*1 Petitioner- Lake Cheese Factory, Appellant-Petitioner, v. and Susan Industry
Labor Review Commission Respondents-Respondents. Catlin,
Supreme Court 28, No. argument May 02-0815. Oral 2003. Decided July 106WI (Also 651.) reported in 664 N.W.2d *4 petitioner-appellant-petitioner For there were by Duffy, Robert Scullen, briefs H. Sean M. Quarles and Brady argument by LLP, & Milwaukee, oral and Robert Duffy. H. respondent-respondent, Industry
For the Labor and by argued Commission, the Review cause was David C. attorney general, Rice, assistant with whom on the Peggy Lautenschlager, attorney general. brief was A. respondent-respondent,
For the Catlin, Susan there by Murphy was a brief Monica M. and the Wisconsin Advocacy, argument Milwaukee, Coalition and oral for by Murphy. Monica M. by An amicus curiae brief was filed A. Melissa Cherney Galinat, and Chris Madison, on behalf of the Wisconsin Education Association Council. by
An amicus curiae brief was filed Rebecca L. Taylor Stawski, Ltd., Salawdeh Urban & Milwau- kee; Patrick O. Patterson and Law Patrick O. Office of Patterson, S.C., Point; Fox and Patricia A. Lauten and Group, S.C., The Schroeder Waukesha, on behalf of the Survival Coalition of Wisconsin. by
An amicus curiae brief was filed Francis X. Sullivan, Williams, William C. Bell, Gierhart & Moore, S.C., Madison, on behalf of the Wisconsin Cheese Makers Associations, Inc., and Wisconsin Manufacturers and Inc. Commerce,
An amicus curiae brief was filed Kinne, Paul A. Academy Madison, on behalf of the Wisconsin of Trial Lawyers. *5 This is of CROOKS, J. a review N. PATRICK Appeals, III,1 of District which
a of the Court decision County, of Barron an order of the circuit court affirmed presiding. C. The circuit Honorable James Eaton of affirmed a decision the State Wisconsin court (LIRC), Industry Review Commission which and Labor (ALJ) Judge Law an order of Administrative reversed (Cat- Gary that Susan Olstad. LIRC determined n lin) disability with an individual a within was Employment meaning Act Fair the Wisconsin (1999-2000),2 § (WFEA), Wis. Stat. 111.31-.395 Factory had Lake Cheese discriminated meaning against disability on her within the based refusal of modify found that Lake's the WFEA. LIRC exempt perform- her from duties to Catlin's physical ing physical to make tasks, and the heaviest place, denial constituted the the work modifications it could have accommodation, reasonable which hardship. provided without following presented issues: 2. We are with
(1) interpreted reasonably Stat. whether LIRC 111.34(l)(b)3 111.34(2)(a)4 § § WFEA, when there a reasonable accommodation it found was 1 290, LIRC, App 2002 Factory v. WI Crystal Lake Cheese 2d N.W.2d 258 Wis. 654
2 to the Statutes are All references to the Wisconsin version otherwise noted. 1999-2000 unless 111.34(l)(b) provides: Wisconsin Stat. (1) disability includes, Employment but discrimination because of limited to: is not Ob) employee's prospec- Refusing reasonably accommodate an disability employee's can demonstrate unless the tive pose hardship employer's on the would that the accommodation enterprise program, or business. 111.34(2)(a) provides: Stat. Wisconsin provided employee, Catlin, Lake could have its former *6 (2) hardship; Crystal without whether Lake was denied process by due LIRC's failure to consult the with (3) judge; administrative law whether there was sub- support stantial and credible evidence to the factual findings by upon LIRC, it made which based its decision Crystal there awas reasonable accommodation provided hardship, Catlin, Lake could have without 111.34(l)(b) provisions within the of Wis. Stat. and ' 111.34(2)(a). ¶ appeals. 3. affirm the We decision of the court of Accordingly, Crystal requiring we hold that Lake to modify physical duties of and Catlin make workplace modifications to the was not unreasonable. With accommodations, such reasonable she would have ability adequately, job-related undertake, responsibilities. Crystal Next, 4. we hold that Lake was process prior reversing
denied due LIRC, when holding, ALJ's failed to consult with ALJ. We hold findings hinge that since LIRC's did not on issues of credibility, required witness LIRC was not to confer ALJ, with the there was therefore no violation process rights. of due Lake's Finally,
¶ we hold that there was substantial justify and credible evidence in the record findings. There was substantial evidence to show that 111.322, Notwithstanding employment s. it is not discrimination disability hire, employ, any
because of to refuse to admit or bcense individual, employment, membership or to bar terminate from or any individual, against any licensure or to discriminate individual promotion, compensation terms, privileges inor or conditions employment disability reasonably if the related to the ability adequately job-related respon- individual's undertake the employment, membership sibilities of that individual's or licen- sure. could made accommoda- have reasonable Catlin, and Lake has meet its for failed to tions establishing that such reasonable accommo- burden hardship create on it. dations for would I. FACTUAL BACKGROUND August 1995 Catlin was hired Factory Crystal Lake Cheese to work in its wholesale department department. The wholesale consisted cryo- department positions: head, cutter, four cheese bagging sealing (shrink-wrapping vacer cheese), and labeler. The main duties of the wholesale specified quantities department were to cheese into cut according The then *7 to orders. cheese was and sizes shipping. packaged sealed, labeled, and and boxed for initially a cheese was cutter, hired as but Catlin was four-person promoted department to head of the later department. typical day her
¶ A Catlin started with for concerning weight making the dif- the of calculations cut, orders. to based on the ferent cheeses had be up and Next, she made labels This took about hour. put the into. She on the boxes that orders went them up pull back, make the boxes the boxes from would put cutter Meanwhile, them. and the labels on cutting placing and it on the table. the cheese would be bagged placed table, it was the cheese was on After put bagged, cryovaced. sealed, The and cheese was and pot dipped in a The had to be in basket then a basket. packages off then dried of The of cheese were hot water. priced, weighed scale, and labeled, on a boxed. and in Lake's wholesale 8. All four workers positions department in all were four cross-trained assisting department, capable of and all were within the one another when an fell behind or when the department department was busier than usual. As the required gather head, Catlin was orders and create specifying types an order list the sizes and .of cheese day. that needed to be cut for In addition to other required weigh, duties, administrative Catlin was price label, and box the cheese. She would also boxes packages, assembling place assist boxes, packages pallets, on and move them into the cooler pickup. for Catlin also assisted the other members department help her duties, with their needed, as control the flow of work. In November 1996 Catlin was involved in a
non-work related automobile accident that left her a quadriplegic, though eventually regained partial she required use of both of her arms. She is now to use a During hospitalization wheelchair to move around. her ensuing period, rehabilitation Catlin filed for and disability received full benefits. September
¶ 10. 1997 Catlin decided that she ready Tony was to return work, so she contacted (Curella), president Curella Lake, to inquire resuming about the circumstances of her position department as head. Lake subse- quently (Johnson), management hired David Johnson types consultant of Genex Services, to determine what of accommodations would be needed in order to allow a *8 person perform confined to a wheelchair the duties position required. Catlin's Curella had told Johnson department perform that the head had to be able to all department. of the functions in the wholesale Also, no gave any one from Lake ever Johnson informa- tion Catlin, about other than that she used a wheel- Ultimately, chair. Johnson found that Catlin could not reasonably person have been accommodated, as a with disability perform Catlin's would be unable to all the (i.e., department required of her as the head tasks she perform all unable to all the functions of four was department). specifi- positions in wholesale More difficulty cally, Catlin would Johnson noted that have weight pulling stocking inventory and and because of storage height up to feet of the seven above area — concluded, the floor. Lake therefore based on report Johnson, from that it could make no reason- for able accommodations Catlin. October 1999 Catlin asked meantime, she decision,
to reconsider its and (Annis) Jeffery expert, Annis hired her own Technology and Assistive Assessment Cen- UW-Stout feasibility returning ter, determine the of her to work department assessment, head. At the time of this as department wholesale had been eliminated Catlin's Regardless, job longer initi- no existed. assessment ated Catlin found that could have been changes physical if had been accommodated, certain job workplace, if her had modified made in the been required that she not have been so would longer physical aspects of her that she was no those perform. able to that Catlin Johnson, 12. Like Annis found of the duties of her
would be unable to some climbing, lifting, performance position required example, standing position. lift For she could not in a 40-pound or reach cheese stored on blocks of cheese high Nevertheless, the stated that she shelf. assessment job-related capable performing most of was still modify inability to some of the above duties. Due to the way suggested duties, that an easier the assessment *9 make her more to accommodate Catlin would be to many physical The clerical, and eliminate of the duties. job duties be assessment recommended that Catlin's person only a lead she need do modified so that as packaging, along filling paperwork and final with out receipts, packing Both before invoices, lists. attempted Catlin's accident and at time she work, and her em- return to ployed her mother sister were department part in the wholesale as of the same team that Catlin led. Catlin realized that she would not be 13. When position department
allowed to resume her as the head Crystal Factory, charge at disability Lake Cheese she filed a Equal with the United States
discrimination Employment Opportunity charge Commission, and the Equal Rights was cross-filed with Division Department Development. Wisconsin of Workforce This alleged Crystal occurred in March of 1998. Catlin by terminating employ- Lake violated the WFEA by refusing permit ment, her to return to work disability. filing because of her The federal was subse- quently April 27, dismissed notice sent on II. PROCEDURAL BACKGROUND Judge's A. Administrative Law Decision Equal Rights hearing ¶ 14. An Division was held January hearing, before the ALJ on 2000. At the operations manager, Phillip Robertson, Lake's modifying factory testified some of the in costs accommodate Catlin. Lake asserted that these were In October 2000 Olstad deter- costs unreasonable. against mined that Lake had not discriminated refusing to allow her to return to work following her automobile accident. He found there were *10 Crystal no reasonable accommodations that Lake could imposing hardship. made, have without on it a Conse- quently, Crystal Olstad determined that Lake had not violated the WFEA. Industry
