Crystal Lake Cheese Factory v. LIRC, 02-0815.

Citation664 N.W.2d 651,2003 WI 106,264 Wis.2d 200
Decision Date11 July 2003
Docket NumberNo. 02-0815.,02-0815.
PartiesCRYSTAL LAKE CHEESE FACTORY, Petitioner-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION and Susan Catlin, Respondents-Respondents.
CourtUnited States State Supreme Court of Wisconsin

For the petitioner-appellant-petitioner there were briefs by Robert H. Duffy, Sean M. Scullen, and Quarles & Brady LLP, Milwaukee, and oral argument by Robert H. Duffy.

For the respondent-respondent, Labor and Industry Review Commission, the cause was argued by David C. Rice, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

For the respondent-respondent, Susan Catlin, there was a brief by Monica M. Murphy and the Wisconsin Coalition for Advocacy, Milwaukee, and oral argument by Monica M. Murphy.

An amicus curiae brief was filed by Melissa A. Cherney and Chris Galinat, Madison, on behalf of the Wisconsin Education Association Council.

An amicus curiae brief was filed by Rebecca L. Salawdeh and Urban Taylor & Stawski, Ltd., Milwaukee; Patrick O. Patterson and Law Office of Patrick O. Patterson, S.C., Fox Point; and Patricia A. Lauten and The Schroeder Group, S.C., Waukesha, on behalf of the Survival Coalition of Wisconsin.

An amicus curiae brief was filed by Francis X. Sullivan, William C. Williams, and Bell, Gierhart & Moore, S.C., Madison, on behalf of the Wisconsin Cheese Makers Associations, Inc., and Wisconsin Manufacturers and Commerce, Inc.

An amicus curiae brief was filed by Paul A. Kinne, Madison, on behalf of the Wisconsin Academy of Trial Lawyers.


This is a review of a decision of the Court of Appeals, District III,1 which affirmed an order of the circuit court of Barron County, the Honorable James C. Eaton presiding. The circuit court affirmed a decision of the State of Wisconsin Labor and Industry Review Commission (LIRC), which reversed an order of Administrative Law Judge (ALJ) Gary Olstad. LIRC determined that Susan Catlin (Catlin) was an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31-.395 (1999-2000),2 and that Crystal Lake Cheese Factory had discriminated against her based on her disability within the meaning of the WFEA. LIRC found that Crystal Lake's refusal to modify Catlin's job duties to exempt her from performing the heaviest physical tasks, and to make physical modifications to the work place, constituted the denial of a reasonable accommodation, which it could have provided without hardship.

¶ 2. We are presented with the following issues: (1) whether LIRC reasonably interpreted Wis. Stat. § 111.34(1)(b)3 and § 111.34(2)(a)4 of the WFEA, when it found there was a reasonable accommodation Crystal Lake could have provided its former employee, Catlin, without hardship; (2) whether Crystal Lake was denied due process by LIRC's failure to consult with the administrative law judge; (3) whether there was substantial and credible evidence to support the factual findings made by LIRC, upon which it based its decision that there was a reasonable accommodation Crystal Lake could have provided Catlin, without hardship, within the provisions of Wis. Stat. § 111.34(1)(b) and § 111.34(2)(a).

¶ 3. We affirm the decision of the court of appeals. Accordingly, we hold that requiring Crystal Lake to modify the job duties of Catlin and make physical modifications to the workplace was not unreasonable. With such reasonable accommodations, she would have the ability to undertake, adequately, her job-related responsibilities.

¶ 4. Next, we hold that Crystal Lake was not denied due process when LIRC, prior to reversing the ALJ's holding, failed to consult with the ALJ. We hold that since LIRC's findings did not hinge on issues of witness credibility, LIRC was not required to confer with the ALJ, and that there was therefore no violation of Crystal Lake's due process rights.

¶ 5. Finally, we hold that there was substantial and credible evidence in the record to justify LIRC's findings. There was substantial evidence to show that Crystal Lake could have made reasonable accommodations for Catlin, and Crystal Lake has failed to meet its burden of establishing that such reasonable accommodations for Catlin would create hardship on it.


