geen was terminated because of disability where Stoughton counted two disability-related absences as "occurrences" under its no-fault attendance policy. LIRC acknowledges that there may be circumstances in which the number of absences under a no-fault attendance policy may be so insignificant that the termination may not be because of disability. such a case, "occurrences" disability. however, under LIRC It argues that this is not because nearly one-third Stoughton's policy were and Geen both contend that of caused LIRC Geen's by his correctly applied the "in-part" test of discrimination in Hoell to the present case. ¶40 As noted, due weight deference requires that we affirm an agency's determination when no other interpretation is more reasonable. Our interpretation 20 set forth below is more No. 2004AP1550 reasonable, but because it comports with LIRC's determination, we affirm. We conclude that our interpretation is more reasonable because it is appropriate to the unique facts of this case and disposes of the case on more narrow grounds, and we further conclude reasonable. that Stoughton's position is not more See Barland v. Eau Claire County, 216 Wis. 2d 560, 566 n.2, 575 N.W.2d 671 (1998) ("[W]e typically decide cases on the narrowest possible grounds."). ¶41 The relevant events relating to Geen's termination are as follows: Geen was absent from work on Friday, January 24, Monday, January 27, and Tuesday, January 28. When Geen returned to work on Wednesday, January 29, Droessler, Stoughton's human resources administrator, informed Geen that he would need a release from his doctor to return to work. She also provided Geen he with the form letter indicating that would need to submit a completed FMLA form to ensure that his absences were not counted as an "occurrence." On January 30, Geen provided Droessler with a doctor's note indicating that Geen was being evaluated for migraines. The next day, January 31, Geen provided Droessler another doctor's note clearing him to return to work, and indicating that his absences on January 27 and 28 were due to migraine headaches. ¶42 That same day, Droessler assessed Geen an "occurrence" under Stoughton's attendance policy for not providing a medical excuse for his January 24 absence, bringing Geen's total "occurrences" to 6.5, and terminated Geen for exceeding the six allowed "occurrences" under the 21 no-fault attendance policy. No. Droessler informed termination three with working Geen that Stoughton's days, and he could Attendance that Geen medical documentation to the Board. seek review Review could 2004AP1550 of Board present the within additional Geen informed Droessler that he would be unable to obtain additional documentation from his doctor for at least one week because a follow-up exam had been scheduled in one week to evaluate the progress of his treatment for migraines. ¶43 Based on these facts, we must conclude that Stoughton violated its own no-fault attendance policy in terminating Geen. Stoughton's policy allowed its employees 15 days from the date of receipt of the form letter to submit FMLA documentation to ensure that a medically-related absence would not be counted as an "occurrence" under its no-fault attendance policy. However, Stoughton gave Geen only two days from the date it provided Geen with the form letter to submit the FMLA form to ensure that the absence was not counted as an "occurrence" before terminating 22 No. him.9 2004AP1550 Under Stoughton's policy, Stoughton should have provided Geen until February 13 to submit FMLA documentation to avoid having his final absence count as an "occurrence" under the nofault attendance Stoughton policy. terminated "occurrences" under Geen By not when Stoughton's waiting he had attendance the full accrued policy, 15 days, only 5.5 and the termination was therefore invalid under the policy.10 9 We contrast Stoughton's treatment of the January 24 absence with its treatment of Geen's extended absence from December 1996 to early January 1997. After the extended absence, Stoughton provided Geen the required time to submit the completed FMLA form to avoid his absence being counted as an "occurrence," and Droessler personally encouraged Geen to submit the form. Geen failed to submit the FMLA form and the absence was counted as an "occurrence," bringing his total "occurrences" to 5.5. We note that Geen has not disputed the counting of this absence as an "occurrence," although it was undisputedly caused by his disability. At oral argument, counsel for LIRC plausibly suggested that Geen's decision not to challenge this earlier assessment of an "occurrence" may be related to the fact that Stoughton gave Geen ample time to submit the FMLA form, unlike in the case of the final absence. 10 The dissent faults the court for making factual findings that were not made by the agency. The dissent is mistaken. Our decision differs from LIRC's because LIRC chose not to decide the case on the narrow grounds presented. Nevertheless, the facts on which the court relies were found by LIRC and the hearing examiner. The hearing examiner found that Droessler "chose to terminate Mr. Geen's employment only two days into the 15-day period for submission of the family/medical leave documentation." Geen v. Stoughton Trailers, ERD No. 199700618 at p. 4 (ERD, September 29, 1999). LIRC found that Stoughton had a 15-day period for employees to submit documentation to avoid being assessed an "occurrence," that Geen received a "standard letter" on January 29, 1997, informing him he had 15 days from the receipt of the letter to submit FMLA documentation to avoid being assessed an occurrence under Stoughton's policy, and that Geen was terminated on January 31, 1997. Geen v. Stoughton Trailers, ERD No. 199700618 at pp. 4-6 (LIRC, September 12, 2003). 23 No. ¶44 2004AP1550 Because Stoughton did not follow the requirements of its no-fault attendance policy in terminating Geen, we conclude it may not claim the protection that may be available to it under the policy. "occurrences" Geen had not accrued the requisite number of necessary for termination. Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably based on the unique circumstances surrounding the termination of Geen than on LIRC's analysis of the relationship between Stoughton's no-fault attendance policy and the "because of" element of a disability discrimination claim under the WFEA. However, the dissent does not accept LIRC's finding that the date of Geen's termination was January 31, 1997. LIRC found that on January 31, 1997, "Droessler told Geen that he was being discharged because his medical documentation did not excuse him for Friday, January 24, 1997." Geen, ERD No. 199700618 at p. 6 (LIRC, September 12, 2003). Later, LIRC refers to the moment on January 31, 1997, that Droessler informed Geen he was being terminated as "the time [Droessler] discharged Geen." Id. Despite LIRC's explicit finding that Geen was terminated on January 31, 1997, the dissent faults the majority for "treat[ing] January 31 as the official discharge date" and asserts, without support, that "Stoughton's discharge of Geen became final on February 21, 1997," the date the Attendance Review Board rejected Geen's appeal of his termination, "more than 15 days after Stoughton advised Geen to submit medical documentation." Dissent, ¶96. The dissent suggests that this court "implies, without providing any justification, that Stoughton did not comply with the FMLA." Id. As we have taken pains to note, the FMLA itself is not at issue in this case. See supra, ¶11 n.4 and infra, ¶58 n.12. The FMLA's 15-day grace period to submit documentation is relevant to this case only to the extent that it was incorporated into Stoughton's no-fault attendance policy. 