B. Labor and Review Commission's Decision appealed ¶ 15. Catlin the ALJ decision to LIRC. July 2001 LIRC reviewed the case and reversed the ruling. regard- ALJ's LIRC did not consult with the ALJ ing credibility of the witnesses LIRC be- because lieved that its reversal of the examiner's decision was upon any differing not based assessment of witness credibility. Crystal It found that Lake could have made factory reasonable accommodations in the and modifi- cations to Catlin's duties that would have allowed department Catlin to return to work as the head. LIRC day sought found that as of the that Catlin reinstate- physically perform ment she was able to most of the jobs packing department; in the wholesale LIRC, Fair Employment Finding 2000), p. (May Decision, 14, 5, but that she could not some heaviest physical Finding p. specifically, Id., tasks. 15, 4. More Crystal LIRC found that Lake could have altered job exempted Catlin's duties and her from certain longer physically capable that activities she was no performing, doing and that so was well within bounds of reasonable accommodation. LIRC deter- modify job mined that the refusal to Catlin's duties to exempt performing physical her from tasks, heavier constituted a denial of a reasonable accommodation provided Lake could have without hard- Finding ship. p.4. opinion Id., 16, In a memorandum explaining findings, part: its LIRC stated in LIRC has "previously require found that it is reasonable to physical demands of to restructure provided employee, a disabled
in order to accommodate employer." hardship to the without can be achieved Co., ERD Case No. 1997-02574 TG Fields v. Cardinal 2001). (LIRC, 16, Feb. that, in order to found 16. LIRC also physical modifica- duties, Catlin needed some Employment workplace. Deci- LIRC, Fair
tions to the 2000). (May Findings pp. LIRC 17-18, 5, 4-5 sion, physical Lake's refusal to make determined of a reasonable constituted denial modifications also provided have Lake could accommodation Finding p. hardship. Id., Furthermore, without *11 sought return to time Catlin found that at the LIRC an accessible bathroom.5 did not even need work she putting bathroom, in an accessible Thus, the cost employer claimed, not was $47,000 if it was as even lawfully upon denied could be which Catlin a basis Crystal Lake to reinstate ordered reinstatement. LIRC pay provide her, and "make whole" remedies6 to Catlin, attorney's fees and costs. reasonable The Court Decision C. Circuit Crystal August filed for 16, 2001, Lake 17. On February judicial 7, decision, and on review of LIRC's sought reinstate "catheterized" when she first Catlin was using a ment, time of LIRC's review she was but LIRC, Employment Decision, Finding 18, p. 5 bathroom. Fair 2000). 5, (May Crystal pay Catlin the sum she Lake to LIRC ordered sought date she employee from the
would have earned as Crystal employment with until she resumed reinstatement offer, or it was shown that Lake, a valid reinstatement refused not feasible. reinstatement was 2002, the circuit court affirmed LIRC's decision. It reasonably interpreted found that LIRC had WFEA, and that there was substantial and credible evidence support findings. the record to LIRC's Appeals' D. The Court of Decision appealed ¶ 18. to the Wisconsin Appeals, Court of 2002, District III. On October appeals upheld and, court of affirmed thus, decision. Applying great weight
¶ 19. standard of re- appeals view, the court of concluded LIRC's inter- 111.34(l)(b) pretation acceptable of Wis. Stat. was modify when it found that Lake's refusal to exempt physical Catlin's duties to her from the heaviest tasks constituted a denial of reasonable accommoda- appeals tion. The court of concluded LIRC reason- ably interpreted provi- the reasonable accommodation employer may sion of the WFEA to mean that an be required modify job responsibilities some a dis- (but abled who can some most all) job-related functions, unless the can show hardship. that such would modifications cause appeals ¶ 20. The court of found that presented showing Lake had modating *12 no evidence that accom- disability hardship.
Catlin's would create a appeals The court of also did not concluded LIRC deny Crystal rejected process Lake due when it of some findings the ALJ's factual and failed consult with Finally, appeals him. of the court remand declined to Crystal give opportunity the case in order Lake the hardship. show Crystal petitioned review of the
¶ 21. Lake for appeals granted review of court and we of decision February 19, on
III. ISSUES presented noted, are with the follow- 22. As we (1) ing reasonably interpreted issues: whether LIRC 111.34(2)(a) 111.34(l)(b) § § of Wis. Stat. Wis. Stat. a it found that there was reasonable WFEA when Crystal provided its Lake could have accommodation (2) hardship; employee, Catlin, whether former without Crystal process by failure denied due Lake was (3) judge; administrative law to consult with the there was substantial and credible evidence whether upon findings support LIRC, the factual made which a it its there was reasonable accom- based decision that Crystal provided Catlin, have Lake could modation hardship provisions of within the Wis. Stat. without 111.34(2)(a). 111.34(l)(b) OF REVIEW
IV STANDARD
argues
a
novo
that de
standard
Lake
support
appropriate
for LIRC's
of review
decision.
Crystal Lake
that the
standard,
de
contends
novo
accommodation under
issue whether reasonable
duty
WFEA
to create a new for disabled
includes
first-impression
for
is one of
LIRC. Alterna-
argues
tively,
in this
Lake
decision
that LIRC's
previous
its
decisions on other
case is inconsistent with
Kannenberg
Accordingly,
LIRC,
v.
matters.
based on
if an issue is one
maintains
agency,
agency's posi-
first-impression
before the
matter,
decisions on the
tion is inconsistent with other
*13
novo
review. Kannen
de
is the
standard of
appropriate
LIRC,
berg v.
¶ and that agree argue LIRC's determination that Crystal could made have reasonable accommodations would have Catlin working allowed to continue as the head, department weight" is entitled defer- "great ence, and must be affirmed if it is reasonable statute. See to the of the Target contrary clear meaning LIRC, v. Stores 217 1, 13-14, Wis. 2d N.W.2d 576 545 (Ct. 1998). This if App. is true even the court were to conclude that another was more reason- interpretation See id. able. argues Catlin that if LIRC's interpretation
reasonable, the reviewing then court affirm must its decision under the standard review. In great weight argument Catlin maintains support weight credibility of the evidence are matters for agency, and not for the reviewing court, to evaluate. Bucyrus-Erie See Co. v. ILHR Dep't., 90 Wis. 408, 2d 227.57(6). 142 (1979); 280 Stat. N.W.2d Even when more than one can reasonably inference be drawn, is conclusive. See finding agency Vocational & Adult Dist. ILHR Tech. Educ. 13 v. Dep't., (1977). 230, 240, Wis. 2d 251 N.W.2d
7 Hereinafter, respondents will usually be referred to collectively as Catlin. argues agency's if Moreover, *14 any depends by agency, fact found the the
decision on judgment the its own as to court shall not substitute weight any finding fact that of of the of of for evidence 227.57(6). § Additionally, relying agency. the Wis. Stat. 227.57(10),8 argues great § on Stat. Wis. weight experience, technical com- shall be accorded the knowledge petence, agency specialized in- the and of volved. 227.57(6),9 § According Stat. Wis. may by only a court and will be set
decision
be reviewed
court]
agency
[the
"if
finds
aside or remanded
the
any
agency's
depends
finding
on
of fact
that the
action
supported by
evidence in the
is not
substantial
prepon
mean
"Substantial evidence does not
a
record."
Rather,
whether,
the test is
derance of the evidence.
taking
record,
in
into
all
evidence
the
account
the
could
at
same conclusion
'reasonable minds
arrive
the
agency.'"
v.
Serv.
as the
Madison Gas & Elec. Co. Public
(1982)
Comm'n,
133,
109
2d
in a contested case as to the of evidence any disputed finding on of fact. reviewing A28. court must first determine what agency
level of deference to accord an
If the
decision.
agency's
great weight,
determination is entitled to
directly
court will sustain it unless it
contravenes
clearly contrary
legislative
statute,
intent,
or lacks
Harnischfeger Corp. LIRC,
a rational basis.
v.
196 Wis.
(1995).
any
650, 662,
Here,
2d
that LIRC's of reasonable accommoda- given great weight. tion should be Id. The court stated give interpretation vary- "[w]e LIRC's of a statute ing degrees depending obligations of deference on its respect administering experience statute, its with doing so, in and the nature of the determinations." Id. explain why The court then went on to great weight it concluded given interpretation should be to LIRC's of reasonable accommodation:
First, charged adjudicating appeals LIRC is with from hearing complaints examiner's decision on under WFEA, 111.39(5), Stats., § which includes com- 111.322, Stats., plaints handicap under for discrimi- 111.34(1), Second, Stats., in nation. was enacted 1981 in developed experience expertise and LIRC has and Third, by according great interpreting this section. ... determinations, promote deference to these we will greater uniformity consistency than if we did not and intertwined with Fourth, determination is so.
do LIRC, 148 determinations, McMullen v. see factual 1988) (Ct. (what 830, 276, App. 270, 434 N.W.2d 2d on the facts in depends accommodation is reasonable case). Fifth, involves value this determination each obligations employers about the policy judgments prospective em employee, employees when 2d at Kannenberg, 213 Wis. handicap. See ployee, has at 171. 571 N.W.2d omitted). (some Id., citations agree set of review with the standard 30. We interpretations, Target, that LIRC's and hold forth including accommoda- of reasonable its determination weight" given "great defer- case, in this should be tion reject Crystal doing Lake's contention so, we ence.10 impression, or that its one of first the issue was position on the other decisions inconsistent with many opportunities to address had matter. LIRC has under accommodation is of what reasonable this issue great weight review, standard "Under the the WFEA. uphold interpretation if it is of the statute we meaning contrary clear to the reasonable and not interpretation if conclude that another statute, even we Id. at 13-14. is more reasonable." weight the due argues application for The dissent review, as one which it characterizes deference standard of *16 reviewing accept "an alternative court to which allows Dissent, 108. While that is more reasonable." interpretation here, even great weight appropriate deference is we believe standard, approval our weight deference under due statutory sections involved would interpretations than the are "more reasonable" change. interpretations Its by Crystal Lake. offered alternatives V ISSUE ONE—LIRC'S INTERPRETATION OF
REASONABLE ACCOMMODATION WITHOUT ABILITY HARDSHIP AND TO UNDERTAKE JOB RESPONSIBILITIES previously, §
¶ 31. As noted Wis. Stat. 111.34 states:
Disability; exceptions special cases (1) Employment disability discrimination because of includes, but is not limited to:
(b) Refusing reasonably employee's accommodate an disability prospective employee's unless the em- ployer can demonstrate that the accommodation would pose hardship employer's program, enterprise on the or business.
