Target Stores v. Labor and Industry Review Com'n
| Decision Date | 08 January 1998 |
| Docket Number | No. 97-1253,97-1253 |
| Citation | 576 N.W.2d 545,217 Wis.2d 1 |
| Parties | , 11 NDLR P 297 TARGET STORES, a division of Dayton Hudson Corporation, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION and Mary Crivello, Respondents-Respondents. |
| Court | Wisconsin Court of Appeals |
On behalf of the petitioner-appellant, the cause was submitted on the briefs of John M. Loomis and Katherine L. Williams of Beck, Chaet, Loomis, Molony & Bamberger, S.C. of Milwaukee.
On behalf of the respondent-respondent, Labor and Industry Review Commission, the cause was submitted on the brief of James E. Doyle, Attorney General, and David C. Rice, Assistant Attorney General.
On behalf of the respondent-respondent, Mary Crivello, the cause was submitted on the brief of Christe L. McKittrick of McKittrick Law Office of Evansville.
Before DYKMAN, P.J., and VERGERONT and DEININGER, JJ.
Target Stores appeals from an order affirming the decision of the Labor and Industry Review Commission (LIRC) that Target violated the Wisconsin Fair Employment Act (WFEA) by unreasonably refusing to accommodate the handicap of Mary Crivello. Target contends that LIRC's finding that Target was in a position to know what accommodation Crivello needed is unsupported by substantial evidence and that LIRC erroneously
interpreted § 111.34(1)(b), STATS., 1 in reaching its conclusion that Target had [217 Wis.2d 4] unreasonably refused to accommodate Crivello's handicap. We hold that LIRC's findings are supported by substantial evidence and that LIRC properly interpreted § 111.34(1)(b). We therefore affirm.
We take our factual summary from the findings of the Administrative Law Judge (ALJ), which were adopted by LIRC. 2 Crivello began her employment at a Target store in 1979 as a cashier and subsequently became a cash counter. Her duties included counting money from the cash registers of twenty-two Target stores and recording these, encoding the checks, balancing the money against cash register receipts and preparing bank deposits. Her work hours were from 7:30 a.m. until 3:00 p.m., but she sometimes stayed as late as 4:00 p.m. if the workload or the number of interruptions during the day demanded it. She performed her duties alone, in the cash office, which, for security purposes, was locked from the outside. She was monitored by a video camera and, unaware to Crivello, the cash office could also observe her through a security blind.
In August 1990, Crivello received a Phase I disciplinary warning for the minor offense of "loafing"--sleeping on the job. 3 She had no recollection of dozing off and assumed a cough medicine she was taking caused the drowsiness. On March 4, 1992, Crivello received another Phase I warning for " loafing" because she was observed dozing off while on the job. She stated that she had no recollection of sleeping on the job. Management suggested she see a doctor and she did, making an appointment with her family physician for March 10. After performing examinations and tests, he referred her on March 17 to a pulmonary specialist, Dr. Schachter, to be tested for a sleeping disorder.
On March 25, 1992, Crivello received a Phase II warning for dozing off on the job again. This occurred while she was waiting to see Dr. Schachter since his first available appointment was April 10. When Target gave her this warning, management made suggestions how Crivello might resolve the sleeping problem, such as by getting out of the cash office more often during her breaks, taking a leave of absence, or working in another position such as head cashier. Crivello responded that she liked her job and did not want to change anything.
After some tests, Dr. Schachter diagnosed Crivello as having obstructive sleep apnea and advised her of this shortly after April 14. Sleep apnea, frequently caused by obesity, is marked by an obstruction of the upper airway that interferes with sleeping at night and causes the individual to uncontrollably doze off during the day. Dr. Schachter decided to first treat Crivello with a nasal inhaler and antihistamine to rule out hay fever as a cause. He told her that if that did not resolve the problem within one month, he would put her on a nasal CPAP, a mask worn at night, connected to a machine. 4 According Shortly after Crivello met with Dr. Schachter, she told Target of the diagnosis. She explained she was on the inhaler and if that did not work, she would be put on the nasal CPAP machine. Target requested verification. On May 1, Crivello provided Kelly Moriarity, personnel manager, with a copy of the April 27, 1992 letter Dr. Schachter wrote to Crivello's family physician. This letter explained the diagnosis, opining that the most likely cause was Crivello's obesity; that he was treating her with antihistamines and nasal steroids to make sure that the nasal obstruction was not precipitating the obstructive sleep apnea; that if her condition did not improve he would be happy to see her again and would place her on the nasal CPAP; and that he had advised her to lose weight. Crivello told Moriarity that if she needed more information, she could call Dr. Schachter directly. Moriarity asked Crivello to explain sleep apnea to her and asked whether she had any work restrictions or whether there was anything Target could do for her at work. Crivello said there was not. Target personnel testified that they did not call Dr. Schachter because there were no work restrictions in the letter, which is what normally prompts a call to the treating physician.