24 No. ¶45 2004AP1550 We note that LIRC's findings of fact indicate that Stoughton knew Geen was receiving medical treatment for migraine headaches when it terminated him. that Geen had recently been LIRC's findings also show absent from work because of migraines, and that Geen had been absent for several weeks from December 1996 to January 1997 with migraines. Additionally, LIRC's findings show that Stoughton provided Geen only three days to obtain a medical excuse for his final absence, when Geen indicated his doctor would not be able to provide an excuse until the following week. ¶46 Based conclusion on that these Stoughton facts, we terminated conclude Geen that "because LIRC's of" his disability was reasonable. ¶47 Because we conclude that Stoughton violated its no- fault attendance policy in terminating Geen and therefore is not entitled to whatever protection the policy may provide, and that Geen had not accrued the requisite number of "occurrences" necessary for termination under that policy, we need not address whether absences a termination allowed under for a exceeding no-fault the maximum attendance number policy is of a termination because of disability when some of the absences were caused by a disability and others were not. ¶48 Stoughton argues that the application of the "in-part" test is inappropriate where an employer has a no-fault policy that is uniformly applied. Because Stoughton did not terminate Geen by proper application of its no-fault attendance policy, its argument for precluding the application of the "in-part" 25 No. test must fail. 2004AP1550 We therefore determine that LIRC's application of the "in-part" test is reasonable under the facts of this case. ¶49 In sum, we conclude LIRC reasonably determined that Stoughton terminated Geen because of his disability. LIRC's findings, we conclude Stoughton's Based on termination of Geen violated its own no-fault attendance policy because Geen was not provided 15 days to submit documentation to avoid being assessed an "occurrence" under the policy. accrued the requisite termination. number of As a result, Geen had not "occurrences" necessary for Accordingly, we conclude that Stoughton is not entitled to whatever protection its no-fault policy may provide. We conclude termination that the circumstances demonstrate that LIRC's surrounding conclusion that Geen's Stoughton was terminated because of his disability was reasonable.11 B ¶50 Having affirmed LIRC's conclusion that Stoughton terminated Geen because of his disability, we turn to the issue of reasonable accommodation. Because Stoughton does not assert 11 Stoughton and amicus Wisconsin Manufacturers and Commerce argued that an interpretation of the WFEA that determined that a termination for violating a no-fault attendance policy was because of disability when only some of an employee's absences were caused by disability would threaten the very existence of no-fault attendance policies. We express no opinion on this position of Stoughton and amicus. We merely reiterate that this opinion does not address the question of whether a termination is because of disability when an employee is terminated for violating a no-fault attendance policy when some of the employee's absences are disability-related and others are not. 26 No. 2004AP1550 that accommodation of Geen's disability would pose a hardship on it, the only issue remaining for review is whether Stoughton reasonably accommodated Geen's disability. 1 ¶51 We consider first the proper standard of review to apply to LIRC's interpretation and application of the WFEA's reasonable accommodation requirement. Stoughton contends that our de review of this issue should be novo because LIRC's decision regarding reasonable accommodation is contrary to its first decision in this case, and to its long-standing rule that employees do not have a right to the accommodation of their choosing. We conclude that LIRC's treatment of the reasonable accommodation issue is entitled to great weight deference. ¶52 This court addressed the standard of review generally applicable to reasonable accommodation determinations in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, and Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343. In Crystal Lake, this court, relying in part on the court of appeals' decision in Target Stores v. LIRC, 217 Wis. 2d 1, 13-14, 576 N.W.2d 545 (Ct. App. 1998), concluded that LIRC's interpretation and application of reasonable accommodation was entitled to great weight deference. Crystal Lake, 264 Wis. 2d 200, ¶¶29-30. The Crystal Lake court reasoned that great weight deference was appropriate because of the expertise opportunities LIRC to had developed address accommodation under the WFEA. th[e] Id. 27 after issue" having of "had many reasonable No. ¶53 2004AP1550 In the following term, this court applied great weight deference in another reasonable accommodation decision of LIRC, stating "[o]ur decision in Crystal Lake makes it clear that great weight deference is the appropriate standard of review for LIRC decisions the WFEA." Crystal regarding reasonable accommodation . . . under Hutchinson, 273 Wis. 2d 394, ¶24 n.9. Lake and Hutchinson, we conclude Following LIRC's reasonable accommodation determination in this case is entitled to great weight deference. and Hutchinson, accommodation To the rationale explained in Crystal Lake we add only necessarily that depends the upon reasonableness the facts of of a an given case, and is the sort of determination for which LIRC, by virtue of its experience in applying the relevant legal principles to a range of different sets of facts, has developed expertise meriting great weight deference. ¶54 Stoughton cites no published case in which a Wisconsin court has applied de novo review to a reasonable accommodation decision of LIRC. Moreover, we disagree with Stoughton's arguments for applying de novo review in this case. Regarding the fact that LIRC reached a different conclusion here than in its first decision, influenced remand. by the we court note of that LIRC's appeals' second decision decision was and order of More importantly, and unlike LIRC's treatment of the "because of" question, LIRC applied the same legal standard for reasonable accommodation that it has applied in prior cases. Finally, for reasons discussed 28 later, we disagree with No. 2004AP1550 Stoughton's argument that LIRC's decision violates the rule that an employee has no right to pick his or her own accommodation. ¶55 We therefore conclude that great weight deference is the proper standard of review here. uphold LIRC's interpretation of Accordingly, "[w]e will [the] statute, if it is reasonable and compatible with the plain meaning of the statute even if another interpretation may be more reasonable." Hutchinson, 273 Wis. 2d 394, ¶24. 