(2)(a) 111.322, Notwithstanding employment s. it is not hire, disability discrimination because of to refuse to individual, employ, any admit or license to bar or employment, membership terminate from or licensure individual, any against any or to indi- discriminate promotion, compensation terms, vidual in inor condi- privileges employment disability tions or if the reasonably ability related to the individual's to ad- equately job-related undertake the responsibilities of employment, membership individual's or licen- sure. statutory language
¶ 32. The
of Wis. Stat.
requires
111.34
that an
must show
disability
reasonably
individual's
"is
related to the
ability
job-
adequately
individual's
undertake the
responsibilities
employ-
related
of that
individual's
111.34(2)(a).
However,
ment . . .."
Stat.
an em-
*17
reasonably
ployer
if it refuses to
violates WFEA
disability
employee's
without demon-
an
accommodate
strating
hardship
accommodation would be
that the
111.34(l)(b).
together,
Taken
on it. Wis. Stat.
(2)(a)
111.34(l)(b)
prove
require
accommodations, the em-
reasonable
that even with
ployee
her
his or
would not be able
responsibilities adequately
that,
where reasonable
employee to do the
enable the
accommodations would
Target,
employer.
job, hardship
placed on the
would be
A. argues interpreta- Crystal that LIRC's Lake under the WFEA is of reasonable accommodation tion de- The does not and erroneous. WFEA unreasonable which or the extent to fine reasonable accommodation may required be for disabled an accommodation employee. Crystal there Moreover, Lake contends that appellate guidance courts from is little regarding Wisconsin's scope un- reasonable accommodation Relying Target,11 id. at 17. on der the WFEA. See argues eliminating Crystal of an the duties employee's position that en- not an accommodation "adequately undertake the disabled ables job-related employment. responsibilities" of her LIRC, that neither Lake maintains any expert, suggests there is such nor Catlin's to do allowed Catlin that would have accommodation job. re- Lake claims that LIRC Instead, purpose held that "the Target, appeals the court of adequately employees to accommodation is to enable reasonable LIRC, Target Stores v. job-related responsibilities." undertake 1998). (Ct. 17, App. 2d 217 Wis. 576 N.W.2d duties quired Catlin from those Lake to excuse *18 creating essentially longer perform, a new could no she Crystal statutory language job. WFEA, of the Under the employee argues able to "ad- must be that an Lake job-related responsibilities equately of the undertake " employment. [the] ... Wis. Stat. individual's 111.34(2)(a). § argues Crystal the
¶ Lake Next, 35. legislature's article, "the" in Stat. definite use only 111.34(2)(a), rea- modification, can be without sonably interpreted functions that to mean all of the Crystal job. up "the," article The use of the make contrary interpretation to the contends, Lake appeals by case, adopted in where this the court employee long could as as court found that employer job-related responsibilities, the "some" employee reasonably obligated accommodate is by eliminating can no those tasks which Factory LIRC, longer v. 2002 Lake Cheese do. App 414, 2d 654 N.W.2d 26, 28-29, 258 Wis. 290, WI court Lake contends analogous and the Wis- federal statutes look to should interpreting reason- Commission in Personnel consin though court, neither the accommodation, even able interpreting in decisions LIRC, is bound those nor (2)(a). 111.34(l)(b) Target, See 217 Wis. Wis. Stat. support Kannenberg, 2d at 387. 18-19; 213 Wis. 2d at points argument, federal out that of its routinely accommoda- held that reasonable have courts employer require to eliminate an not tion does job, employ others a new duties, create perform. employee cannot disabled functions (7th City Mauston, 835, 845-846 311 F.3d v. Peters 2002); Lighting, Cir. 749, Watson v. Lithonia 304 F.3d (7th 2002). Consequently, Crystal Cir. Lake asks us to find that the WFEA's reasonable accommodation provision require does to create a new position employee. for a disabled disagrees argues
¶ 37. Catlin that the court legislation should not read federal into the intent of legislators. Instead, Wisconsin's Catlin maintains that interpreted the WFEA should be accordance with legislature's "our intention rather than with the inten- jurisdictions." LIRC, tion of other McMullen v. 148 Wis. (Ct. 1988). App. 270, 275-76, 2d 434 N.W.2d Wisconsin has determined that while federal and other *19 applying legislation may enlight- states' cases ening similar be they binding upon to the cases, WFEA are not argues Thus, Wisconsin courts. Id. Catlin that while may this court consider how federal courts dealt have question with the of reasonable accommodation under Disability (ADA), the Americans with Act since the guidance similar, is identical, WFEA but not is limited as to the determination of what is reasonable under the support position, argues WFEA. of its Catlin significant statutory language there are differences McMullen, between WFEA and the ADA. See 148 points requires Wis. 2d at 275. Catlin out that the ADA employer only an to make reasonable accommodations disability, "qualified to the of a individual with a disabil- ity" "qualified disability" and a individual with a is "an disability who, individual with a with or without rea- perform sonable accommodation can the essential func- employment position tions of the that such individual 12111(8)12 §§ holds. . .." See 42 U.S.C 12111(8) 42 U.S.C. states: 12112(5)(A).13 requires an contends, WFEA, The Catlin employee's reasonably employer an to accommodate disability" disability, not but an "individual with who can the "essential limited to an individual employment position with or without of the functions" 111.32(8)14 §§ Stat. accommodation. See Wis. 111.34(l)(b). argues ADA that under the Moreover, Catlin
analysis, that Catlin clear that the tasks it is not even longer perform essential were considered no could points position. out that as of her functions responsibility primary department towas head, her inventory process which do sheets —tasks orders and disability" an indi- "qualified means individual with The term who, disability reasonable accom- with or without vidual with a employment modation, functions of the can the essential purposes of desires. For the position individual holds or that such employer's given subchapter, to the consideration shall be this essential, and if an judgment functions of a are as to what advertising description or prepared before a written has description job, shall be interviewing applicants for the job. of the essential functions considered evidence 12112(5)(A), states: 42 U.S.C. (a) section, the term "discriminate" of this As used in subsection making the known accommodations to reasonable includes: qualified individual physical limitations of an otherwise or mental employee, disability applicant unless such with a who is entity the accommodation would can demonstrate that covered hardship operation of such impose of the business an undue on the entity. *20 covered 14 111.32(8) provides: § Wisconsin Stat. disability" individual who: means an with a "Individual (a) impairment which makes achieve- physical or mental Has a work; capacity unusually difficult or limits ment (b) impairment; or an Has a record of such (c) impairment. having perceived such an Is as perform. Furthermore, she could still Catlin asserts law, has offered no case under the says perform ADA, that an individual must able to be positions, they all functions of four different will qualified disability be considered a individual with protections entitled to under the law. argues
¶ 39. Catlin if that even the ADA is con- applying sidered when the WFEA, it makes no differ- requires engage ence since the ADA an process an interactive an with to determine a present accommodation, reasonable and that in the process case, no such was undertaken. appropriate
To determine the reasonable accommoda- may necessary tion it entity be for the covered process initiate informal interactive quali- with the fied disability individual with a in need of the accom- process identify modation. This should precise resulting disability from the potential limitations reasonable accommodations could overcome those limitations. 1630.2(o)(3) Again,
29 C.F.R. 1995.15 no such interac- process place points tive took here. Catlin out inquired Lake never of her as to what accom- argues modations she needed. Catlin that this failure violated the intent WFEA as well. Furthermore, argues determining ADA, that under determining whether a function is essential includes removing fundamentally whether the function would position position alter that if the exists to particular employees function, if there are other avail- able to that function, and the amount of time spent performing the function. Americans With Dis- Regulations EEOC Implement Equal Employment 1630.2(o)(3) (1995). ADA, Provisions 29 C.F.R. *21 Employment p. Equal Handbook, 1-38, U.S. Act abilities Department Opportunity U.S. of Jus- Commission (1992). analysis, contends, it Catlin Even under tice longer no Catlin was the few tasks not clear whether qualified accommodations, as do, even with able marginal position Her functions. functions or essential cryovacer position it the nor was not the cutter was position. argues Catlin's ¶ that all only is Catlin essential, and that were functions required position, all the functions of perform the all that she be able it is also essential but department, employees in the of all the other functions argues primary that their role is. Catlin no matter what nothing comment in the WFEA's Lake's history "suggests legislative construe the an intent to differently duty than accommodation' of 'reasonable given similarly unpersuasive, the ADA" is under disability provisions predate ADA the WFEA's years. ten almost argues summary, attempting inappropriately move this case
Lake is apply protections WFEA, and instead from distinguishes analysis ADA. The ADA under the used marginal term functions, but the essential between meaning particular under has no "essential functions" Target, n.9. 2d at 16-17 217 Wis. the WFEA. complainant must first 42. Under the WFEA disability" "individual with he or she is an show that 111.32(8), meaning and that of Wis. Stat. within the enumerated the actions took one of Target, at 9. 2d 111.322.16 Wis. Stat. provides: § 111.322 Wisconsin Stat. Discriminatory prohibited. actions disability proven by
¶ 43. Once a has been *22 employee, employer the burden then shifts to the prove a defense under Wis. Stat. 111.34. Id. dispute among case, In this there nois parties meaning that Catlin was disabled within the of WFEA, or that she was not allowed to return to disability. Also, work because of her it is uncontested disability reasonably that Catlin's was related to her adequately job performing responsibilities, her unless question reasonable accommodations were made. The whether, remains with reasonable accommodations job- Catlin must then be able to all of the responsibilities adequately. question related Also left in is whether or not there was a reasonable accommoda- Crystal provided tion that Lake could have hardship. interpretation without Under LIRC's of "rea- Crystal accommodation," sonable it found that Lake job could have modified Catlin's duties to accommodate disability. reviewing her may Catlin contends that a court independent
not make an determination of the facts,17and that the decision LIRC should not be set aside supported by can unless it be shown that the decision was not (citing
substantial evidence.
