774  Disability [formerly identified as handicap] discrimination

774.01 Generally

Employment as a Youth Counselor at Ethan Allen School, a type 1, maximum-security institution, involves a special duty of care for the safety of the general public. Youth counselors carry out security responsibilities and their roles are comparable to those of correctional officers employed at a prison. Wille v. DOC, 96-0086-PC-ER, 1/13/99 (appeal pending)

Respondent correctly relied on the specific medical restrictions imposed by complainant's medical condition, rather than on the name of the disabling condition, to determine whether to employ individuals in youth counselor positions. There was no general prohibition against employing disabled individuals in such positions, nor was there a prohibition against employing persons with certain identified medical conditions. Complainant's contention that there was no case-by-case evaluation of complainant's circumstances was rejected. Wille v. DOC, 96-0086-PC-ER, 1/13/99 (appeal pending)

Complainant failed to establish a hostile work environment based on his handicap where another newly arrived employe who was treated differently on a social basis already had 5 years of social relationships built up with some members of the work unit, where complainant was not invited to staff meetings because they were specifically called to deal with the ongoing training of the complainant, where there was nothing to suggest that a comment ("We take care of our own.") was in any way directed at the complainant, where a comment by complainant's supervisor which referred to the complainant as being on a different wavelength was made in the context of the supervisor's concerns relating to complainant's aptitude for the duties he had been assigned to perform, and where other actions by complainant's co-workers reflected inevitable frustration arising from the level of complainant's work performance. Stark v. DILHR, 90-0143-PC-ER, 9/9/94

In a handicap discrimination claim, evidence of complainant's employment after his termination could be relevant to the issue of complainant's ability to perform the duties of the position from which he was discharged and to the issue of accommodation, in terms of complainant's ability to perform other positions to which he could have transferred. Respondent's motion in limine was denied. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93

An objective standard is used to determine if the employer was correct in concluding that a handicapped employe is unable to effectively perform and that no accommodation is feasible. That the employer may have acted in good faith in assessing the handicapped employe's abilities is not a defense. Accordingly, evidence which postdates the personnel transaction which may have no relevance to the employer's intent when the employer made its assessment, may be admissible as relevant to the employe's capacity to perform and accommodation. Respondent's motion in limine was denied. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93

The first step in determining whether a handicap has been established is to determine whether there is a real or perceived impairment and, if so, whether it makes, or is perceived to make achievement unusually difficult or limits the capacity to work. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94

Complainant's problematic personality characteristics did not fall within the parameters of an actual or perceived handicap where his mental status was otherwise considered to be "well within the normal range." Merely because the enokiter contended complainant's condition would satisfy the criteria in §230.37(2), Stats., it does not follow that the condition constituted a perceived handicap. Where the personality characteristics did not fall within the meaning of the term "impairment," there was neither an actual nor a perceived handicap. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94

In terms of the second element of analysis, the determination of whether the complainant can perform the duties of the position has to refer to the duties of the position as currently constituted rather than after any modifications necessary to permit accommodation. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

A typical handicap discrimination case involves the following analysis: 1) whether the complainant is a handicapped individual; 2) whether the employer discriminated against the complainant because of the handicap; 3) whether the handicap is sufficiently related to the complainant's ability to adequately undertake the job responsibilities of his or her employment (a case-by-case evaluation) pursuant to §111.34(2)(b), Stats.; and 4) if a "sufficient relationship" was established in 3), whether the employer failed to reasonably accommodate the complainant's handicap. Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 2/11/88

There is a special duty of care associated with the safety of the general public that applies to employment in the prison setting. Conley v. DHSS, 84-0067-PC-ER, 6/29/87

774.02(1) Finding of probable cause

Probable cause on the basis of handicap or retaliation existed regarding respondent's conduct of providing incorrect information about complainant's appeal rights where the allegation was not addressed by respondent at hearing. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95

Probable cause was established as to a decision not to hire the appellant where there was little evidence supporting the decision of the physician who conducted the physical to set a 15 to 20 pound lifting restriction and a restriction against frequent bending, stooping or twisting. There was no indication on the record that the physician was aware, among other things, that the appellant was currently performing similar duties. Also, appellant's osteopath was of the opinion that no type of lifting restriction was indicated. Lauri v. DHSS, 87-0175-PC, 11/3/88