2 ¶56 In addressing accommodation, this the court has requirement recognized of "the reasonable important role that management prerogatives play in the success of a business." Hutchinson, 273 Wis. 2d 394, ¶29. As this court has explained, "a business must have the right to set its own employment rules to encourage maximum productivity," but "such rules do not exist in a vacuum, [and] must bend to the requirements of the WFEA." Id. To reasonably accommodate an employee with a disability under Wis. Stat. § 111.34(1)(b), an employer need only provide an accommodation though it employee. 'a may that not is be reasonable the statute [that] the problem it specifically applied reasonable the accommodation circumstances, preferred by the However, this court has also described "the WFEA [as] remedial resolve under was this accommodation should be designed principle requirement broadly to address,'" when of interpreted and has interpreting the § 111.34(1(b). Crystal Lake, 264 Wis. 2d 200, ¶46 (citation omitted). 29 to See No. 2004AP1550 ¶57 LIRC concluded on two separate bases that Stoughton failed to reasonably accommodate Geen's disability. First, LIRC concluded that Stoughton refused to reasonably accommodate Geen by failing to provide Geen with the 15 days required under its attendance policy to submit a completed FMLA form to excuse his final disability-related absence. Second, LIRC concluded that Stoughton refused to reasonably accommodate Geen by failing to extend to tolerating him his "clemency and forbearance" disability-related intervention that had already absences begun was by while allowed temporarily the to medical take its course and eventually resolve the problem of his absences. We examine LIRC's analysis of both these grounds in turn. ¶58 LIRC's analysis accommodation question in begins the by addressing terms set forth the in reasonable the remand order of the court of appeals, "whether the FMLA or regulations enacted thereunder affect Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how." 2d 498, ¶36. In Geen, the court of Geen, 258 Wis. appeals focused on Stoughton's failure to provide Geen with 15 days to submit a completed FMLA form to excuse his January 24 absence, which it concluded "suggests that Stoughton may not have fully complied with the FMLA." Id., ¶25. opinion to in Geen LIRC read the court of appeals' effectively reject all of Stoughton's arguments regarding its failure to provide Geen with 15 days to submit the FMLA form and its duty to reasonably accommodate. See Geen, 258 Wis. 2d 498, ¶¶26-30. Based on the law of the case doctrine, and on LIRC's independent conclusion that the 30 No. 2004AP1550 court of appeals' analysis was more persuasive than Stoughton's, LIRC concluded that Stoughton refused to reasonably accommodate Geen by failing to provide Geen with 15 days to submit the FMLA form.12 ¶59 Stoughton contends that LIRC's decision improperly substitutes Geen's preferred reasonable accommodation for that offered by Stoughton. Stoughton maintains that it reasonably accommodated Geen by permitting him to remove the "occurrences" assessed for his extended absence from December 1996 to early January 1997 and for January 24 by providing him with an FMLA form which he could complete and submit to avoid being assessed an "occurrence." We disagree and conclude that LIRC's determination that Stoughton refused to reasonably accommodate Geen by failing to allow him 12 sufficient time to submit Based upon the court of appeals' analysis of the FMLA in Geen, LIRC also concluded that Stoughton's failure to provide Geen with 15 days to submit the FMLA form was a violation of the FMLA. We do not address here whether this action violated the FMLA. The 15-day requirement of the FMLA is relevant to our analysis only to the extent that it was incorporated into Stoughton's no-fault attendance policy. As such, Stoughton's failure to adhere to this requirement of its policy supports the reasonableness of LIRC's conclusions that Stoughton terminated Geen because of his disability and that Stoughton refused to reasonably accommodate Geen. Regarding the reasonable accommodation analysis, we note that there is nothing magical about a 15-day requirement that makes this time period more reasonable than another. However, we conclude under the facts of this case that LIRC's conclusion that 15 days to submit the documentation was necessary to reasonably accommodate Geen was reasonable. We conclude that the substantive provisions of the FMLA are not relevant to our review of LIRC's decision. 31 No. documentation to avoid being assessed an 2004AP1550 "occurrence" was reasonable. ¶60 December Stoughton attempts to conflate its treatment of Geen's 1996 to January 1997 extended absence with its treatment of his final absence that put him over the number allowed by Stoughton's attendance policy. We note that Geen has not challenged Stoughton's assessment of an "occurrence" for his extended absence from December 1996 to early January 1997. it would appear that Stoughton provided Geen with And ample opportunity to avoid this first "occurrence" by submitting a completed FMLA form, but Geen failed to do so. ¶61 Stoughton treated this first disability-related "occurrence" very differently than the second disability-related "occurrence." Contrary to Stoughton's claims, it did not provide Geen with sufficient time to submit a completed FMLA form to avoid being assessed an "occurrence." Stoughton terminated Geen two days after providing him with its standard letter informing him that he had 15 days to submit the FMLA form. Droessler informed Geen that he had three days to submit adequate documentation to excuse the absence, even though Geen informed her that he would be unable to get such documentation from his doctor for at least a week. we affirm LIRC's determination On these undisputed facts, that Stoughton refused to reasonably accommodate Geen by failing to give him sufficient time to submit documentation "occurrence." 32 to avoid being assessed an No. ¶62 LIRC reasonably also concluded accommodate Geen that by Stoughton failing to 2004AP1550 refused extend to to him "clemency and forbearance" in the form of temporarily tolerating his absences while the medical intervention that was already underway had a chance to resolve the problem of his disabilityrelated absences. LIRC highlighted decision in Target Stores. the court of appeals' There, the employee, Crivello, had sleep apnea, which caused her to doze off at work, a violation of a company "loafing" rule. After several somnolent incidents, and shortly after beginning a new treatment for her sleep apnea, Crivello was terminated. review, the court of Applying a great weight standard of appeals upheld LIRC's conclusion that Target Stores had failed to reasonably accommodate Crivello by not exercising "clemency and forbearance" in immediately discharging Crivello and not allowing sufficient time to permit the medical treatment to address the problem. 