11
Id. at
Dept.,
Hamilton v. ILHR
611,
94
2d
288
Subject
111.36,
employment
to ss. 111.33 to
it is an act of
any
following:
discrimination to do
(1)
hire, employ,
any individual,
To refuse to
admit or license
to bar
employment
organization membership
or terminate from
or labor
any individual,
against any
pro-
to discriminate
individual in
motion,
terms,
compensation
privileges
or in
conditions or
because,
employment
organization membership
any
or labor
basis enumerated in s. 111.321.
PSC,
608, 629,
See Hixon v.
32 Wis. 2d
modify make modifica- duties and Catlin's plant accommodation. a reasonable as tions to the interpre- argues case, LIRC's that, in this unreasonable. reasonable accommodation tation of interpretation, an em- Lake's alternate Under ployer only required to assist be would job responsibilities some if there is his or with the em- enable that will accommodation reasonable ployee job duties. of his or her all to undertake required argues not be would that an Lake modify *23 employee exempt employee's an duties, or to an Crystal Lake having perform certain duties. from to heavily the ADA under court decisions on federal relies using interpretation. the support The for basis of its in interpreting is, ac- accommodation reasonable in ADA similarity in lan- cording Lake, due to the purpose guage to the WFEA. federal statute physical modifications Lake asserts have would plant Catlin's duties modification and/or company. hardship Catlin takes posed for the meeting its burden position failed in hardship. proving Analysis B. may Though law to federal look
¶
this court
interpretation
determining
guidance
if LIRC's
for
reasonable, we are
was
accommodation"
"reasonable
interpreting
Id.
by
WFEA.
casés in
those
not bound
also
McMullen,
275-76. See
2d at
18-19;
at
Dep't,
Corp.
2d
101 Wis.
v. ILHR
Motors
American
(1981).
353,
analogous
[s],
.. .
legislation
federal
differ
sometimes
111.34(l)(b).
significantly,
from
found in sec.
. ..
legislature
[The
Our
Wisconsin]
has established its own
dealing
scheme for
employment
with
discrimination
based on handicap and has articulated
specific
policy
underlying
considerations
that scheme. There-
111.34(1)(b)
fore, we will construe sec.
in accordance
legislature's
with our
intention rather than with the
jurisdictions.
intention of other
Clearly,
McMullen,
dressed the issue of of reasonable accom- Target modation in both and McMullen. In case, each appeals the court of held that a reasonable accommo- only dation was not limited to an accommodation that permit employee would all of or her his job responsibilities. Target, upheld the court a decision "temporarily enforcing disciplin-
LIRC to
refrain from
ary
against
rule"
as a reasonable accom-
*24
Target,
employee
modation.
228 job responsibilities. adequately However, the court her upheld accommodation, decision as a reasonable immediately though her to it did not allow even job adequately Id. at 16-18. duties. Similarly, appeals McMullen, of the court employee
required an to to transfer position a reasonable accommodation different as disability. employee's a" court held that 'reasonable The may accommodation' of a handi- include transfer capped employee position for he is to which another qualified, depending on the facts of each individual McMullen, This 148 2d at 271. accommoda- case." Wis. perform his the to tion also did not allow placed him in a duties, but instead better current essentially a It to his current abilities. was suited change job-related employee's modification in the responsibilities. Lay, despite LIRC, the fact Inc. v. In Frito legislature the added it decided before was requirement WFEA, accommodation
reasonable arrangements appeals made held that court employee's among employees accommodate one other exception employer's disability, negated claim an employment against on discrimination based to the law disability. Lay, LIRC, v. 2d Frito Inc. 1980). (Ct. App. case, In that 407-08, 290 N.W.2d including complainant, Lay employed drivers, Frito from and intrastate deliveries to make both interstate complainant The Id. at 399. its in Beloit. warehouse acuity barred truck whose lack visual was a driver requirements dif- and Federal him because Wisconsin Id. deliveries. interstate, but not intrastate fered for Delivery seniority, all were allocated based on runs agreed complainant ensure that drivers senior only The held that this Id. court he had intrastate runs. *25 discharge accommodation did not allow the (inter- complainant failing the for to meet the federal state) requirements. vision Id. at 408. case, In this at least two of the three other
employees
department agreed
in Catlin's
that it would
change
be feasible for them to accommodate a
in
disability.
Catlin's duties because of her
This further
supports
Lay
reasonableness,
under
and the
Frito
job
WFEA,
current
of such a modification.18
prior
Target,
¶ 52. Based on the
decisions in
Mc
Lay,
Mullen,
interpreta
and Frito
we hold that LIRC's
tion
"reasonable accommodation" is not unreason
able, but rather
is a reasonable
Aone.
reasonable
accommodation is not limited to that which would allow
perform adequately
job
all of his or her
change
job
may
duties. A
in
duties
be a reasonable
given
Target,
accommodation in a
circumstance. See
1; McMullen,
2dWis.
VI. ISSUE TWO—DUE argues Crystal due ¶ Lake that it was denied 54. rejected hearsay testimony process of when LIRC the regarding constructing Phillip of Robertson, the cost Crystal bathroom. Lake contends wheelchair accessible regard the ALJ LIRC should have consulted with that argues ing credibility. however, Catlin, Robertson's by Crystal process not denied due Lake was credibility regarding to consult with the ALJ failure depend the did not on issues, since LIRC's decision credibility credibility was not of Because the witness. hinged, upon the commission's decision the which basis required examiner were not the commission and the testimony Rather, of was dis Robertson consult. hearsay. Catlin, because it was uncorroborated missed reject therefore, that LIRC was correct asserts findings finding cannot be ALJ, since crucial testimony Village hearsay Menom on alone. based 579, 412 N.W.2d505 DNR, 610, 2d Falls v. onee 1987). (Ct. App. points position, support out Catlin interpretation of its reached its decision because
LIRC applied case, be to the Stat. 111.34 should of how Wis. reaching credibility not a factor was and that present Crystal opportunity its Lake had decision. 113, Dissent, 118, proper The job responsibilities. ability to her or his emphasis employee's is on as on terms such "some" rather than responsibilities adequately, "all." or "most" or
argument hearing at the and the ALJ ruled in favor. its argues fact that LIRC reached a result Crystal than different thé ALJ does not mean that process rights put, Simply Lake's due were violated. there were reasonable alternative conclusions one could testimony draw from one LIRC chose that was Consequently, than different the ALJ's. Lake's process rights due were not violated LIRC's decision.
¶ 56. Lake maintains that it was denied process only due when LIRC failed to confer with credibility, rejected the ALJ on issues of but when LIRC objection evidence that was admitted without at the hearing. specifically, points More out that regularly while the ALJ determined that Catlin had to *27 positions the functions of the other in the department, opposite LIRC determined the without conferring Crystal argues ever with the ALJ. Lake that process required due would have LIRC to confer with reversing the ALJ before the ALJ's determination. Essentially, Crystal argues ¶ 57. Lake that LIRC's prior reversing failure to consult with the ALJ the rejection decision, as well as its of Robertson's testi- mony grounds, hearsay on constituted a denial of due process ultimately finding and led to LIRC's that there Crystal was a reasonable accommodation that provided hardship. could have without argues ¶ 58. Catlin that the LIRC decision did not depend credibility testimony, on the of witness but interpreted testimony rather that LIRC in a differ- way. example, accepting ent For than rather the ALJ's regularly determination that Catlin assisted others in department, only the wholesale LIRC noted that the "frequency" record did not indicate the with which she argues assisted the other workers. Catlin that there were reasonable alternative conclusions one could draw hap- just.because testimony, LIRC and from the same pened from that was different reach a conclusion imply Crystal against interest, does not ALJ, Lakes' rights process were violated. Lakes' due Essentially, argues LIRC interpretation of how of its its decision because reached applied case, to the 111.34 should be Stat. reaching credibility that deci- a factor was not Crystal Lake's result, LIRC did not violate sion. As rights. process due agree Lake was We and hold that process by LIRC's failure consult with
denied due credibility findings regarding were since LIRC's ALJ credibility operation upon not based testimony. manager's its Rather, LIRC reached decision interpretation Stat. 111.34 of how Wis. of its because differently, applied facts case. Put should be interpretation of the statute the case and LIRC's hold Thus, LIRC's decision. we the real reasons for were upon hinge did not witness LIRC's decision that since credibility,20 required to consult with LIRC was not due not denied therefore, Lake was and, ALJ process. EVIDENCE- THREE—SUBSTANTIAL
VII. ISSUE WITHOUT ACCOMMODATION REASONABLE HARDSHIP *28 argues Crystal LIRC's factual that Lake evidentiary support
findings in record. lacked Crystal holding have accommodated Lake could that hardship, could found that Catlin LIRC Catlin without to turn disagree attempt dissent's with the strongly We "credibility interpretations into assessments." statutory LIRC's Dissent, 90, 133-136. ¶¶ Crystal perform
still most of her duties. Lake counters finding against that this evidence the record. It position regularly performed maintains its that Catlin only activities, several which LIRC found Catlin did Crystal infrequently. Lake maintains that it is critical perform only that Catlin should able to be her regular positions tasks, but all tasks for all in the department. Crystal Additionally,
¶ 62. Lake asserts that the support finding record does not that neither physical plant, modifications to nor modifications to posed hardship duties, Catlin's would have to the company. points It to the $47,000 estimate for a restroom, wheelchair-accessible plant well as as other proof hardship. Crystal modifications, as Lake points appeals acknowledged out that court that modifying may production Catlin's duties lead slow- Crystal disagrees, however, downs. Lake with the court appeals proving Lake fell short of hardship go when it failed to further and ensure there consequences was evidence in the record of the of such slowdowns.
