Geen v. LABOR & INDUSTRY REVIEW COM'N,

• Decision Date: 10 October 2002
• Docket Number: No. 01-2713.,01-2713.
• Citation: 2002 WI App 269,258 Wis.2d 498,654 N.W.2d 1
• Parties: Douglas Scott GEEN, Petitioner-Respondent, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent, STOUGHTON TRAILERS, INC., Respondent-Appellant.
• Court: Wisconsin Court of Appeals

258 Wis.2d 498

2002 WI App 269

654 N.W.2d 1

Douglas Scott GEEN, Petitioner-Respondent, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent, STOUGHTON TRAILERS, INC., Respondent-Appellant.¹

No. 01-2713.

Court of Appeals of Wisconsin.

Submitted on briefs March 14, 2002.

Decided October 10, 2002.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Amy O. Bruchs and Christine Cooney Mansour of Michael Best & Friedrich LLP, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Brett C. Petranech of Kelly & Petranech LLP, Madison. Before Vergeront, P.J., Roggensack and Deininger, JJ.

¶ 1. DEININGER, J.

Stoughton Trailers, Inc. appeals a circuit court order which reversed a determination by the Labor and Industry Review Commission that Stoughton did not discriminate against its employee, Douglas Geen. Stoughton terminated Geen's employment following a series of absences, the last two of which were disability-related. Stoughton claims the commission correctly determined, first, that Stoughton did not terminate Geen because of his disability; and second, that even if Stoughton did so, it had first attempted to reasonably accommodate Geen's disability.

¶ 2. We conclude the commission did not resolve the issue of whether Stoughton terminated Geen because of his disability, and further, the commission failed to consider applicable law (the federal Family and Medical Leave Act) in determining whether Stoughton reasonably accommodated Geen's disability. Accordingly, we modify the circuit court's order and direct that the matter be remanded to the commission for further proceedings consistent with this opinion.

BACKGROUND

¶ 3. Stoughton, a manufacturer of semi-trailers, has a "no fault" attendance policy. The policy mandates termination of any employee who accumulates six "occurrences," defined as any absence, early departure, or tardiness occurring on a scheduled workday. The policy excepts certain absences from being counted as "occurrences," including "[a]bsences meeting State and Federal Family and Medical Leave Laws."

¶ 4. Geen worked as an assembler at Stoughton. By early December 1996, Geen had accumulated 4.5 occurrences, none of which were disability-related. From mid-December 1996 through early January 1997, Geen was absent from work due to migraine headaches. During his absence, Stoughton sent Geen a letter that stated in part:

If you would like this medical leave to be considered as a family/medical leave, you must complete the attached Department of Labor Certification form and return it to the Stoughton Trailers Human Resources Department no later than 15 days from the date of this letter. If approved, you will not receive an occurrence for the portion of your leave that falls under the family/medical leave law.

¶ 5. The letter enclosed a certification form issued by the U.S. Department of Labor pursuant to the "Family and Medical Leave Act of 1993" (FMLA), a federal act² intended, among other things, "to entitle employees to take reasonable leave for medical reasons." 29 U.S.C. § 2601(b)(2). As summarized in the letter sent to Geen, federal FMLA regulations require employers to allow employees at least fifteen calendar days to provide medical certification to support FMLA leave, starting from the date of the employer's request for medical certification. 29 C.F.R. § 825.305(b).³

¶ 6. Upon returning to work in early January 1997, Geen gave Stoughton copies of several prescriptions as well as a note from his doctor stating that Geen had been treated for headaches and that he could return to work. However, Geen did not return the FMLA certification form. Under Stoughton's employment policy, if an employee verifies that an absence was illness-related but fails to return the FMLA certification form, Stoughton counts the absence as only one "occurrence," regardless of its actual length. Thus, Stoughton assessed Geen with one "occurrence" for his multiple-week absence, bringing his total to 5.5 occurrences.

¶ 7. Geen again suffered from migraine headaches from Friday, January 24, 1997 through Tuesday, January 28, 1997, missing a total of three workdays. On the morning of each workday, Geen telephoned Stoughton and reported that he could not work due to migraine headaches or doctor appointments related to these headaches. Upon his return to work on January 29, 1997, Geen informed Stoughton's human resources administrator that he needed medical leave for the absences related to his migraine headaches. The administrator responded by handing Geen a letter containing the same request for FMLA certification quoted above (see ¶ 4), as well as another FMLA certification form.