217 Wis. 2d at 17-18. Target Stores, The Target Stores court explained: LIRC's interpretation of "reasonable accommodation" to include forbearing from enforcing the loafing rule while Crivello is undergoing treatment is reasonable. Like a leave of absence, forbearance from enforcing the loafing rule is a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility. Whether either [a leave of absence or forbearance from enforcing an employment rule] is a reasonable accommodation in a given case will depend on the facts and circumstances of that case. Id. at 19. The court of appeals rejected Target Stores' position that "an accommodation is reasonable only if it will 33 No. immediately remove the difficulty in performing responsibilities caused by the handicap." ¶63 respects 2004AP1550 job-related Id. at 18. LIRC observed that Target Stores "was similar in many to [Geen's] case." Geen, ERD No. 199700618 (LIRC, September 12, 2003). In this case, Geen's migraine condition was sometimes causing him to miss work. However, as was the case in Target Stores, Geen's problem had only recently been diagnosed, and he was still at a fairly early stage of treating his disorder. As Crivello had been, Geen was still working with physicians to determine effective medications and to adjust them. It was entirely possible, that development of an appropriate treatment regimen would significantly reduce or even eliminate the problem of periodic absences due to migraine attacks. Id. at pp. 18-19. LIRC noted that this court in Crystal Lake accepted LIRC's interpretation that a reasonable accommodation did not necessarily require that an employee be able to perform all job-related duties, only some or most, and that as long as the employee could perform some of the job duties, modification of the duties could be a reasonable accommodation required of the employer. ¶64 See Crystal Lake, 264 Wis. 2d 200, ¶52. Applying great weight deference to the second part of LIRC's reasonable accommodation determination, we conclude that LIRC's determination that Stoughton refused to reasonably accommodate by failing to extend "clemency and forbearance" was also reasonable. ¶65 exercise LIRC reasonably "clemency and concluded that forbearance" an by employer not should immediately terminating an employee where, as here, the employer knows a 34 No. 2004AP1550 medical intervention is already underway that has not had the chance to take effect to potentially resolve the problem of the employee's absences. ¶66 LIRC's conclusion is consistent with Wis. Stat. § 111.34(1)(b), and is in harmony with both the express purpose of the WFEA practicable "to the encourage and employment foster of to all the fullest properly extent qualified individuals" regardless of disability or other protected status, and its directive that its provisions "be liberally construed for the accomplishment of this purpose." Wis. Stat. § 111.31(3). ¶67 As set forth in LIRC's decision, "clemency and forbearance" is not an open-ended requirement mandating that an employer the indefinitely suspend employee.13 Such accommodation within disabled reasonable Rather, its "clemency and attendance a the forbearance" "forbear" by temporarily mandate tolerating would meaning requires an requirements of that employee's for not be the WFEA. an a employer disability- related absences under circumstances similar to those presented 13 In a decision post-dating the decision in this case, LIRC made precisely this point, noting that "an employer is generally not required to indefinitely suspend the application of a reasonable attendance policy to accommodate a disability." Seil v. Dairy Farmers of Am., ERD Case No. 200204104 (LIRC, August 26, 2005). Amicus Wisconsin Manufacturers and Commerce asserts that Seil demonstrates that LIRC's decision in this case is contrary to established precedent. Amicus is incorrect. Seil is not inconsistent with LIRC's holding in this case, which does not require "indefinite" suspension of employer rules, only temporary "forbearance" to allow medical intervention that is already underway to have its intended effect. 35 No. in this case. medical Target It requires "a temporary accommodation to permit treatment difficulty in Stores, 2004AP1550 which, if performing 217 Wis. successful, the 2d will remove the job-related at responsibility." 19. where Here, Stoughton immediately discharged Geen, LIRC's determination that Stoughton did not exercise "clemency and forbearance" is reasonable. C ¶68 LIRC. Finally, Stoughton challenges the remedy ordered by Stoughton contends that if the "in-part" test set forth in Hoell applies, as we concluded it does under the unique facts of this case, supra, ¶48, the remedy ordered by LIRC, reinstatement and back pay, was not authorized by Hoell. disagree, and conclude discretion in determining that LIRC the properly award based exercised upon the We its correct interpretation of the WFEA and the "in-part" test as described in Hoell. ¶69 Under Wis. Stat. § 111.39(4)(c), award reinstatement and back pay. LIRC (or DWD) may In general, LIRC (or DWD) has the discretion to award to a prevailing complainant some or all of the remedies available under subchapter II of Chapter 111. Wis. Stat. § 111.39(4)(c). ¶70 In Hoell, 186 Wis. 2d at 608-11, the court of appeals endorsed LIRC's statement of the remedies specific to a "mixedmotive" case. As noted above, when the court determines in a "mixed-motive" case that the termination would not have occurred in the absence of the impermissible motivating factor, LIRC has the discretion to award some or all of the following remedies: 36 No. 2004AP1550 a cease and desist order, reinstatement, attorney's fees, back pay and interest. Id. at 609-610. Only when LIRC determines that the termination would have occurred even in the absence of the impermissible factor is the remedy limited to a cease and desist order and attorney's fees. ¶71 not have absences. Id. In this case, LIRC expressly concluded that Geen would been terminated but for his disability-related LIRC apparently determined that the full scope of remedies was appropriate here. We conclude that LIRC properly exercised its discretion in making this determination based upon a correct application of the legal standard provided in Hoell and the WFEA.14 14 The dissent labels LIRC's award to Geen of back pay on his $9.52/hour position "breathtaking" while failing to mention that the award is offset by Geen's interim earnings. Dissent, ¶106. Under LIRC's order, Geen's award is calculated by subtracting his earnings from other employment since his termination and from any other statutory offsets. The amount payable to Geen (if any) after this calculation is subject to interest at the rate of 12 percent simple. Additionally, the dissent calls it "astonishing" that this court affirms LIRC's award to Geen of the maximum remedies allowed under the WFEA, which it claims are allowed only in "cases of pure invidious discrimination." Dissent, ¶107. This case involves discriminatory intent given Stoughton's refusal to reasonably accommodate Geen's disability, and the full circumstances of Geen's termination, which need not be recounted here. As noted earlier, Wis. Stat. § 111.34(1)(b) provides that it is discrimination based on disability to "[r]efus[e] to reasonably accommodate an employee's or prospective employee's disability," unless the employer can demonstrate that the reasonable accommodation would pose an undue hardship on its business. 