¶ 63. LIRC, maintains that in this in- stance, has determined that there was substantial evi- support dence its determination reasonable appropriate were accommodations for Lake to perform make. LIRC found that Catlin could most of argues duties, and that the duties regular respon- Catlin could not were not her interpretation sibilities. Under LIRC's of the statutes, long as as Catlin could duties, some of her which the could, record indicated she then there were reasonable accommodations could and should have *29 perform would be able to Catlin felt that she made. been part job or no of her with little that were most tasks accommodation. Crystal had no 64. Catlin asserts that capable regarding
knowledge of what duties she was performing, her what accommodations and never asked might thought that the need. Catlin contends she she duty gather to found to include has been WFEA employee and from information from sufficient experts, qualified accom- needed, to determine what as necessary. UW-Milwaukee, v. are Keller No. modations (Wis. Mar. Personnel Comm'n. 90-0140-PC-ER, 1993). satisfy argues that Lake failed to Catlin duty. Catlin had a Lake was aware that require disability some sort accommoda- and would inquire approached what her about tion, never to but Additionally, capable performing. duties she was at the Lake did look Catlin contends position transferring possibility if it her to another job. adequately She her could not felt she may argues a reasonable also be that such a transfer Stat. under the WFEA. Wis. accommodation 111.34(l)(b). changes argues minor that with 65. She technology, building she could have assistive and some job. performed asserts, the Annis assess- her Catlin way points Catlin accommodate out, the easiest ment modify duties so that would have been demanding physically the more not have did Everyone department cross-trained, was tasks. team members three other at least two of the up they acknowledged for Catlin's could make duties. restricted *30 Based the on evidence contained argues clearly Catlin
record, that there was a sufficient support findings of amount credible evidence to of LIRC. complainant disability
¶ 67. The ain discrimina- (1) tion, WFEA, under the must show that: he or she (2) handicapped employer WFEA, under that the proscribed enumerated, has taken one of the actions Target, under the WFEA. Wis. 2d at 9. Once the complainant showings, made has these two the em- may ployer proffer a defense that the accommodations complainant impose hardship named would a on employer. employer Id. In such a case the has the proving hardship. burden that Id. at 9-10. If the employer prove fails defense, it is in violation of WFEA. 111.34(1)(B) § Hardship
A. Wisconsin Stat. Although Crystal argues ¶ 68. Lake that reason- ably accommodating Catlin would have resulted ain hardship argues Crystal it, for Catlin Lake did not proving hardship pursuant meet burden its to Wis. § 111.34(l)(b), Stat. nor did it meet its burden under 111.34(2)(a). Target, Wis. Stat. 2d Wis. at 10. employer reasonably [I]f an refuses to accommodate an (or employee's prospective employee's) handicap and is unable to demonstrate that the accommodation would hardship, a pose then the violates the WFEA. 111.34(l)(b). Reading Stat. paragraphs the two §of together, 111.34 employee once the has met the showings, first two the employer must show either that a reasonable impose accommodation hardship would a that, 111.34(l)(b), —§ even awith accom- reasonable modation, "adequately cannot undertake 111.34(2)(a). job-related responsibilities" §— Id. points support argument, her Catlin any Crystal Lake did not offer evidence show- hardship
out that ing accommodating a be for it. would specifically, points out that Lake More showing by exempting her evidence offered no perform it she would suffer from duties hardship. could contends that Moreover, Catlin explore have not even accommodations it could did any particular her, for let alone show that accom- made hardship impose upon it. Catlin modation would Factory, the owner of Lake Cheese states that testimony. Curella, much in his Curella admitted as any for he make effort whatsoever testified that "didn't *31 [Catlin] might appropriate for be accommodations what (R. 14:4). . . ." to return to work . argues Catlin that restructur- Furthermore, 70. imposed hardship
ing a her duties have would four-person Crystal everyone in the Lake on since department depart- in the was in all tasks cross-trained department ment, were and that other members heavy willing physical that Catlin tasks the department did not The members could not do. other get object they dispropor- if would a even this meant previously, noted the share of those duties. As tionate al- Catlin's sister who other team members included ready cutter, as Catlin's had heaviest heavy willing mother. Both of them were physical LIRC found could not do. tasks that Catlin Crystal Catlin without Lake could have accommodated heavy hardship exempting performing by her from beyond capabilities, by physical that tasks were workplace. making physical modifications some Employment Findings p. LIRC, Decision, 16, 19, Fair 2000). (May 5, 4-5 regard hearsay testimony
¶ In to the a that new wheelchair accessible bathroom cost would Crystal provided $47,000, Catlin contends that Lake no support figure. documentation to argues Moreover, Catlin Crystal that there was no as to evidence what Lake's financial resources were like. As a Catlin result, argues possible may $47,000 that it is that the not have significant Crystal Lake, been cost for in relation to its showing financial There situation. was no evidence Crystal reasonably Lake could not afford such an ex- pense. argues alleged While Lake that the cost new bathroom would three be times Catlin's wages, legal Catlin contends that there is no basis for argument. points such an Catlin out that a bath- new employees. room could be used all such, As Catlin argues prove Lake failed to that accommo- dating impose hardship her would on it. Lastly, argues
¶ 72. Catlin that the other neces- sary physical would modifications that be needed in relatively inexpensive. order accommodate her were addressing One modification included the three-inch entry something door, threshold on the she could claims easily ramp. be with a remedied small Other modifica- changes tions dealt with that could be made to the factory lowering such as the items, of tables and other necessary, widening and, where of aisles. summary, agues *32 proof did meet its burden of accommodation impose hardship pursuant would a to Wis. Stat. 111.34(l)(b). present party ¶ disputes 74. In case, the neither handicapped Crystal that Catlin is or that Lake took handicap. termination based issues, action on that The supports, therefore, are whether the record with sub- evidence, stantial and credible LIRC's conclusion that Crystal were available reasonable accommodations per- that would allow Catlin to Lake, accommodations Crystal duties, has failed to form her and that reasonable accommodations demonstrate that those Crystal hardship Lake. create a for would Analysis B. determining
¶ re- 75. whether an quired, WFEA, to accommodate disabled under the employee, questions of the accom- of reasonableness overlap- hardship employer, modation and to the while "separate ping, are and distinct considerations that two independently." McMullen, are to be addressed 148 Wis. examining for evidence to Thus, at 277. in the record 2d support the two as distinct each, we will also treat determinations. evidence in In this case there is substantial hardship support that, record conclusion
the notwithstanding, there accommoda- were reasonable keep taken in order to Lake could have tions employee. have Lake could modi- Catlin as an jobsite access, full let fied the to allow Catlin she is still continue to those tasks able Among perform. that could and the accommodations ramp, installed at the considered: should have been entrance, access; allow the tables and wheelchair would lowered; could be bathroom could be other fixtures necessary, be modified; and, where aisles could widened. legislature modified When state require employ- provisions in it added WFEA applicants employees dealing handicapped with ers in the individual order determine to evaluate requirements of he or she can meet whether question. Lake in this Stat. 111.34. *33 investigate case failed to what Catlin herself could still despite disability. job analysis do her Johnson, only Genex, evaluator from was told that he was to job job regard person examine the site with to a Crystal a wheelchair. At no time did Lake contact Catlin; in fact, there is evidence in the record that Crystal managers phone Lake This avoided her calls. by Crystal appears failure Lake to have been a violation of the intent of the WFEA. way Crystal
¶ 78. Another Lake could have ac- disability by modifying commodated Catlin's is responsibilities. This accommodation, we hold, appears to be reasonable under the circumstances purview here and within the of the WFEA. The other employees among physi- could divide themselves those cal tasks Catlin is now do, unable to and she could focus just many responsibilities on the that she can do. As employees noted, they other have testified that would willing be and able to do this. Having
¶ 79.
found substantial and credible evi-
support
dence in
Crystal
finding
the record to
reasonably
Lake could have
accommodated
hardship
Crystal
Catlin, we now turn to the issue of
for
previously,
Lake. As noted
we are satisfied that LIRC's
great weight
determinations are entitled to
on this issue
deference
required
as well. Since Catlin has made the
showings
handicapped
that she is
and the em-
ployer
proscribed
taken
has
action under the WFEA,
showing
hardship.
has the burden of
Target,
Lake hardship. has failed in its burden to Fur- agree appeals ther, we with the court of that this matter should not be remanded to allow Lake to attempt showing hardship. now to make a new rely argued chose to on what it was an *34 interpretation LIRC. Failed erroneous of WFEA strategy grounds State v. is not for remand. See trial McDonald, 534, 538, 2d 184 N.W.2d 50 Wis.