¶ 6. In August 1995 Catlin was hired by the Crystal Lake Cheese Factory to work in its wholesale department. The wholesale department consisted of four positions: department head, cheese cutter, cryovacer (shrink-wrapping or bagging and sealing the cheese), and labeler. The main duties of the wholesale department were to cut cheese into specified quantities and sizes according to orders. The cheese was then packaged and sealed, labeled, and boxed for shipping. Catlin was initially hired as a cheese cutter, but was later promoted to department head of the four-person department.

¶ 7. A typical day for Catlin started with her making calculations concerning the weight of the different cheeses that had to be cut, based on the orders. This took about an hour. Next, she made up labels and put them on the boxes that the orders went into. She would pull the boxes from the back, make the boxes up and put the labels on them. Meanwhile, the cutter would be cutting the cheese and placing it on the table. After the cheese was placed on the table, it was bagged and cryovaced. The cheese was bagged, sealed, and put in a basket. The basket then had to be dipped in a pot of hot water. The packages of cheese were then dried off and labeled, weighed on a scale, priced, and boxed.

¶ 8. All four workers in Crystal Lake's wholesale department were cross-trained in all four positions within the department, and all were capable of assisting one another when an employee fell behind or when the department was busier than usual. As the department head, Catlin was required to gather orders and create an order list specifying the sizes and types of cheese that needed to be cut for that day. In addition to other administrative duties, Catlin was required to weigh, label, and box the cheese. She would also price boxes and packages, assist in the assembling of boxes, place the packages on pallets, and move them into the cooler for pickup. Catlin also assisted the other members of her department with their duties, as needed, to help control the flow of work.

¶ 9. In November 1996 Catlin was involved in a non-work related automobile accident that left her a quadriplegic, though she eventually regained partial use of both of her arms. She is now required to use a wheelchair to move around. During her hospitalization and ensuing rehabilitation period, Catlin filed for and received full disability benefits.

¶ 10. In September 1997 Catlin decided that she was ready to return to work, so she contacted Tony Curella (Curella), the president of Crystal Lake, to inquire about the circumstances of her resuming her position as department head. Crystal Lake subsequently hired David Johnson (Johnson), a management consultant of Genex Services, to determine what types of accommodations would be needed in order to allow a person confined to a wheelchair to perform the duties Catlin's position required. Curella had told Johnson that the department head had to be able to perform all of the functions in the wholesale department. Also, no one from Crystal Lake ever gave Johnson any information about Catlin, other than that she used a wheelchair. Ultimately, Johnson found that Catlin could not have been reasonably accommodated, as a person with Catlin's disability would be unable to perform all the tasks required of her as the department head (i.e., she was unable to perform all the functions of all four positions in the wholesale department). More specifically, Johnson noted that Catlin would have difficulty pulling and stocking inventory because of weight and the height of the storage area—up to seven feet above the floor. Crystal Lake therefore concluded, based on the report from Johnson, that it could make no reasonable accommodations for Catlin.


¶ 11. In October 1999 Catlin asked Crystal Lake to reconsider its decision, and in the meantime, she hired her own expert, Jeffery Annis (Annis) of the UW-Stout Assistive Technology and Assessment Center, to determine the feasibility of her returning to work as department head. At the time of this assessment, the wholesale department had been eliminated and Catlin's job no longer existed. Regardless, the assessment initiated by Catlin found that Catlin could have been accommodated, if certain physical changes had been made in the workplace, and if her job had been modified so that she would not have been required to perform those physical aspects of her job that she was no longer able to perform.


¶ 12. Like Johnson, Annis found that Catlin would be unable to perform some of the duties of her position that required climbing, lifting, or performance in a standing position. For example, she could not lift 40-pound blocks of cheese or reach cheese stored on a high shelf. Nevertheless, the assessment stated that she was still capable of performing most of her job-related duties. Due to the inability to modify some of the above job duties, the assessment suggested that an easier way to accommodate Catlin would be to make her job more clerical, and eliminate many of the physical duties. The assessment recommended that Catlin's job duties be modified so that as a lead person she need do only the paperwork and final packaging, along with filling out invoices, receipts, and packing lists. Both before Catlin's accident and at the time she attempted to return to work, her mother and her sister were employed in the wholesale department as part of the same team that Catlin led.


¶ 13. When Catlin realized that she would not be allowed to resume her position as the department head at Crystal Lake Cheese Factory, she filed a...

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