37 No. 2004AP1550 III ¶72 In sum, we conclude a more reasonable basis for LIRC's decision is that Stoughton did not follow its own no-fault attendance policy in terminating Geen when it failed to provide him with 15 days, as allowed under the policy, to documentation to avoid being assessed an "occurrence." submit Because Stoughton did not follow its own no-fault attendance policy, it may not claim whatever protection that policy may provide in its termination of Geen. Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably grounded on the circumstances surrounding that termination. Based on these circumstances as set forth earlier in this opinion, we conclude that LIRC's conclusion that Stoughton terminated Geen because of his disability was reasonable. We therefore do not address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the WFEA when some of the absences were caused by disability and others were not. ¶73 We further conclude that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen. ordered remedy was reasonable. By the Court. The Additionally, we conclude that its Accordingly, we affirm. decision of the court of appeals affirmed. ¶74 PATIENCE D. ROGGENSACK, J., did not participate. 38 is No. ¶75 been DAVID T. PROSSER, J. litigated for years, at (dissenting). great expense 2004AP1550.dtp This case has to all parties, because it presents a vital question for Wisconsin employers. The question is whether an employer may apply a facially neutral no-fault attendance policy to terminate an employee, without risk of employment discrimination liability, when some of the employee's absences are caused by disability but most are not. More specifically, does an employer discriminate "because of" disability within the Wisconsin Fair Employment Act when the employer terminates an employee under these circumstances? an employer refuse to reasonably accommodate an Does employee's disability within the meaning of Wis. Stat. § 111.34(1) when the employer promises to disregard disability related absences if an employee submits appropriate family/medical leave certification forms but the employee fails to do so? ¶76 The majority avoids answering these important questions directly and thus abdicates its role as the state's ultimate policy making court. ¶77 To rule in favor But it does pick a winner. of Douglas Geen (Geen), however, without answering any tough questions, the majority is forced to make a disputed factual determination that Stoughton Trailers (Stoughton) violated its own no-fault attendance policy and then to infuse discriminatory intent decision to terminate Geen. into Stoughton's unremarkable The result of all this is to permit an employee to miss work, claim that a key absence was based on disability, and escape any consequence even though he has never 1 No. 2004AP1550.dtp produced a single piece of medical documentation supporting the reason for the critical absence. ¶78 classic Because the court's handling of this decision is a example of adding insult to injury, I respectfully dissent. I ¶79 This case involves a claim under the Wisconsin Fair Employment Act (WFEA). terminating an The WFEA employee prohibits "because Wis. Stat. §§ 111.321 and 111.322(1). "because of" disability includes an employer of" from "disability." Employment discrimination refusing to "reasonably accommodate" an employee's disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise, or business. Wis. Stat. § 111.34(1)(b). ¶80 As the Wisconsin Manufacturers and Commerce (WMC) points out in its amicus brief, the present case raises WFEA issues in a context not previously addressed by this court absenteeism. the WMC notes, "Employee absenteeism directly affects economic viability employers. . . . and competitiveness of Wisconsin According to the 2005 CCH Unscheduled Absence Survey . . . , the average yearly cost of absenteeism in the United States in 2005 was $660 per employee in paid, unproductive time, which amounted to a financial cost of over $1 million per year for some Unscheduled Absence Survey. larger employers." See 2005 CCH In addition, WMC explained that many Wisconsin employers utilize no-fault attendance policies, 2 No. citing a survey that reported that the in 2004AP1550.dtp production, maintenance, and service areas, 60 percent of employers with more than 500 unionized employees, and 46.8 percent of employers with more than 500 non-unionized employees, utilized no-fault attendance policies. See 2005/2006 Wisconsin & Northern Illinois Policies & Benefits Survey. ¶81 This case presents an opportunity to resolve several legal questions regarding absenteeism and employers' ability to use no-fault attendance policies under the WFEA. employers expect and need guidance on these questions. Wisconsin Instead, the majority leaves the questions for another day. ¶82 majority By does leaving not these disturb questions the for decisions another of the day, the Labor and Industry Review Commission (LIRC) and the court of appeals. It does not reverse their decisions or withdraw language from them. It simply moves on. By deciding this case on a narrower ground, the majority has insidiously retained LIRC's decision and the court of appeals' decision as precedent for those future cases that must be decided on grounds broader than the artificially narrow ground used in this case. the court precedent. of appeals See Cook will have v. Cook, When a future case arrives, no choice 208 but to apply its Wis. 2d 166, 190, 560 N.W.2d 246 (1997) (stating that "the court of appeals may not 3 No. overrule, modify or withdraw language from 2004AP1550.dtp a previously established decision of the court of appeals").1 ¶83 Thus, employers facially neutral absences alike Ironically, no-fault regardless treating employers from treatment of should all liability employees be wary attendance of the leads to policies for alike to does the a applying reason employees under of WFEA. finding treat the all absence. not protect Rather, of their equal discriminatory intent by employers in adverse employment decisions. ¶84 With each new case, Wisconsin seems determined to vindicate the commentator who wrote: For years, the employment law purportedly aimed at requiring employers to treat workers neutrally and impartially on their merits, all alike; even affirmative action was shaped in accord with this sort of officially declared goal. But now discrimination is quietly being redefined as the failure to treat each employee differently. Nondiscrimination really requires the most subtle and pervasive discrimination, or so the theory goes; treat all employees alike, and you've broken the law. Walter Olson, The Excuse Factory 118 (1997). II ¶85 invoking The majority the principle defends that its this decision-making court cases on the narrowest possible grounds." "typically process by decide[s] See majority op., ¶40 (quoting Barland v. Eau Claire County, 216 Wis. 2d 560, 566 n.2, 1 The court of appeals' decision and LIRC's second decision are cited in Rose Ann Wasserman, Wisconsin Employment Law §§ 14.58, 14.63 (2004 & Supp. 2007); Rose Ann Wasserman, A Guide to Wisconsin Employment Discrimination Law § 3.31 (Supp. 2007); 30 Mental & Physical Disability Law Reporter 678, 800 (Sept./Oct. 2006). 