(1971).
VIII. CONCLUSION ap- ¶ of the of affirm the decision court 81. We . requiring Crystal peals. Accordingly, we hold modify Catlin and make to physical duties Susan workplace unrea- modifications to the is not accommodation. and would be a reasonable sonable ability accommodations, she would have the With such job-related responsibili- adequately undertake ties. Crystal
¶ Lake was not Next, 82. we hold that reversing prior process LIRC, when denied due regarding holding, failed to consult with the ALJ ALJ's credibility LIRC's issues. We hold that since witness credibility, findings hinge LIRC was did not on issues of required was, there ALJ, to confer with the and that not process Lake's due therefore, no violation rights. on decision here based its LIRC reached its application interpretation proper of Wis. Stat. presented. § 111.34 to the facts Finally, ¶ hold that there was substantial we justify in the record to and credible evidence findings. evidence to show that There was substantial accommoda- Lake could have made reasonable failed to meet its Catlin, and Lake has tions for establishing accommo- that such reasonable burden hardship on it. for would create dations appeals By decision of the court of the Court.—The affirmed. (dissenting). PROSSER, T. J. The 84. DAVID majority reasonably opinion accommodate the does rights employers. interests and of Wisconsin By ruling Catlin, in favor of Susan the Labor (LIRC) incorrectly Industry Review Commission Employment interpreted the Fair Act's Wisconsin (WFEA) employment ban on discrimination on disability. requires basis of LIRC held that the WFEA applicant to "accommodate" an or em- applicant ployee perform all that cannot employee's necessary responsibilities, even with strongly disagree I with reasonable accommodations. interpretation this imposes of the WFEA and with the burden it employers.
on *35 Today, majority ¶ a 86. of this court affirms this statutory misinterpretation in the first instance —made by agency adopts an errone- administrative this —and approach process, ous as the law of this state. In the ability employers taken from court has Wisconsin job required employees. define the duties of their This is by altogether a result unintended the WFEA. majority disagree pri- ¶ in 87. I with the three mary respects. companion agency,
¶ First, LIRC and its Commission, Wisconsin Personnel have not consis- tently removing necessary ruled that elements of an employee's job can be considered a reasonable accom- 111.34(l)(b) § modation under Wis. Stat. is consis- 111.34(2)(a). § grant only Therefore, tent I with would weight interpretation due deference to LIRC's of how § governs employment 111.34 adverse actions taken against employee applicant perform an that cannot job necessary all the applies functions of the for which she already or for which she is hired. § interpretation in Second, 111.34 manifestly readily case is less reasonable than meaning. alternative Section
understandable 111.34(2)(a), conjunction when even read with 111.34(l)(b), require appli- cannot be read to that an only cant or need be able to "some"or responsibilities "most" of the basic that he or compel she fills in order to to hire or retain person. Rather, the reasonable accommodations contemplated by 111.34 are those that assist the employee's ability perform preexisting job. disabled job" by are "The is defined the basic duties that incum- upon employment. bent Finally, impermissible
¶ 90. it was for LIRC to find unlawful discrimination on the basis of factual that were inconsistent with those reached conclusions (ALJ) judge having the administrative law without findings factual first conferred with regarding ALJ. LIRC's responsibilities that the the nature complainant could or could not after her acci- testimony predominantly dent were on from the based complainant herself and others. To declare that these credibility findings are not based on assessments is astounding. respectfully reasons, I dissent. 91. For these
I. OF THE RESTATEMENT FACTS *36 highlight ¶ matter, 92. As an initial I must in re- central factual matter at issue this case: what job sponsibilities perform could after an of Catlin's she injury wheelchair, and duties confined her to what perform, accommo- could she not even with reasonable dations? worker/supervisor
¶ lead 93. Catlin's was Factory's department. Crystal Lake Cheese wholesale department, four-person supervisor of this As the variety job required perform a of duties. her to Catlin's findings majority adopted as The has LIRC's ability adequately perform "most" of to Catlin's following that, her accident. LIRC concluded duties (1) sought reinstatement, Catlin could as of the date she (4) (2) (3) employees; labels; boxes; make make train (5) (if "reacher" to cheese; cheese she used a bake label (8) (6) (7) labels); weigh price get cheese; cheese; at the (10) (9) put pallets; do cheese; the cheese on box (11) up inventory paperwork; and clean and and other during equipment. testimony the hear- Catlin's wash supports findings ings before the ALJ quantitative purely could, matter, Catlin as these tasks. There is a nontrivial number of duties also has admitted—
that LIRC found—and which Catlin perform. could not that she could not (1) including lifting physical tasks, "some"of the heavier (2) loading unloading 40-pound cheese; and blocks of (3) reaching trucks; hand and cheese onto carts semi (4) reaching high storeroom; in the stacked boxes (5) cutting high cheese; in cooler; stacked cheese (6) placing the cheese in the hot-water bath to proclaimed shrink-wrap the last two it. LIRC "very performed fre- duties were not ones that Catlin jobs they primarily quently," cheese as were "cryovacer." Conspicuously ei- absent from cutter vacuum-bagging role of the ther of LIRC's lists is cryovac cryovacer, operation of a which involves the prior her accident Catlin had addition, machine. In moving a handcart and cheese use of assisted *37 loading go pickup it to on a truck to the retail store.1 perform accident, her After Catlin unable was to either these of two functions as well. disagreement all, In there is no between the
parties respective experts or their that Catlin was physically perform to a fair of unable number her duties, even with reasonable accommodations. determining
¶ 97. whether Catlin could under- job responsibilities adequately, appears her take it mostly quantitative approach. simply LIRC took LIRC perform, counted the number of duties Catlin could added this number she those duties that could compared with accommodation, then jobs perform. total to the number of that she could not Accordingly, it determined that Catlin could analytical technique "most" of her This functions. suspect, it because fails to account for the amount of spent daily jobs time Catlin each of on and the importance relative of each of tasks that she was required perform. engaging Rather than in such an analysis assigning weight job require- to Catlin's slapped ambiguous ments, LIRC "most" modifier on the number of duties that could she still do con- anymore cluded that the duties she could not do were performed very frequently." those that she had "not mostly ambiguous testimony ¶ 98. There is re- garding length how often and for what of time engaged any As a result, duties. it is difficult to performance determine these how each of tasks ability adequately perform relates Catlin's 1 This truck took pickup loading process apparently place primarily, though exclusively, at Christmas time. necessary position.2 However, to her
functions that are *38 spent on of amount of time that she one we do know the only spent that about one to tasks; her we know she beginning day han- at of her hours the one-and-a-half dling general paperwork and administrative duties. her According of to the "modifications" recommendation expert, "paperwork" duties however, these Catlin's job majority upon Catlin's would have constituted the her "accommodation."3 any wit- event, and several other Catlin primary responsibilities testified that one of the
nesses department employees in was four this to under- jobs employees in other three the event take the of the duty LIRC Catlin able to do was "train." One that "found" who Catlin testified that there was a man was cross-trained began department. in the wholesale Because Catlin when she worker, it is took on the the lead assumed that she was only in cross-training This is of this individual. instance may engaged have in previously indicated that she which Catlin "training" training, assumption. and this is Yet is one even injury. findings Catlin could do after her To be of what loading sure, longer also could aid in it was found Catlin no testimony only unloading and trucks. There is some she It occasionally, especially needed to do around December. two, relatively minor functions would would seem that these cancel each other out.
3According Jeffrey Annis, technologist to the rehabilitation job site of Catlin's and who conducted an assessment capabilities for Catlin: see, only opportunity [Catlin] far as would have As I can position if have return there would been
had to put option place. in The easier would numerous accommodations description make so she would be be to modifications work, packag- person, only paper required, as lead do final invoices, ing, filling receipts, packing lists. out added.) (Emphasis temporary
of a absence or if another were falling help. example, behind and needed For "jumped 40-pound testified that she often in" to take blocks of cheese to and from the cooler and that some days couple day." she would do this "a of times a This required only task her not to lift the blocks but also to higher Naturally, reach to the shelves the cooler. ability employees together of these four to work and to smoothly by filling work in when needed was essential efficiency department's production process. In all, Catlin assisted with all the duties of the whole- department daily many sale on a basis and of these longer perform duties she could no after her accident. *39 ¶ 100. Nevertheless, LIRC concluded that Catlin assigned performing could be all but the "heaviest physical department tasks" in a where such tasks are commonplace employees, including and where all Cat- required lin, were each other's duties on a daily basis. Of course, LIRC's conclusion is based on a different view of the facts than that of the ALJ who first particular heard this case. Of concern is the difference between how the ALJ and LIRC characterized the frequency by which Catlin assisted other members of department, including help "heavy the physical with the findings tasks." The ALJ concluded in his of fact that department "regularly each in the had to keep flowing smoothly assist each other to work and temporary cover for each other when absences oc- curred." Meanwhile, LIRC concluded that the duties which Catlin could not were tasks that she did "very frequently" "helped do and were those that she only occasionally." out Well, which is it?
247 II. LEVEL OF DEFERENCE majority begins analysis ¶ 101. its incor- The rectly finding legal in this that conclusions case LIRC's extremely deferential treatment under are entitled to "great weight" review. court standard of As this has the previously stated: has appropriate deference once a court weight Great is (1) charged by the was the agency
concluded that: statute; duty legislature administering the with (2) interpretation agency of the is one of (3) employed exper- long-standing; agency that the its forming interpre- specialized knowledge tise or tation; in (4) will agency's interpretation and uniformity consistency in provide application of the statute.
