Hutchinson Technology, Inc. v. LIRC

• Decision Date: 30 June 2004
• Docket Number: No. 02-3328.,02-3328.
• Parties: HUTCHINSON TECHNOLOGY, INC., Petitioner-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION and Susan Roytek, Respondents-Respondents.
• Court: Wisconsin Supreme Court

273 Wis.2d 394

2004 WI 90

682 N.W.2d 343

HUTCHINSON TECHNOLOGY, INC., Petitioner-Appellant-Petitioner,¹ v. LABOR AND INDUSTRY REVIEW COMMISSION and Susan Roytek, Respondents-Respondents.

No. 02-3328.

Supreme Court of Wisconsin.

Oral argument April 27, 2004.

Decided June 30, 2004.

For the petitioner-appellant-petitioner there were briefs by Carol S. Dittmar, Teresa E. O'Halloran and Garvey, Anderson, Johnson, Geraci & Mirr, S.C., Eau Claire, and oral argument by Carol S. Dittmar.

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 Roytek there was a brief by Rose M. Allen, Lisa A. Wiebusch and Mudge, Porter, Lundeen & Seguin, S.C., Hudson, and oral argument by Rose M. Allen.

An amicus curiae brief was filed by Timothy G. Costello, Brian M. Radloff and Krukowski & Costello, S.C., Milwaukee, on behalf of Wisconsin Manufacturers & Commerce, Inc., and oral argument by Timothy G. Costello.

An amicus curiae brief was filed by Monica Murphy and Wisconsin Coalition for Advocacy, Milwaukee, on behalf of Wisconsin Coalition for Advocacy.

¶ 1. N. PATRICK CROOKS, J

Petitioner, Hutchinson Technology, Incorporated (HTI), seeks review of a court of appeals' decision, Hutchinson Technology, Inc. v. LIRC, No. 02-3328, unpublished slip op. (Wis. Ct. App. Sep. 18, 2003), affirming the decision of the Labor and Industry Review Commission (LIRC), which concluded that HTI discriminated against Susan Roytek (Roytek) on the basis of her disability. LIRC affirmed the decision by the administrative law judge and concluded that Roytek had a disability, as defined by the Wisconsin Fair Employment Act (WFEA), and that HTI failed to provide a reasonable accommodation that would have allowed her to continue her employment with HTI. The circuit court and the court of appeals affirmed LIRC's decision. ¶ 2. We conclude that Roytek is a person with a disability under the WFEA. Roytek met her initial burden of establishing the reasonableness of her proposed accommodations. HTI did not prove that it could not reasonably accommodate Roytek's disability, since it accommodated her disability for eight months. Moreover, HTI did not introduce any evidence that allowing Roytek to continue to work eight-hour shifts at HTI would cause hardship to the business. We are mindful that a business must have the right to set its own employment rules to encourage maximum productivity. We caution, however, that such rules do not exist in a vacuum, but must bend to the requirements of the WFEA. We, therefore, affirm the court of appeals' decision.

I

¶ 3. HTI is a Minnesota based corporation with a manufacturing plant located in Eau Claire, Wisconsin. The Eau Claire manufacturing plant produces suspension assemblies for computer hard disk drives. Since opening, the Eau Claire plant has used four crews to work rotating 12-hour shifts in its production facilities. HTI instituted the 12-hour shift model after studying production efficiency and determining employees' preferences. Employees generally work three days one week and four days the next, with every other weekend off. Thus, over the course of two weeks, an employee works seven 12-hour shifts totaling 84 hours. HTI has occasionally permitted an employee to work less than 12 hours per shift for a job assigned such hours, but these allowances have been temporary in nature.

¶ 4. Roytek began her employment as a production worker in HTI's photoetch department in June 1998. In the photoetch process, a pattern is photographically imprinted onto stainless steel sheets. The pattern is then etched with a chemical process, cleaned, inspected, sheared, and sent on to the next phase of processing. All of HTI's photoetch operators rotated into four areas during their shifts: inspection, shearing, bookwork, and bay. Each photoetch operator had a primary position in one of these four areas, and the majority of each shift was spent doing the work of such position. In inspection, an operator was required visually to inspect chemically etched steel sheets. Although the job description of the inspection position stated that it required long periods of sitting, adjustable tables were available, in order to permit standing inspection. The shearing position required the feeding of steel sheets into a machine and had to be performed while standing. The bookwork position was a desk job, and a person could stand or sit to perform such tasks. The requirements of the bay position varied. Roytek primarily worked in the inspection position and, at the time she was hired, understood that she would be required to work 12-hour days.