4 No. 575 N.W.2d 671 (1998)). 2004AP1550.dtp However, the majority then makes its own factual determinations to craft a narrower ground upon which to decide the case. The majority finds that Stoughton violated its no-fault attendance policy when it failed to provide Geen with 15 days to submit medical documentation before it assessed an occurrence against him. Majority op., ¶5. Then it finds that, because Stoughton violated its no-fault attendance policy, it intentionally discriminated against Geen when it terminated him. See majority op., ¶49. ¶86 This court is not a fact-finding or error correcting court, see Cook, 208 Wis. 2d at 188-89; Wurtz v. Fleischman, 97 Wis. 2d 100, 107 n.3, 293 N.W.2d 155 (1980); nevertheless, in this case, the majority determines facts sua sponte. Because this case now turns on specific facts, I am compelled to comment on them. III ¶87 LIRC made the following findings of fact in its second decision in this case. Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 (LIRC, Sept. 12, 2003). As of Geen's return to work on January 8, 1997, Geen had accumulated a balance of 5.5 occurrences. Four-and-a-half of those occurrences were not disability related; the other occurrence was disability related. Geen was assessed one occurrence for a disability-related absence (migraines) from December 12, 1996, to January 7, 1997, because he never returned the Department of Labor certification form required to establish that his absence could qualify for FMLA leave. Stoughton, however, did qualify Geen's absence as a 5 No. 2004AP1550.dtp medical leave and therefore assessed him only one occurrence for the entire period. ¶88 On Thursday, January 23, 1997, Geen took an excused vacation day. vacation On Friday, January 24, 1997, the day after his day, Geen called Stoughton before the start of his shift to report that he could not work because he had a migraine headache. Geen also called Stoughton on Monday, January 27, 1997, to report that he could not work because of headaches. On the following day, January 28, 2007, Geen called Stoughton to report that he was seeing a physician that day. to work on January 29, 1997, and met with (Droessler) in the human resources office. Geen returned Tammy Droessler She handed Geen a standard letter emphasizing the need to provide Stoughton with medical documentation within 15 days of the letter. The next day, January 30, 1997, Geen saw another physician who gave Geen a note stating that Geen was being evaluated for migraines. Geen gave the note to Droessler on the same day, but Droessler told Geen that he needed a physician's note stating that he could return to work without restrictions. Geen obtained a note from his physician the following day, indicating that he was released for work without restrictions unable to work on January 27 and 28. and that he had been The note did not indicate that he had been unable to work on January 24, 1997. After Geen gave Droessler this note on January 31, 1997, Droessler told Geen that he was being discharged because his medical documentation did not excuse him for Friday, January 24, 1997. 6 No. 2004AP1550.dtp This unexcused absence caused Geen to accrue an occurrence for that date, putting him at 6.5 occurrences. ¶89 At the time he was discharged, Geen stated that his doctor needed additional time to evaluate him before he could bring in more medical documentation. his option (ARB). to appeal to Droessler told Geen about Stoughton's Attendance Review Board She told Geen that he had three days from that date (January 31) to write a letter to the company's ARB in order to try to reverse the assessment of the occurrence. She told him he could submit medical documentation to the ARB. ¶90 On Wednesday, February 5, 1997, the ARB received Geen's appeal in which he stated that he had been having trouble with migraine headaches, was on medicine for depression, had been seen physician by several evaluate doctors, his and headaches. was having Geen did not his primary submit any medical documentation to the ARB with his letter of appeal. On February 7, 1997, Geen had a follow up exam with his primary physician. Geen did not submit any documentation to the ARB about his February 7 visit with his primary physician, nor did he ask his primary physician at that time to complete the form necessary leave. to establish that his absences qualified for FMLA Geen did not submit any such information to the ARB or anyone else at Stoughton, at any time thereafter. ¶91 Droessler On February informed documentation), the 21, Geen ARB 1997 of the rejected (more than need Geen's to 15 days submit appeal. after medical The ARB rejected Geen's appeal because Stoughton had mistakenly believed 7 No. 2004AP1550.dtp that Geen had been absent without notice or excuse on January 23, 1997, the day that Geen took for vacation. ¶92 In his findings of fact, the Administrative Law Judge quoted from the ARB's memo to Geen, "The Attendance Review Board reviewed your inquiry regarding the occurrence you received for your absences beginning on January 23, 1997. 1997, you didn't call in excusing you on that day. or bring in On January 23, medical documentation Your absence on Thursday puts you at 6[.5] occurrences." IV ¶93 Based on these facts, the majority finds that Stoughton violated its no-fault attendance policy by not giving Geen 15 days to submit medical documentation before it assessed an occurrence against him. From that finding, the majority leaps to the determination although not explicitly stating so that, because Stoughton violated its no-fault attendance policy, Stoughton intentionally terminated him. See discriminated majority op., against ¶48 Geen (stating, when it "Because Stoughton did not terminate Geen by proper application of its no-fault attendance policy, its argument for application of the in-part test must fail.").2 precluding the Both of these determinations are without merit. ¶94 First, LIRC never found and the facts do not show that Stoughton violated its no-fault attendance policy. Droessler's note to Geen indicated that he had 15 days to submit medical 2 Stoughton argued that the in-part test did not apply in this case because the in-part test requires a finding of discriminatory intent. 