Harnischfeger Corp. LIRC, 660, v. 196 Wis. 2d 539 (1995); LIRC, 98 see UFE v. 201 Wis. 2d N.W.2d also (1996); Linsey LIRC, 274, 284, v. 548 N.W.2d (1992). LIRC has failed 499, 505, 2d 493 N.W.2d prongs Thus, meet the of the test. second fourth weight great I deference is an would conclude inappropriate of review. standard Though experience interpret
¶ 102. LIRC has interpretation ing 111.34, Wis. Stat. on not one satisfy statute matters related to this issue is "long standing." Therefore, does not LIRC pre prong "[t]his of the test. I believe that second *40 weight cisely due deference: situation warrants experience [Wis. interpreting LIRC has had some Stat. particular § yet 111.34], not has faced the circum LIRC, v. 69, we have here." Brauneis 2000 WI stances ¶ 19, 27, 236 2d 612 635. N.W.2d yet spe-
¶ Indeed, LIRC has address "reasonable accommodation" un- cific issue of whether duty multiple, der the includes a to eliminate WFEA job wholly employee basic duties of an and to create a job previously different, employee. nonexistent for a disabled incorrectly LIRC cites Fields v. Cardinal TG (LIRC 2001), Co., 16, ERD Case No. 1997-02574 Feb. as support proposition conclusive for the that LIRC has require held a reasonable accommodation to an em- ployer physical to restructure the demands of the in employee. put- order to accommodate a disabled Even ting aside Fields was decided well the eviden- after tiary hearing actually in case, this that case held that an employer may of a restructure disabled employee longer such that the is no able to disability. it of a because legal Fields, 104. Outside of LIRC cites no au- thority precedent opinions directly from its own support prior history following pres- the rule it its ently may Thus, advances. while LIRC have addressed question, cases that are similar to this is the first particular occurrence under these circumstances. great weight Therefore, deference not be af- should interpretation. 695 v. forded to LIRC's See Local No. (1990). LIRC, 81, 75, 154 Wis. 2d 452 N.W.2d368 To the extent LIRC has addressed issues modifying jobs accommodating related as a means of disability, history employee's spotty it has a uniformity consistency applying providing in LIRC, 111.34. In McMullen v. 148 Wis. 2d (Ct. 1988), given App. no defer- N.W.2d830 LIRC was interpretation ence in of 111.34 due to its incon- its regarding ac- whether a reasonable sistent statements employee's commodation could ever include an transfer position. to another Id. at 274. LIRC had stated its transferring in the matter a disabled own decision employee position may to another be considered *41 facing accommodation. Id. When the court reasonable appeals, position however, LIRC reversed its of argued employer's duty
that an to accommodate could only a Id. did LIRC contra- never include transfer. Not single case, the framework of a it did so dict itself within topic a similar to the issue in this case. on only Indeed, is not case McMullen illustrating interpreting LIRC's limitations when §111.34 present case. In on issues related to Co-op, Macara v. Consumer ERD Case No. 8802872 (LIRC 1992), duty 14, LIRC held that Feb. creating require position accommodate does not discharging a or employee to for a transfer of another allow employee. Meanwhile, 1988, in the Wisconsin disabled agency, Commission, Personnel LIRC's sister had ana- 111.34(2)(a) 111.34(l)(b) § § lyzed light in and ruled require to create that the WFEA does not job reassign a new duties to other staff as a DHSS, v. reasonable accommodation. Harris Case No. (Wis. 11, 84-0109-PC-ER Personnel Comm'n Feb. 1988). employer's obligation Rather, "the is limited to job-related responsibilities handicapped particular employment he individual's vis-á-vis the occupies applying." or for he or she is Id. at or she which foregoing decisions, conclu- 14-15. both these particular to the facts of the case but sions were general legal principles. offered as were nothing history else, If indicates incon- sistency agency interpretations Stat. 111.34 "[S]pecial deference to be afforded an on this matter. agency interpreta- is the result of course of uniform period 2d at tion over a of time." Local No. 154Wis. preceding history, hardly there has been 84. Given application of 111.34 LIRC and the Wis- uniform weight Therefore, due Commission. consin Personnel *42 clearly in this be afforded case. should weight ¶ standard, due "a court 108. Under the agency's interpretation which, need not defer to an interpretation which the reasonable, is not the while and most reasonable." Harnis court considers best chfeger, Brauneis, 236 n.4; 196 2d at 660 see also Wis. ("Pursuant weight ¶27, deference, to due an Wis. 2d agency's statutory interpretation is accorded some conclusive."). weight, This court is not bound but is statutory interpretation. by Brauneis, See LIRC's agency's interpre ¶ that the 2d 15. "The fact Wis. interpreta is reasonable does not mean that its tation necessarily upheld. If an be a court finds tion will interpretation reasonable, it need not alternative adopt more agency's interpretation." UFE, 2d at 201 Wis. the Therefore, finds, if court means of its own 287. this interpretation independent analysis, an alternative adopt the reasonable, more then it need not agency's interpretation. By adopting
¶ level of deference an incorrect legal regarding conclusion, this court has abdi- under cated its role to define the law established passively Chapter the 111 and has allowed establish- wholly interpretation of the ment a less reasonable given inconsistency minimum, law. At agencies addressing issues, and similar administrative addressing precise issue, the lack of LIRC decisions engaged independent in an this court should have question. § on this review of what 111.34 demands § STAT. 111.34 III. PROPER APPLICATION OF WIS. prohibits employment dis- 110. The WFEA disability. Stat. See Wis. crimination on basis employ- §§ Accordingly, it 111.321, 111.34. is unlawful reasonably [e] accom- ment discrimination "refus employee's prospective employee's modate ity disabil- can demonstrate that unless pose hardship accommodation would on the em- 111.34(b). [] ployer . . . Stat. legislature provided However, has affir- employment to a claim
mative defenses WFEA dis- disability. present case, crimination on In the based we only 111.34(2)(a), need look at which states:
Notwithstanding prohibition [the s. 111.322 discrimination], against it employment employ- is not disability ment discrimination because of refuse to hire, employ... employ- to bar or terminate from any disability ment . if . . individual... is reason- ably *43 ability adequately related to the individual's to job-related undertake the responsibilities of employment.... individual's added). 111.34(2)(a) § (emphasis Wis. Stat. majority quite accurately
¶ 112. The
describes the
111.34(l)(b)
111.34(2)(a),
§§
relationship between
and
stating:
together,
provisions] require
[the
"Taken
an
prove
to
that even with reasonable accommo-
employee
perform
dations, the
would not be able to
his
job responsibilities,
that,
or her
where reasonable
accommodations would enable the
to do the
job, hardship
placed
employer." Major-
would be
on the
ity op.,
(citing Target
¶
LIRC,
Stores v.
217 Wis. 2d
(Ct.
1998))
App.
(emphasis
1, 17,
¶ responsibilities may 116. To sure, be some necessary, they fundamentally not be in that do not job being performed. gen- alter the Nevertheless, as a required eral matter, the reasonable accommodations 111.34(l)(b) go aiding employee under must applicant job performing responsibilities in for they which are, be, or will times hired. There will be employer when an will have to endure additional costs reasonably accommodate an individual so that the employee can all of his or her duties. employing Because of the additional cost of this indi- require vidual over someone who would not accommo- likely prefer, dation, the would as a economic person. matter, not to hire the disabled The WFEA, type however, has made this of discrimination unlawful. protection wisely provided by It is this WFEA.