Respondent failed to show the complainant could not adequately undertake his job responsibilities where there were no observations or reports of complainant's actual job performance and where letters from complainant's physicians and from complainant himself, though seemingly inconsistent, were reasonably explained. Therefore, probable cause was found as to respondent's decision to place complainant on a leave of absence. The Commission concluded that complainant's subsequent pursuit of a worker's compensation claim of disability and an unemployment compensation claim where he asserted certain medical limitations on his capacity to work, was not inherently inconsistent with his discrimination complaint where he argued that he was capable of doing his job satisfactorily at the time of his leave of absence. Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87

Complainant, an asthmatic, established the causality element for purposes of a probable cause determination arising from his separation from employment. The complainant's asthmatic condition was exacerbated by complainant's exposure to mace and a further adverse reaction to other gases could be expected if he were to be exposed to them as was required by the training procedure. Hebert v. DHSS, 84-0233-PC, 84-0193-PC-ER, 10/l/86

Probable cause existed where respondent failed to even consider the appropriateness of safety equipment as a means of accommodating complainant's handicap of epilepsy, and where respondent acknowledged that special life jackets were available and would be a good safety measure in many instances. Giese v. DNR, 83-0100-PC-ER, 1/30/85

774.02(2) Finding of no probable cause

No probable cause on the basis of handicap or retaliation was found regarding respondent's requirement that he obtain a psychological evaluation and a situational assessment at respondent's expense, where respondent had incomplete information from complainant's physicians about complainant's ability to return to work at full performance and the accommodations needed. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95

No probable cause on the basis of handicap or retaliation was found regarding respondent's decisions that complainant could not return to his former position and to offer the complainant a position as a voluntary demotion, where the position to which teh complainant could demote was the only position available which fit the criteria noted in a psychologist's evaluation of complainant. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95

Respondent's hiring of complainant as part of a program for "slow learners" and assignment to him of least complex duties to which a lower productivity standard was applied, established that respondent aware of complainant's handicap. In view of expert testimony that complainant's mental impairment would not prevent him from performing duties of Library Services Assistant position once such duties were learned, his performance deficiencies, rather than his handicap, was the basis for his termination. Fischer v. UW-Madison, 84-0097-PC-ER, 7/22/92

Complainant, who had been employed as an Assistant State Public Defender, could not or would not adequately undertake the job-related responsibilities of his employment, based on his substantial problems with regard to his attendance, his aversion to working with certain clients, his accessibility and his reluctance to handle jury trials. Shevlin v. Office of Public Defender, 87-0101-PC-ER, 4/17/90

No probable cause was found with respect to the decisions to issue complainant a written reprimand, suspend him and discharge him, as well as to certain conditions of employment where complainant repeatedly called in sick, left work and ultimately failed to appear at work. Prior to the discharge, respondent was advised that the complainant was receiving treatment for alcohol problems and he was placed on a medical leave. When complainant failed to report back to work on the designated date, the respondent was not required by the FEA to extend the complainant's leave of absence if it had ascertained he was unable to work because of alcoholism, citing Squires v. LIRC, 97 Wis. 2d 648 (Court of Appeals, 1980). It was not a situation where the complainant was unable to contact his employer. Rose v. DOA, 85-0169-PC-ER, 7/27/88

No probable cause was found where complainant, who has uncorrected vision of 20/500 for both eyes, was ranked 36th following the written exam for Conservation Warden 1 which was too low a ranking to be considered for appointment under respondent's normal procedures. Complainant could only have been considered further if he had been certified under the Handicapped Expanded Certification (HEC) program but respondent rejected complainant for this program because it was determined he was not handicapped. Respondent could not be considered to have discriminated against the complainant because of his handicap when respondent had determined he was not handicapped under the HEC program. Wood v. DNR, 86-0002-PC-ER, 2/19/88