8 No. 2004AP1550.dtp documentation in order to continue on medical leave. When Geen submitted such medical documentation on January 31 justifying his absences on January 27 and 28 he failed to justify his absence on January 24. required to disability headaches believe that related. are not From that point on, Stoughton was not Geen's Unlike visibly absence some evident. on January disabilities, In 24 was migraine addition, migraine headaches are not always permanent they come and go. Without medical documentation justifying his absence on January 24 (the day after a vacation day), Stoughton could have believed that it was assessing an occurrence against Geen for a non-disability related unexcused absence. non-disability related When an employee is absent for a reason, Stoughton's policy does not require waiting 15 days before it assesses an occurrence against an employee. of assessing Perhaps Stoughton was simply following its policy one occurrence for a non-disability related, unexcused absence.3 3 In its findings of fact, LIRC trivializes Geen's failure to turn in medical documentation justifying his absence on January 24. Instead of acknowledging that Geen's failure to turn in medical documentation for January 24 justified the assessment of an occurrence under Stoughton's no-fault attendance policy, LIRC simply surmises that, even if Geen had turned in medical documentation for January 24, Stoughton would still have assessed an occurrence against Geen for the period of January 24, 27, and 28. That finding is purely speculative. If Geen had turned in proper medical documentation for January 24 justifying his absence as disability related, perhaps Stoughton would have continued to wait for Geen to submit the FMLA form and perhaps Stoughton would have considered combining this later period of absence with his previous period of absence from December 1996 to early January 1997. 9 No. ¶95 he had 2004AP1550.dtp Second, although Droessler's note informed Geen that 15 days to submit medical documentation, it did not pinpoint when Stoughton ultimately assesses occurrences against employees. Droessler testified that on many occasions Stoughton would assess an occurrence against an employee, but once the employee turned in the proper medical form, Stoughton would remove the occurrence from the employee's record. ¶96 Third, the majority treats January 31 as the official discharge date without acknowledging that Geen's discharge on January 31, 1997, was reversible upon Geen's submittal of the proper FMLA form. Stoughton's discharge of Geen became final on February 21, 1997, more than 15 days after Stoughton advised Geen to submit medical documentation. The majority does not acknowledge that, if Geen had turned in the FMLA form during his appeal to the ARB, both the FMLA and Stoughton's attendance policy would have required Stoughton to reverse the occurrence against Geen. on January 31, By refusing to acknowledge that Geen's discharge 1997, was not final but was contingent upon Geen's submittal of FMLA documentation, the majority implies, without providing any justification, that Stoughton did not comply with the FMLA. ¶97 More disturbing determination that Stoughton than the violated majority's its no-fault factual attendance policy is the majority's determination that, because Stoughton violated its no-fault attendance policy, it discriminated against Geen when it terminated him. op., ¶49. Once again, the 10 majority makes intentionally See majority a factual No. determination this time in direct contradiction 2004AP1550.dtp of some of LIRC's previous findings. ¶98 this In case its did first not decision, LIRC "involve[] explicitly bad intent stated and that invidious discrimination because of hostility towards [Geen] because of his disability." 199700618 Geen v. Stoughton Trailers, Inc., ERD Case No. (LIRC, Administrative Law consistent Id. Aug. 31, Judge added that LIRC not any "did with [Geen's] LIRC 2000). theory it did make of noted the of fact findings invidious "not that believe discrimination." that there is substantial evidence supporting a conclusion that Stoughton was motivated by bias against Geen because of his disability." ¶99 Id. Notably, there has never been a factual finding of discriminatory intent majority said so. on the part of Stoughton until the Although LIRC eventually reversed its prior decision, it never commented on or invalidated its conclusion that Stoughton lacked discriminatory intent. On appeal, Geen did not argue that Stoughton had discriminatory intent. Rather, Geen argued, and the court of appeals found, that the Hoell4 inpart (mixed motive) discriminatory intent. test did not require a finding of See Stoughton Trailers, Inc. v. LIRC, 2006 WI App 157, ¶33, 295 Wis. 2d 750, 721 N.W.2d 102. 4 Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App. 1994). 11 No. 2004AP1550.dtp ¶100 This court was supposed to clarify whether the in-part test requires discriminatory intent5 and to determine whether the in-part test would be appropriate in cases where an employer utilizes its no-fault attendance policy to terminate an employee when some of the employee's absences are disability related and others are not. The majority chooses not to address this issue, thus leaving as precedent the court of appeals' decision that discriminatory intent is not required under the in-part test and that the in-part test is appropriate to apply in cases involving termination under a no-fault attendance policy. ¶101 By avoiding this issue and simply infusing discriminatory intent into Stoughton's termination decision, the majority is able to avoid Geen's argument that this case is really a disparate impact case.6 At oral argument, while continuing with his position that discriminatory intent is not required under the in-part test, Geen argued that this case was 5 See State Dep't of Employment Relations v. WERC, 122 Wis. 2d 132, 142, 361 N.W.2d 660 (1985) (stating, "A violation of SERLA is not established by merely proving the presence of protected concerted activity. The employee must show that the employer was motivated, at least in part, by anti-union hostility."); Hoell, 186 Wis. 2d at 614 (stating, "The question of an employer's motivation presents a question of ultimate fact."); Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 597, 476 N.W.2d 707 (Ct. App. 1991) (stating that the in-part test does not apply to disparate impact claims, where a finding of discriminatory intent is not required). 6 "Wisconsin law recognizes two theories of employment discrimination the disparate impact theory and the disparate treatment theory." Racine Unified Sch. Dist., 164 Wis. 2d at 594. 12 No. a disparate impact case.7 impact theory, 2004AP1550.dtp Geen is correct that under a disparate discriminatory intent is not required. See Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707 (Ct. App. 1991). However, the in-part test does not apply to disparate impact claims. Id. at 597. Furthermore, although a plaintiff need not prove discriminatory intent under a disparate impact claim, the plaintiff must provide "statistics showing, or allowing a reliable deduction," disparate impact on a protected group. of an adverse See Racine Unified Sch. Dist., 164 Wis. 2d at 598; Kaczmarek v. City of Stevens Point, ERD Case No. 200200370 (LIRC, Aug. 12. 