Stoughton Trailers, Inc. v. Lirc, 2004AP1550.

Citation735 N.W.2d 477,2007 WI 105
Decision Date17 July 2007
Docket NumberNo. 2004AP1550.,2004AP1550.
PartiesSTOUGHTON TRAILERS, INC., Petitioner-Appellant-Petitioner, v. LABOR AND INDUSTRY REVIEW COMMISSION and Douglas Scott Geen, Respondents-Respondents.
CourtUnited States State Supreme Court of Wisconsin
735 N.W.2d 477
2007 WI 105
STOUGHTON TRAILERS, INC., Petitioner-Appellant-Petitioner,
LABOR AND INDUSTRY REVIEW COMMISSION and Douglas Scott Geen, Respondents-Respondents.
No. 2004AP1550.
Supreme Court of Wisconsin.
Argued March 7, 2007.
Decided July 17, 2007.

[735 N.W.2d 480]

For the petitioner-appellant-petitioner there were briefs by Amy O. Bruchs, Scott C. Baumbach, and Michael Best & Friedrich L.L.P., Madison, and oral argument by Amy O. Bruchs.

For the respondents-respondents Labor and Industry Review Commission, there were briefs by David C. Rice, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, and oral argument by David C. Rice.

For the respondents-respondents Douglas Scott Geen, there were briefs by Victor M. Arellano, John C. Carlson, Jr., Matthew P. White, and Lawton & Cates, S.C., Madison, and oral argument by John C. Carlson, Jr.

An amicus curiae brief was filed by Monica Murphy, Milwaukee, on behalf of the Disability Rights of Wisconsin.

An amicus curiae brief was filed by Laura A. Lindner, C. Ann Martin, and Lindner & Marsack, S.C., Milwaukee, on behalf of the Wisconsin Manufacturers & Commerce, Inc., there was oral argument by Laura Lindner.

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


Stoughton Trailers, Inc. ("Stoughton") seeks review of a published decision of the court of appeals1 affirming a decision of the Labor and Industry Review Commission ("LIRC"), which concluded that Stoughton refused to reasonably accommodate Douglas Scott Geen's ("Geen") disability, migraine headaches, within the meaning of Wis. Stat. § 111.34(1)(b) (2005-06),2 and terminated Geen because of his disability within the meaning of Wis. Stat. §§ 111.322 and 111.34.

¶ 2 This case involves interpretation of the Wisconsin Fair Employment Act ("WFEA") and review of an agency determination. Thus, our authority in this case is governed by: (1) the will of the legislature

735 N.W.2d 481

as expressed in the language of the WFEA, and (2) the appropriate level of deference accorded to a determination of the agency charged by the legislature with administrating the WFEA.

¶ 3 Stoughton terminated Geen's employment after it determined that he accumulated 6.5 absences or "occurrences" under Stoughton's no-fault attendance policy, exceeding the policy's limit of six "occurrences" in a prescribed time period. Two of these "occurrences" were caused by Geen's migraine headaches, while the remaining "occurrences" were unrelated to Geen's disability.

¶ 4 LIRC concluded that Stoughton terminated Geen because of his disability within the meaning of the WFEA, holding that the two "occurrences" caused by Geen's disability were sufficient to conclude that the termination was because of disability. LIRC further concluded that Stoughton did not reasonably accommodate Geen, in that it failed to give him sufficient time to submit documentation to avoid being assessed an "occurrence" under its attendance policy, and it failed to exercise "clemency and forbearance" when it refused to temporarily tolerate the absences that were caused by his disability to allow medical intervention to take its course and potentially resolve the problem of Geen's absences. The circuit court and court of appeals affirmed LIRC on both issues.

¶ 5 We conclude a more reasonable basis for LIRC's decision exists than the one adopted by LIRC. To wit, we note that Stoughton did not follow its own no-fault attendance policy in terminating Geen when it failed to provide him with 15 days as allowed under the policy to submit documentation to avoid being assessed an "occurrence." Because Stoughton did not follow its own no-fault attendance policy, it may not claim whatever protection that policy may provide in its termination of Geen. Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably based on the unique circumstances surrounding that termination. Based on these circumstances, we conclude that LIRC's determination that Stoughton terminated Geen because of his disability was reasonable. We therefore do not address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the WFEA when some of the absences were caused by disability and others were not.3

¶ 6 We further conclude that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen. Additionally, we conclude that its ordered remedy was reasonable. Accordingly, we affirm.