No probable cause was found as to complainant's discharge where complainant, who suffered from an organic mental disorder, did not perform his work properly, made threatening statements/gestures to co-workers, supervisors and non-employes, and had unexcused absences, where the complainant's handicap was reasonably related to his ability to carry out his responsibilities and respondent made an effort to accommodate his handicap. Brummond v. UW-Madison, 84-0185-PC-ER, 85-0031-PC-ER, 4/1/87

No probable cause was found with respect to the termination of the complainant's employment where complainant's job performance was erratic, the quality and quantity of her work was inconsistent and her judgment in the office was questionable. Kaufman v. UW-Madison, 84-0065-PC-ER, 8/6/86

No probable cause was found with respect to the termination of complainant's employment, where complainant, a probationary employe who was handicapped, missed four consecutive days of work after he was arrested, complainant could not say when be would be released from jail and return to work and where there was an immediate need to have someone perform the complainant's duties. No evidence was presented showing that complainant was treated differently than other probationary employes who missed several work days. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86

No discrimination was found where the complainant took a multiple choice exam and was certified for a number of program assistant positions but did not receive an appointment. The Commission noted that the hiring decisions were separate and independent and that there were legitimate reasons for each selection. Markham v. DHSS, 79-PC-ER-151, 2/9/82

No probable cause was found as to the decision not to select the complainant for a vacant permanent position of English teacher, where the successful candidate had a higher score on the questionnaire and complainant, who had been filling the position as an limited term employe, had an inferior job reference based on respondent's first-hand knowledge of complainant's work performance. Browne v. DHSS, 85-0072-PC-ER, 8/5/87

The complainant, who had an arrest record of which the respondent was aware, and who was discharged, failed to establish his job performance was satisfactory, where he did not complete his assigned work, was verbally abusive and threatening to both coworkers and supervisors, was threatening toward and made off-color remarks about members of the public with whom he came into contact and had unexcused absences/tardiness. Even if he had established a prima facie case, complainant failed to establish that the unsatisfactory work record was pretextual. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86

No probable cause existed with respect to respondent's decision to terminate the employment of complainant, an insulin dependent diabetic, where complainant had essentially abandoned his job and refused to return, complainant could safely perform his work with a minimum of risk to himself and to others and where respondent perceived complainant's physician to have indicated that complainant could work safely. Lueders v. DHSS, 84-0095-PC-ER, 5/29/86

No probable cause was found as to the respondent's decision not to select the complainant for vacant Building Maintenance Helper 2 positions where the interviewers did not know of complainant's handicap at the time they scored the complainant's interview and where each successful applicant had a higher score than the complainant and a more stable work record. Brummond v. UW-La Crosse, 84-0178-PC-ER, 10/10/85

No probable cause was found where, due to a handicapping condition of mental illness, the complainant was unable to adequately discharge the duties and responsibilities of his position of Building Construction Superintendent. Burnard v. DOA, 83-0040-PC-ER, 1/30/85

No probable cause was found as to allegations of discrimination based on color, handicap and race, where complainant's employment was terminated based on his unsatisfactory work performance due to consistent failures to meet deadlines for the completion of assignments. Johnson v. DHSS, 83-0032-PC-ER, 1/30/85

No probable cause was found where complainant, an alcoholic, was terminated primarily because of chronic absenteeism, tardiness, and low productivity, where respondent made extensive efforts to accommodate complainant's handicap via treatment programs and where complainant was terminated after the treatment program was unsuccessful and complainant refused to agree to change treatment programs or to alter the existing program. Burton v. DNR, 82-PC-ER-36, 8/31/83

No probable cause was found where just one of three persons comprising the interview panel for a vacant position was aware of complainant's handicap and where that person, who actually made the hiring decision, based the decision in large part on the rankings and comparisons by the other two panel members. In addition, complainant's answers to questions posed by the panel were inconsistent, at least in part, with the policies and responsibilities of the employing unit and there was no evidence in the record establishing that complainant was better qualified than the successful applicants. Bisbee v. DHSS, 82-PC-ER-54, 6/23/83; affirmed by Dane County Circuit Court, Bisbee v. State Pers. Comm., 617-636, 10/3/84