to Dr. Schachter, the majority of patients who use this device find relief from their symptoms, and, if it works, it works by the next morning.
Crivello's annual performance evaluation conducted on April 19, 1992, was overall satisfactory, the same rating she received the previous year. The evaluation indicated there were some encoding errors that could be eliminated if she "makes an attempt to treat her job as a new challenge daily," but that was not attributed to dozing off on the job. The evaluation indicated she was "doing much better with leaving by 3 p.m."
Crivello began using the inhaler but with no results. On May 24, 1992, Crivello was again observed dozing off on the job. After a management team meeting, Target decided to terminate her employment. According to Sue Running, assistant store manager, the team considered Dr. Schachter's letter and that there was another treatment option that Crivello had not yet tried as "mitigating circumstances," but decided to terminate her employment nonetheless.
In July 1992, Crivello began using the nasal CPAP machine and, as a result, her hyper somnolence virtually disappeared. Soon after, Crivello filed a complaint with the Equal Rights Division (ERD) claiming that Target discriminated against her because of her handicap, sleep apnea. After an initial finding of probable cause, a hearing before the ALJ resulted in a decision that Crivello was unable to perform her job without reasonable accommodation and that Target offered her reasonable accommodation, which Crivello declined. LIRC accepted the ALJ's finding of fact but reversed the decision, concluding that Target had refused to reasonably accommodate Crivello's handicap. Target sought judicial review of that decision and the circuit court vacated and remanded it for further consideration by LIRC, concluding that LIRC had impermissibly considered whether Target could have accommodated Crivello, instead of whether Target refused to accommodate her.
Upon remand, LIRC again concluded that Target had refused to reasonably accommodate Crivello's handicap. LIRC found that Target knew about Crivello's handicap, was aware of how it affected her job performance, knew that her sleeping on the job was beyond her control and knew that she was undergoing treatment for it. Under these circumstances, LIRC concluded the specific accommodation that Crivello needed was "clemency and forbearance"--that Target refrain from firing her for "loafing" the next time it spotted her dozing off.
LIRC decided that Target's failure to do that, but instead to fire her for "loafing" on the very next occasion she was spotted dozing off, constituted a refusal to provide a reasonable accommodation. LIRC explained that it interpreted "refusal" in § 111.34(1)(b), STATS., to not necessarily require that the employee first make a request or suggestion; rather "refusal" meant that the employer declined to do something either requested or required by law. LIRC also decided that the accommodation--of permitting the status quo to continue on what would, in all likelihood be a short-term basis given that she was actively LIRC's decision was affirmed by the circuit court, and this appeal followed.
undergoing treatment--would [217 Wis.2d 9] not have posed an undue hardship on Target.
The complainant in a handicap discrimination case must show that: (1) he or she is handicapped within the meaning of the WFEA, 5 and that (2) the employer took one of the enumerated actions 6 on the basis of handicap. See Racine Unified School Dist. v. LIRC, 164 Wis.2d 567, 594, 476 N.W.2d 707, 717 (Ct.App.1991). The employer then has the burden of proving a defense under § 111.34, STATS. See id. Under § 111.34(2)(a) it is not a violation of the WFEA to take an employment action based on an individual's handicap "if the handicap is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment....." However, if an employer refuses to reasonably accommodate an employee's (or prospective employee's) handicap and is unable to demonstrate that the accommodation would pose a hardship, then the employer violates the WFEA. Section 111.34(1)(b). Reading the two paragraphs of § 111.34 together, once the employee has met the first two showings, the...
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