¶ 7 The facts relevant to the issues presented on review are taken from LIRC's

735 N.W.2d 482

decision of September 12, 2003, and are undisputed. Stoughton, a manufacturer of semi-trailers, has a no-fault attendance policy for its employees. The policy includes a point-based system under which employees are assigned "occurrences" for tardiness and absences, subject to limited exceptions, including "[a]bsences meeting State and Federal Family and Medical Leave [FMLA] laws." An employee is terminated under the policy if he or she accumulates six "occurrences."

¶ 8 Under Stoughton's no-fault attendance policy, an employee who is absent from work due to a medical condition is provided a standard letter with a Family and Medical Leave Act ("FMLA") form to complete and return to the human resources department. If the employee returns the completed form, he or she will not be assessed an "occurrence." However, if the employee does not return the certification form within 15 days (but does submit other proof that their absence was for a medical condition), the employee is assessed one "occurrence," regardless of the duration of the leave. In this case, Geen submitted a medical excuse for a mid-December 1996 to early January 1997 extended absence but not the FMLA form and thus was assessed one "occurrence."

¶ 9 Geen worked for Stoughton for approximately eight years, until January 31, 1997, when he was fired for exceeding the number of "occurrences" allowed under the attendance policy.

¶ 10 As of December 11, 1996, Geen had accumulated 4.5 "occurrences" under the policy, none of which were due to disability. From December 12, 1996, through January 7, 1997, Geen was absent from work because of severe headaches. Geen sought medical attention at least three times during this period and was diagnosed as suffering from migraine headaches and depression. Geen was prescribed the drug Paxil for his depression and Midrin for his migraines. This leave of absence constituted Geen's first disability-related "occurrence" under the attendance policy, bringing his total to 5.5 "occurrences."

¶ 11 Geen returned to work on January 8, 1997. On Friday, January 24, 1997, Geen called in before his shift and said that he could not work because he had a migraine. Geen called in sick again with migraines on the following Monday and Tuesday mornings, January 27 and 28. When Geen returned to work on January 29, 1997, Stoughton's human resource administrator, Tammy Droessler ("Droessler"), provided Geen with a copy of a standard letter noting that Geen had been absent from work since the previous Friday. The letter explained the need to submit a completed FMLA form within 15 days of the date of the letter if Geen was to avoid having the absence counted as an "occurrence" under Stoughton's no-fault attendance policy.4 Droessler also reminded Geen orally that he would need to submit the FMLA form to avoid being assessed an "occurrence."

¶ 12 On January 30, 1997, Geen was examined by his physician, Dr. M.A. Hansen, who concluded that Geen showed "textbook examples of migraine headaches, which has increased in frequency and intensity since beginning a prescription of Paxil." Dr. Hansen took Geen off Paxil and again prescribed Midrin for his headaches. Dr. Hansen scheduled a follow-up exam for Geen in one week. Dr. Hansen

735 N.W.2d 483

provided Geen with a note stating that he was being evaluated for migraines. Later that day, Geen gave the note to Droessler, who told Geen that he needed to bring in a doctor's note stating he could return to work without restrictions.

¶ 13 The next day, January 31, 1997, Geen gave Droessler a second note from Dr. Hansen indicating he had been unable to work on January 27 and 28 because of migraines but was now cleared to work without restrictions. The note did not address Geen's absence on January 24. After reviewing the note, Droessler informed Geen he was being discharged because the doctor's note did not excuse him for January 24, causing him to accrue an "occurrence" for that date, which brought his total number of "occurrences" to 6.5. Geen was given two days from the date he received the standard letter (January 29) to the date of his termination (January 31) and not 15 days as provided under Stoughton's no-fault termination policy to submit the FMLA form to avoid being assessed an "occurrence."

¶ 14 Geen indicated that his doctor needed more time to evaluate him, and that his doctor would be unavailable to provide additional medical documentation for at least a week. Droessler told Geen that he had three working days from Friday, January 31 to write a letter to the company's Attendance Review Board ("Board") in order to try to reverse the assessment of the "occurrence." She said that he could submit additional medical documentation to the Board.5

¶ 15 By letter dated February 4, 1997, Geen timely appealed his termination to the Board. Geen indicated his doctor was currently evaluating his headaches and had indicated that he would perform additional tests and change Geen's medication if the headaches persisted. Geen did not submit any additional medical documentation with his letter. On February 21, 1997, the Board rejected Geen's appeal.

¶ 16 On February 24, 1997, Geen filed a...

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