The Commission found no probable cause in regard to the termination of complainant's employment where there was ample evidence of the complainant's inadequate performance, there was little if any evidence that her asthmatic condition was causative with respect to her performance problems, and although the complainant's supervisor was aware of certain complaints by the complainant to the vice-chancellor, this was considered of little significance against her record of inadequate performance. Way v. UW, 78-122-PC, 79-PC-ER-4, 3/8/82

There was no probable cause to believe that respondent had discriminated against the complainant on the basis of handicap where it was difficult to see how respondent could have accommodated complainant in the position in question and where complainant clearly was "physically unable to perform his duties" within §111.32(5)(c) and, therefore, was subject to termination, subject to the requirements of §230.37(2), Stats. Stasny v. DOT & DP, 79-192-PC, etc., 1/12/81

774.03(1) Finding of discrimination

Respondent failed to accommodate complainant's disability within a reasonable period of time where there was no evidence offered by respondent to explain or justify the lapse of time in providing complainant a chair with a headrest. In March of 1994, complainant submitted a Disability Accommodation Report form for such a chair. Respondent's affirmative action compliance officer informed complainant in September of 1994 that respondent would provide him with the chair but then did not follow up until January of 1996. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98

Discrimination was found where complainant, who had a history of mental depression, was not selected for a typist position at a state correctional camp and where handicap was found to have "made a difference" in the decision to hire a woman. DHSS v. Pers. Comm. (Busch), 81-CV-2997, 3/9/82, affirming with respect to handicap discrimination the Commission's decision in Busch v. DHSS, 78-PC-ER-8, 3/15/81

The employer failed to meet its responsibility for accommodation where it failed to determine whether an appropriate job opening was available through transfer and to offer any such vacancy to complainant. Instead, respondent left the pursuit of such matters to the complainant. Complainant was discharged for medical reasons connected to his handicap which left him unable to perform as a Correctional Officer. Keul v. DHSS, 87-0052-PC-ER, 6/23/93

Respondent failed to sustain its burden with respect to accommodation where it refused to continue to employ the complainant in any capacity at the University of Wisconsin Hospitals and Clinics based upon a physician's evaluation which did not rule out the likelihood of another psychotic episode, where the evaluation was qualified by the facts that there had been a limited opportunity for evaluation, the complainant had received no treatment, and the physician testified he had successfully treated physicians with the same kind of illness as complainant who had been able to continue their employment at the same work site. Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 11/6/91

Where administrative rule required that only persons who had been certified as having a disability could be included in the certification of eligibles to be considered and, with respect to the vacancy in question, the respondents failed to verify the existence of disabilities prior to certification, the respondents violated the administrative rule and discriminated against the complainant, who was not handicapped, based on handicap. The net effect of the respondents' action was that three individuals who scored lower than the complainant on the qualifying exam but who were included on the certification list under handicapped expanded certification even though their handicaps had not been verified as required, were actually considered for the vacant positions. Oestreich v. DHSS & DMRS, 87-0038-PC-ER, 2/12/91

Discrimination was found where complainant, who was visually handicapped, was rejected from employment on a hospital's food tray line as soon as she stated she was unable to read the menu cards on the trays in the existing workplace configuration. At hearing, the respondent failed to offer evidence rebutting the testimony of complainant's expert witness that certain specific accommodations would have allowed the complainant to have performed the job duties. Nothing suggested that, at the time complainant's employment request was rejected, the appointing authority actually considered whether there any reasonable accommodations were available and it appeared that the supervisor who was effectively responsible for the hiring decision was unaware of the duty of accommodating handicapped applicants. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

Unlawful discrimination was found where employe's immediate supervisor failed to carry out instructions from upper-level management to structure employe's duties and responsibilities so as to comply with agency's obligations under §230.37(2), Stats, relating to employes who are unable to perform their duties. Kleiner v. DOT, 80-PC-ER-46, 1/28/82

774.03(2) Finding of no discrimination

The granting of veterans preference points does not violate §111.32(8), Stats., relating to handicap discrimination. Nettleton v. State Personnel Board, Dane County Circuit Court, 159-201, 8/13/79