¶ 5. In September 1998, Roytek's personal physician, Paul M. Ippel, M.D. (Ippel), diagnosed Roytek with lower back pain² and concluded that she was temporarily unable to work. Roytek returned to work in November 1998, but with some restrictions. Roytek was limited to working six-hour days and prohibited from lifting anything over 20 pounds. In January 1999, Roytek increased her shifts to eight-hour days. At HTI's request Tuenis Zondag, M.D. (Zondag), performed a fitness for work evaluation on Roytek in August 1999. Based on the results of the evaluation, Roytek could work steadily on an eight-hour shift, five days per week. However, Roytek was incapable of working 12-hour shifts on a consistent basis. Roytek's last day of work was August 10, 1999, and she went on short-term disability leave beginning August 13, 1999. HTI terminated Roytek's employment on September 11, 1999, when her short-term disability pay ran out.

¶ 6. Roytek filed a complaint with the Equal Rights Division of the Department of Workforce Development (Department), alleging that HTI had discriminated against her on the basis of disability. After Roytek filed her complaint, Ippel informed the Department of further restrictions on Roytek's ability to work. Such restrictions included no sitting for longer than two hours, no static standing, no lifting more than 20 pounds, and no workdays longer than eight hours. While some testimony was presented by HTI before the Administrative Law Judge (ALJ) John L. Brown, presiding at the Department hearing on what these restrictions would mean in terms of performance of certain job functions, the determinations by the ALJ, and by LIRC, focused on the eight-hour day versus the 12-hour day issue.³ HTI closed its photoetch department at the Eau Claire plant on June 17, 2000.

¶ 7. The ALJ concluded that Roytek had a disability, and that HTI had terminated her employment due to such disability. The ALJ concluded that, although HTI had demonstrated that Roytek's disability prevented her from performing certain job functions, HTI did not demonstrate that it attempted reasonably to accommodate her disability or that such accommodation would impose a hardship upon it. The ALJ concluded that HTI's evidence was too speculative to conclude that it had met its burden to prove hardship. Although HTI expressed fear that other employees would request reduced hours, that her fellow employees would experience a decline in morale, and that production would suffer, the ALJ concluded that HTI had presented no evidence that any of these scenarios had actually occurred. Thus, the ALJ reasoned that HTI violated the WFEA by terminating Roytek's employment. The ALJ then ordered HTI to reinstate Roytek to a position comparable to the position she had held in the photoetch department, unless Roytek stated that she did not want to be reinstated. The ALJ also ordered HTI to make Roytek whole for the losses of pay and benefits she suffered as a result of her termination.

¶ 8. HTI appealed the ALJ's decision to LIRC. LIRC affirmed the ALJ's decision.⁴ HTI sought review of LIRC's decision in circuit court. The Eau Claire County Circuit Court, Judge Benjamin D. Proctor presiding, affirmed LIRC's decision. The court concluded that HTI failed to meet its burden with respect to reasonable accommodation and hardship. HTI appealed. ¶ 9. In an unpublished per curiam opinion, Court of Appeals' Judges David G. Deininger, Margaret J. Vergeront, and Paul Lundsten affirmed the circuit court's judgment, stating that Roytek had a disability under Wisconsin's interpretation of "disability" as set forth in Wis. Stat. § 111.32(8)(a) (2001-02).⁵ The court further concluded that HTI did not proffer sufficient evidence to support its contention that accommodating Roytek's disability would impose a hardship upon it. Finally, the court concluded that HTI waived the issue of whether Roytek should be reinstated and receive back pay, since it did not raise such issues before LIRC.⁶

II

¶ 10. We now consider whether Roytek was an individual with a disability under the WFEA. The issue of whether Roytek was disabled under the WFEA presents a question of law. La Crosse Police Comm'n v.> LIRC, 139 Wis. 2d 740, 755, 407 N.W.2d 510 (1987).⁷ We must decide whether there was a rational basis for LIRC's conclusion that Roytek was an individual with a disability.⁸Id. at 756.

¶ 11. HTI contends that Roytek is not an individual with a disability under Wis. Stat. § 111.32(8). HTI asserts that Roytek's condition does not make achievement unusually difficult, as set forth in § 111.32(8). HTI claims that achievement is unusually difficult when there is "a substantial limitation on life's normal functions or substantial limitation on a major life activity." Id. at 761. HTI maintains that an employee must be restricted from a vast array of jobs in order to be deemed substantially limited in the major life activity of working. Simply because Roytek is limited in the number of hours she may work, HTI contends, does not mean that she has a disability under the WFEA. HTI asserts that La Crosse interpreted the "limits the capacity to work" language of § 111.32(8) too broadly,...