¶ 117. What the WFEA does not make unlawful is employer's decision not to hire or retain an disability, who, because of his or her cannot necessary job, duties of the even with all reasonable accommodations. questionable reasoning 118. The of LIRC's in-
terpretation circularity majority's is seen in the holding, requiring states, which it "we hold that modify Lake to duties of Susan Gatlin physical and make workplace, accommodations to the was not unreasonable. With such reasonable accommo- ability dations, she would undertake, have the ad- equately, job-related responsibilities." Majority op., Assuming "job "job responsibili- duties" and synonymous, ties" are how can Catlin undertake her *45 job-related "adequately" responsibilities, otherwise, if responsibilities? perform those need she does not to "modify" euphemism majority so LIRC and the use as multiple, require to Lake to eliminate basic as job Catlin hired. Even of the for which was duties majority notion that endorses the nebulous worse, the only applicant perform employee or need "some" or job her his or duties.5 "most" of ¶ LIRC also misconstrue the well- 119. Catlin and expressed legislative of the WFEA. The WFEA intent employment people with does not mandate the full per encourages employment se. It full disabilities properly persons qualified with disabilities. Wis. Stat. 111.31(3). consistently argue § LIRC for— Catlin and majority grants interpre- apparently and the them —an purpose in 111.34 that effectuates a tation of whereby Crystal required give Lake is to Catlin WFEA job job any not fit within some one that does —even — enterprise. of the This outcome the structure business persons for who are is not what the WFEA intends job. By injuries, perform a of her unable to virtue qualified perform properly for which was not reassigned have hired; she nor could she been was qualified. open was another for which she was argue not reasonable 120. Catlin does adequately physical and reason- accommodations would disability thereby ably compensate for allow her job. necessary of her functions physical if finds Therefore, even the court are demanded Catlin and LIRC accommodations majority's formula This answer is inconsistent with case, it primary tion issue in this which describes as: of the must then be "whether, reasonable accommodations Catlin with job-related responsibilities all ad able op., equately." Majority impose hardship,6
unreasonable and do not (2)(a) requires 111.34 still that the be able to *46 actually necessary job do the functions of the with those Again, accommodations. it is conceded that Catlin is many necessary unable to do of the duties of her performed daily. that she had inescapable ¶ ruling 121. The effect of LIRC's is (1) Crystal nobody perform Lake must either have thereby the duties that Catlin do, used to decrease (2) productivity; employee hire a new to do these duties (3) unnecessary and incur existing costs7; or have other employees undertake the duties that can no longer perform, thereby taking employees away these they performing. from the duties would otherwise be options necessarily imposes hardship Each of these on 111.34(2)(a) employer expressly in a manner that states need not occur. worry
¶ profit, 122. Businesses must about which through efficiency. Crystal is specific assigned achieved depart- duties to the Catlin's in individuals presumably efficiency. ment, to increase Indeed, all the department members of the were cross-trained in all jobs the other in order to be more efficient and diverse production process. away in their in roles Take one components process, of the in this and an intimate, 6 I Crystal do not concede that Lake has failed to establish hardship physical based on the required accommodations facility to handle Catlin's needs. 7LIRC stated in its Memorandum Opinion Lake failed to establish that it would have needed to hire help additional if permitted Catlin was not to all her However, ALJ, duties. before Robertson, Phillip operations Lake's manager, directly testified that company would required have been to hire help additional in situation. pro- process production
finely loses the level tuned, four-person ductivity unit. for this set majority admits, all four workers ¶ As the department were cross- wholesale Lake's capable positions, all were "and in all four trained assisting behind, or fell another when an one Majority department than usual." was busier when the requirement of each op., 8.8 This "assistance" By "capability." job, person's virtue of mere not a matter disability, wheelchair, her to which confines of Catlin's assisting incapable frequently other now she is employees department can How, then, as needed. in the job? necessary elements of these she majority Remarkably, twist LIRC and the *47 cross-training significance much out to make of this the testimony not-so-surprising mother Catlin's that of the "help" duties that Catlin with the and sister would Majority op., is ¶¶ This discussion 70, 78. could not do.9 111.34(2)(a) inappropriate. ad- Section irrelevant employee applicant ability at issue dresses the job-related responsibili- "adequately undertake employment." addition, it In individual's ties of 8 assisting each other these circumstances add to We would absent, to illness or either due employee was an at times when job. to other demands argued that "[t]he majority that Catlin fact, the states In [performing object even if did not members department
other get dispropor they would tasks] meant heavy physical Catlin's be an overstate appears This duties." share of those tionate (Catlin's mother members other ment, only two of the three as addition, sister) agree to do so. they would testified biased, speculative, inherently being testimony, besides this had case, Crystal Lake in this hearing by the time of because these at which department the wholesale eliminated apparently employees worked.
ignores necessarily the fact that such "accommodation" diverts Catlin's mother and sister from their own du- ties. Finally,
¶ 125. there has been much ado about nothing related to Lake's method of determin- ing if Catlin could have been accommodated. It is not necessary in this case that Lake, when it reasonably assessed whether Catlin could be accommo- job, dated to her talk with Catlin or inform the professional anything evaluator more about disabil- ity than that she was confined to a wheelchair. In some instances, such as case, there are certain realities person physically in what a confined to a wheelchair is physical to do, unable even all with reasonable accom- modation. telling majority It is offers no
authority directly support the reasonableness of interpretation Contrary of 111.34. to what the majority asserts, the cases it cites do not hold "that a [is] only reasonable accommodation not limited to permit accommodation that would job responsibilities." Majority all of his or her op., ¶ 47. Target Stores, Wis. 2d involved a
temporary disability. appeals and treatable The court of complainant, though held in favor of the even complainant *48 accommodation would not allow the job immediately. all her duties Id. at 14. complainant's disability (sleep apnea) However, the was temporary a one that was treatable. After a short period, employee likely treatment would have been job unlikely able to all her duties. Id. at 7. It is per- that Catlin's rehabilitation will ever allow her to 258 job duties, in form all her either short-term distinguish- long-term Target clearly future. Stores is able. LIRC,
¶ v. 148 2d In McMullen Wis. 128. (Ct. 1988), complainant App. was seek- N.W.2d830 ing open position for he a transfer to an which was qualified. held a accommo- The court reasonable may open position include a transfer to an for dation qualified, though, depending which the upon case, the facts of each individual such transfer may hardship. 271. a Id. at The also be considered majority's required accommoda- assertion that Catlin's similar in tion is occurred McMullen "was what essentially employee's change in a or modification majority op., job-related responsibilities," ¶ 49, is inac- different, a curate. In McMullen there a transfer to was anyway. company position fill needed to vacant existing, requesting open not transfer to an Catlin is asking qualified: position for She is for which she is job daily responsibilities back, certain old with longer adequately per- can eliminated because she no accommodation. This is critical them, form even with distinction from McMullen. Lay, Finally, LIRC, Frito Inc. v. (Ct. 1980), App. the issue of accommodation was
2d 395 any created; rather the one in new was not which again reassigned position complainant to a was once namely, driving qualified intrastate he that trucking was fill— driving routes, than interstate routes rather doing. disability prevented from him which his Target McMullen, Stores, all, unlike majority position Lay, that LIRC and the Frito opinion "fill" at should did exist claim that Catlin injuries, Crystal Lake did not exist when the time of her *49 assessing adequately was whether Catlin could be ac- job, only by commodated to do her and exists now fiat of LIRC. interpretation
¶ all, LIRC's of 111.34, as adopted by majority, highly questionable is imposes an unreasonable burden on Wisconsin busi- require nesses. Section 111.34 cannot be read to that an applicant employee only be able to "some"or necessary responsibilities job. "most" of the See majority op., ¶ 63. Rather, a reasonable accommoda- § 111.34(l)(b), together tion under when read with § 111.34(2)(a), permits is one that perform adequately necessary job all of his or her duties or, in necessary instances, some all the existing job. duties of another Under the facts of this fully case, Lake has met its burden under (2)(a) demonstrating disability 111.34 that Catlin's reasonably ability adequately related to her under- job responsibilities employment. take the of her IV DUE PROCESS & SUBSTANTIAL EVIDENCE majority opinion by reject- 132. The concludes ing Crystal improperly Lake's contention that LIRC by failing reached its decision to confer with the ALJ regarding evidence submitted before the ALJ. The majority findings "hinge states that did not on credibility," issues of witness and therefore LIRC was required Majority op. to consult with the ¶¶ ALJ. majority suggesting 133. The errs, however, only credibility that the element of at issue was that of operations manager, Phillip Lake's Robertson, regarding constructing the cost of a wheelchair- incomplete. credibility accessible bathroom. This is The required conclusions for LIRC to reach its assessments primary importance are the Of involved other matters. *50 frequency conflicting findings regarding the which job responsibilities performed that she had perform LIRC's factual after her accident. could not job responsibilities findings regarding com- which plainant perform accident, her after could or could not physical accommodation, were based almost even with testimony complainant. completely See from the on ("Catlin majority op., ¶ she be able to 63 felt that would job part perform little were of her with most tasks that accommodation."). this, LIRC concludes no From of See "most" her duties. that Catlin could majority op., ¶ 63. disposi- ultimately problem The is that this 134. reliability finding, questionable is of
tive factual which applied credibility assessments, is then and is based on § interpretation of 111.34. new and incorrect to LIRC's majority telling tentative on even the seems It is stating "Crystal have ac- Lake could conclusion, disability by modifying ][ Catlin's commodated responsibilities. accommodation, hold, an we This is appears under the circumstances to be reasonable Majority op., purview of the WFEA." and within the added). (emphasis ¶ 78 interpretation of 111.34 if Even LIRC's solely his correct, based assessment
were the ALJ theory adoption law, upon but Lake's findings that Catlin could that the duties also on his "regularly." do she used to were ones not now the ALJ to with Therefore, needed to consult LIRC upon it reached a different which the basis determine
261
Carpet
on
factual conclusion
this matter.10 See Hermax
LIRC,
611,
v.
220
2d
Marts
662
N.W.2d
(Ct.
1998);
App.
LIRC,
Hoell v.
603, 614,
Wis. 2d
(Ct.
1994).
App.
Again,
have each relied on from happen sister, mother and who to be two of the three employees department, other in the wholesale who they "pick up claimed that could the slack" and cover Majority op., ¶ Catlin's as duties needed. The credibility of these statements also is at issue. example As but one testimony of Catlin's that under very mines "not frequently" finding the following: *51 you cutting [ATTORNEYGROISS]:Now indicated ... that the of responsibility, you say you the cheese was a cutter's didn't— you cheese, rarely you upon yourself to had cut but took it that; do is that correct? [CATLIN]:Yes. you're talking cutting [GROISS]: And when about this —this—this cheese, you say ''rarely,11you cutting
of the when would be cheese week, during you not, several times course would as a your job normal course function? several, [CATLIN]:Not no. What,
[GROISS]: once a week? Youhave no answer? question
[CATLIN]:It's a hard answer. you're always doing [GROISS]: And that's because these various functions; is correct? get busy, yeah. [CATLIN]:If we always being [GROISS]:You're asked fill in this instance and do jobs; these various correct? [CATLIN]:Yeah. findings, me, un- seems to are These it credibility
doubtedly Therefore, assessments. on based permissible disagree to reach for LIRC it was I having with the conferred conclusions without factual ultimately judge, re- LIRC law whom administrative remanded so minimum, should be At a this case versed. required with the ALJ consult that LIRC can be why. law and its administrative LIRC to determine regard- counterpart reached two different assessments ing and could Catlin could nature duties was based if ALJ's conclusion to determine do and merely adoption rule of a different than on more law. that JUSTICES am to state I authorized join dis- SYKES and DIANE S. E WILCOX
JON sent.