¶ 8. Over the next two days, Geen visited his doctor twice and provided Stoughton with doctor's notes stating that he was being evaluated for migraines, that he was unable to work for two days of his three-day absence,⁴ and that he could return to work without restrictions. Geen did not return the FMLA certification form, however. On January 31, 1997, Stoughton terminated Geen on the grounds that his medical documentation did not excuse him for one of the days of his late-January absence, causing his "occurrence" total to increase to 6.5, thereby exceeding the 6.0 occurrence maximum.⁵

¶ 9. Geen protested, claiming that his doctor had stated that, due to the difficulty of evaluating Geen's headaches and the press of business, he would be unable to provide additional documentation for at least a week. Stoughton responded by informing Geen that he could appeal his termination to Stoughton's Attendance Review Board by submitting a letter and any medical documentation to the board within three working days from his termination date. Geen timely submitted a letter explaining that he was being evaluated by a doctor for migraine headaches; however, he did not supply any medical documentation or the FMLA certification form. The board rejected Geen's appeal.

¶ 10. Geen subsequently filed a complaint with the Department of Workforce Development, Equal Rights Division, alleging that Stoughton had discriminated against him by terminating his employment because of his disability and failing to reasonably accommodate his disability. An administrative law judge ruled that: (1) Geen had a disability as defined under Wisconsin law; (2) Stoughton terminated Geen's employment "in part because of that disability"; and (3) Stoughton failed to reasonably accommodate his disability. The judge ordered Stoughton to reinstate Geen and to pay his back wages, costs, and attorney fees.

¶ 11. Stoughton appealed to the Labor and Industry Review Commission. The commission said in its decision that it was "reluctant to hold that the termination was `because of Geen's disability" because he had already accumulated 4.5 "occurrences" prior to his disability-related absences. Although it deemed whether Stoughton had fired Geen "because of" his disability a "serious question," the commission declined to answer it in light of its conclusion that Stoughton had, in any event, reasonably accommodated Geen's disability by providing Geen "with the opportunity to avoid being assessed `occurrences' for his disability-caused periods of absence by filling out FMLA leave paperwork."

¶ 12. Consistent with this analysis, the commission arrived at the following Conclusions of Law:

3. Complainant [Geen] is an individual with a disability within the meaning of Wis. Stat. § 111.32(8).

4. Complainant's disability (migraine headaches) was reasonably related to his ability to adequately undertake the job-related responsibilities of his employment with Respondent within the meaning of Wis. Stat. § 111.34(2)(a).

5. Respondent did not refuse to reasonably accommodate Complainant's disability within the meaning of Wis. Stat. § 111.34(1)(a).

6. Respondent did not discriminate against Complainant because of disability within the meaning of Wis. Stat. § 111.34 when it terminated his employment.

¶ 13. Geen sought judicial review of the commission's decision and order in Dane County Circuit Court. The circuit court affirmed Conclusions of Law Nos. 3 and 4, but reversed Nos. 5 and 6. The court based its reversal on its conclusion that Stoughton failed to reasonably accommodate Geen's disability because it terminated Geen prior to the end of the fifteen-day FMLA certification period. The circuit court remanded the case to the commission "with directions to implement the ALJ order."

¶ 14. Stoughton appeals the circuit court's order, asking that we reverse it and reinstate the commission's order dismissing Geen's complaint. Geen responds, seeking to preserve the trial court's order. The commission has not participated in the appeal.

ANALYSIS

[1]

¶ 15. Geen's claim of discrimination on account of disability involves three essential elements of proof. See Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 598, 476 N.W.2d 707 (Ct. App. 1991)

. First, Geen must establish that he has a disability within the meaning of Wisconsin's fair employment law.⁶

Id. at 598. Second, Geen must prove that Stoughton terminated him because of his disability. Id. at 601. Third, if Geen proves these two elements, the burden then shifts to Stoughton to justify the termination. Id. 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;⁷ or (2) any accommodation would have posed a hardship on its business. WIS. STAT. § 111.34(1)(b), (2)(a).

¶ 16. The parties have narrowed the issues through various concessions. Stoughton does not dispute that Geen's migraine headaches are a disability under Wisconsin's fair employment law, and Geen acknowledges that his disability was reasonably related to his ability to do his job. Additionally, Stoughton does not contend that a reasonable accommodation of Geen's...