Complainant, who had longstanding back problems, underwent surgery in February of 1995, and was on medical leave without pay from February of 1995 until June of 1996, was not discriminated against on the basis of disability when his employment was terminated due to continuing medical problems. Complainant was unable to perform the Youth Counselor 2 duties as they were accurately reflected in the relevant position description. The position description specifically referred to lifting 125 pounds, an independent medical exam in September of 1995 concluded that complainant had a lifting limit of 35 pounds and should avoid repetitive bending, and complainant's physician indicated in April of 1996 that complainant was permanently and totally disabled with respect to complainant's job and was incapable of lifting more than 50 pounds and making certain repetitive motions. Complainant acknowledged he would have to decline a supervisor's request to provide assistance with a large-scale disturbance at the institution. Wille v. DOC, 96-0086-PC-ER, 1/13/99 (appeal pending)

Complainant failed to establish a prima facie case of disability discrimination regarding alleged adverse terms and conditions of employment where she failed to present any evidence that she was treated differently than non-disabled co-workers in similar circumstances. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98

Alleged one-time conduct by complainant's supervisor of touching complainant and putting arms around her did not meet the requirements of sustained and non-trivial actions so as to constitute harassment based on complainant's disability. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98

No disability discrimination was found with respect to the decision to terminate complainant's employment where the institution had recommended that complainant's probationary period be extended but, less than a

week thereafter, respondent learned that complainant had been absent due to the effects of drinking alcohol and that another employe overheard complainant say he felt "like a postal employe." Figueroa v. DHSS, 95-0116-PC-ER, 3/11/98

Complainant did not establish that he had provided respondent, as of the date the relevant hiring decisions were made, with a medical release from the light duty restrictions that existed during his previous employment with respondent. Therefore, no handicap discrimination was found. Van Zutphen v. DOT, 90-0141-PC-ER, 12/20/96

Respondent did not discriminate against complainant based on his handicap when it provided information to complainant about his appeal rights and options during two telephone calls where there was no evidence of wrongdoing by the employer, such as an intent to conceal information or a legal duty to fully disclose such information. Furthermore, the failure to provide certain information was cured by a follow-up letter. Krueger v. DHSS, 92-0068-PC-ER, 7/23/96

Respondent did not discriminate against the complainant based on handicap when it terminated her employment as a Residential Care Technician in a center for the developmentally disabled. Formal standards required RCTs to lift 55 pounds, complainant acknowledged her job required her to lift in excess of that amount and there were various lifting restrictions placed on complainant by medical providers, ranging to a maximum of 45 pounds. Respondent could not have reasonably accommodated complainant because excluding her from all those work activities which required her to lift in excess of her limitations would be to establish a special position for her, would measurably exacerbate problems of cost, staffing, contractual agreements and employe morale and would eliminate an essential function of the RCT position. The 55 pound weight lifting requirement was formally initiated well before the event that precipitated complainant's termination. Van Blaricom v. DHSS, 93-0033-PC-ER, 5/2/96

A few tense conversations between complainant and his supervisor do not amount to opprobrious or severe mistreatment so as to alter the conditions of his employment and create an abusive working environment. Complainant failed to establish harassment based on handicap. Eddy v. DOT, 93-0009-PC-ER, 9/14/95

No discrimination based on age or handicap was found regarding respondent's decision to permit three other employes to complete recruit training school before the complainant, where complainant never requested to attend the school on a full-time basis. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95

No discrimination based on age or handicap was found regarding respondent's decision to deny complainant's request for refresher training in firearms, where complainant was not eligible for such training. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95

No discrimination based on age or handicap was found regarding respondent's decision to terminate the complainant's employment due to negligence in carrying out his duties as a limited term police officer, failure to follow instructions and making false statements. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95

No handicap discrimination was shown where the complainant did not argue he was more qualified for the position than the successful candidate. Complainant's belief that he would have been hired if written justification for not hiring had to be provided to respondent's Affirmative Action officer was unsupported by the evidence. Bertram v. DILHR, 92-0241-PC-ER, 9/21/94