2003). Geen did not provide such statistics; therefore, he had the burden of proving discriminatory intent. Up until the majority said so, Geen had not met this burden. ¶102 The majority is in no position to make this factual determination, finding that especially Stoughton when lacked reasonable inferences discriminatory intent. favor a First, LIRC found no bad intent or invidious discrimination on the part of Stoughton. Second, Stoughton terminated Geen without ever being one provided piece of Geen's absence on January 24. was terminating Geen because medical documentation justifying Stoughton could have thought it of 7 an unexcused, non-disability Geen's argument is insightful because the facts of this case do more logically apply to a disparate impact theory. "The disparate impact theory is invoked to attack facially neutral policies which, although applied evenly, impact more heavily on a protected group." Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 595, 476 N.W.2d 707 (Ct. App. 1991). A no-fault attendance policy is a facially neutral policy. 13 No. related absence. Third, the ARB rejected 2004AP1550.dtp Geen's appeal not because of any alleged disability related absence but because of its mistaken belief that Geen had taken an unexcused absence, rather than an excused vacation day, on January 23. support a reasonable inference that These facts Stoughton did not intentionally discriminate against Geen when it terminated him. V ¶103 After making these factual determinations and holding that Stoughton majority terminated determines accommodate that Geen. conclusions. Geen The because Stoughton majority of disability, did reaches not two the reasonably contradictory First, the majority concludes that Stoughton did not reasonably accommodate Geen because it failed to give him sufficient time to submit documentation to avoid being assessed an occurrence. however, and accommodate Majority concludes Geen forbearance" that because by op., it ¶59. Stoughton failed temporarily requirements for Geen. The to majority did not extend suspending continues, reasonably "clemency its Majority op., ¶64. and attendance Thus, under the majority s second conclusion, even if the majority had found that Stoughton had given Geen 15 days to submit the medical documentation before it terminated him, Stoughton would still have failed therefore to reasonably requires an requirements documentation even if accommodate employer an confirming to employee that related. 14 his Geen. suspend fails to absence The its attendance submit was majority medical disability No. ¶104 The majority s first conclusion that 2004AP1550.dtp Stoughton did not reasonably accommodate Geen because it failed to give him 15 days to submit medical documentation is without merit. Geen had opportunities to turn in the FMLA form while the ARB was considering his appeal.8 Even after Geen visited his primary physician during the appeal to the ARB, Geen neither asked the physician to fill out the FMLA form nor asked the physician for medical documentation concerning his January 24 absence. To this day, Stoughton has never received any medical documentation justifying his absence on Friday, January 24 (the day after his vacation day). Stoughton gave Geen ample opportunity to have his occurrence reversed, but Geen did not take advantage of it. Thus, Stoughton should not be penalized for its employee s failure to provide FMLA documentation. ¶105 The majority s second conclusion that Stoughton did not reasonably accommodate Geen because it failed to exercise "clemency and forbearance" is also without merit. The majority s conclusion conflicts with the settled principle that 8 The majority mischaracterizes LIRC's finding when it states that "Droessler informed Geen that he had three days to submit adequate documentation to excuse the absence." Majority op., ¶61. Rather, LIRC stated that "Droessler told [Geen] that he had three working days from that date (January 31) to write a letter to the company's Attendance Review Board in order to try to reverse the assessment of the occurrence. She told him he could submit medical documentation to the Board." (Emphasis added.) LIRC never found that Droessler told Geen that he had three days to submit medical documentation. In fact, parties disputed whether Droessler told Geen at that time he could turn in the FMLA form within 15 days to remove occurrence and make the "whole thing go[] away." 15 only the that the No. where "an employer eliminates the offers conflict abilities and the preserves the accommodation between affected accommodation an job requirement is effectively employee s and requirements, which [disabled] the employee s 2004AP1550.dtp reasonably which employment satisfied." status, Norton v. the City of Kenosha, ERD Case No. 9052433 (LIRC, May 21, 1993); Owen v. Am. Packaging Co., ERD Case No. 8920686 (LIRC, Aug. 31, 1990). In this case, Stoughton offered an accommodation to eliminate any conflict by giving documentation to avoid attendance policy. clemency and Geen the an opportunity occurrence to under submit the FMLA no-fault In essence, Stoughton would have exercised forbearance by not assessing Geen a disability related occurrence if Geen had only provided it with proper FMLA documentation. should have The majority concludes, however, that Stoughton exercised clemency and forbearance without the employee ever having to provide the employer with any medical documentation justifying his absence. Employers must now take employees at their word regarding disability related absences. That is unreasonable accommodation. VI ¶106 In finding that Stoughton terminated Geen because of disability and failed to reasonably accommodate him, the majority affirms LIRC s conclusion that all of the following remedies are appropriate: a cease and desist reinstatement, attorney's fees, back pay and interest. op., ¶70. order, Majority As a result, Stoughton must pay Geen the sum he would have earned as an employee from the date of his discharge until 16 No. Geen resumes employment employment with offer of a Stoughton substantially with but Stoughton for Geen's equivalent or 2004AP1550.dtp would refusal of position. The resume a valid amount payable to Geen is also increased by interest at the rate of 12 percent simple. years ago. Geen was terminated in early 1997, over 10 At that time, he was making $9.52 an hour. This is a breathtaking penalty. ¶107 The majority upholds LIRC s award after finding discriminatory intent and thus crafting a way to apply Hoell s in-part test. What is astonishing is that the majority awards Geen the maximum remedies allowed under the WFEA for cases of pure invidious discrimination. VII ¶108 Because the majority avoids deciding the real issue presented in this case and does so by crafting a narrower ground upon which to decide the case, I respectfully dissent. ¶109 I am authorized to state that Justice JON P. WILCOX joins this dissent. 17 No. 1 2004AP1550.dtp

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