No handicap discrimination was established regarding the decision to terminate complainant's probationary employment where there were numerous instances where complainant's work performance was inadequate, numerous complaints received about his performance and these problems had to be viewed in the context of complainant's status as a probationary employe. During the course of a 30 day review period, additional training was provided to the complainant and his work performance was carefully analyzed. Stark v. DILHR, 90-0143-PC-ER, 9/9/94

Any inference of discrimination or pretext raised elsewhere in the record was dispelled entirely by complainant's admission that he really did not believe respondents' decision to institute "hiring above the minimum" after complainant had already been hired was based in any part on his handicap. Complainant's handicap was merely coincidental to complainant's status of one of two individuals who were employed by respondent DOJ before the HAM hires. Thorpe v. DOJ & DER, 93-0093-PC-ER, 7/25/94

It was not handicap discrimination to discharge complainant from his position as a sheet metal worker because medical evidence showed he could no longer perform the job safely due to weakness in his left leg caused by stroke. Complainant's deficits in his left leg were "reasonably related" to his ability to adequately perform his job and returning complainant to the job would place his personal safety at risk. Keller v. UW-Milwaukee, 90-0140-PC-ER, 6/21/94

The rationale for the imposition of a requirement of a physician's verification for absences was not shown to be pretextual where this requirement was imposed in accordance with a collective bargaining agreement and other applicable requirements, and complainant was not treated differently than any other similarly situated employe. Miller v. DHSS, 91-0106-PC-ER, 5/27/94

The rationale for the extension of complainant's probation was not shown to be pretextual where the record did not support complainant's contention that he had not been worried about the possible results of his absenteeism, and it was not necessary for respondent to demonstrate that complainant's absences had a negative impact on the operation of his unit in order to enforce its absenteeism policies. Miller v. DHSS, 91-0106-PC-ER, 5/27/94

While complainant could establish that the termination of his employment was on the basis of handicap by showing a causal link between his handicaps and his attendance record, he failed to establish on the record that any of his unscheduled absences were caused by his handicaps. Even if some relationship were inferred between his absences due to illness and his handicaps, he had a number of other absences unrelated to illness. Miller v. DHSS, 91-0106-PC-ER, 5/27/94

Numerous incidents which complainant alleged constituted a pattern of harassment against her because of her handicap and in retaliation for pursuing an accommodation request and making disclosures covered by the Whistleblower Law were analyzed and it was found that complainant failed to satisfy her burden of proof. As to two matters for which respondent's explanations did not have an accurate basis in fact, any ulterior motives by management were far more likely related to labor-management strife and a related FLSA lawsuit than to complainant's handicap or her protected activities in connection therewith. A conclusion of discrimination is not mandated by a finding of pretext where the record reflected that management was motivated by somethin other than complainant's protected activity. St. Mary's Honor Center v. Hicks, 125 L.Ed. 2d 407, 113 S.Ct. 1742 (1993); Kovalic v. DEC Intl. Inc., 161 Wis. 2d 863, 876-78, 469 N.W. 2d 224 (Ct. App. 1991). Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94

Complainant requested a route reassignment as an accommodation for her MS, and presented a doctor's note setting forth certain restrictions on the extent of her driving. Because management perceived this note as ambiguous concerning the extent of the restrictions, they placed complainant on leave with pay while they attempted to obtain clarification from her physician. She also was assigned for one day to light duty refurbishing ticket dispensers in the regional office, a normal assignment for employes in complainant's classification who were not actively engaged in running routes.  Under the circumstances, both actions by management constituted reasonable accommodations, and respondent did not violate the FEA by not providing complainant with the exact accommodation she desired. Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94

Complainant's discharge from his employment as a driver's license examiner was in connection with his acting out in the presence of members of the public, certain behavior related to what was diagnosed as an "immature personality disorder in association with a sexual paraphilia," but which was not diagnosed as a psychiatric illness or impairment, but a personality disorder which did not limit his capacity to work. Therefore, he was not a handicapped individual pursuant to §111.32(8), Stats., since his sexual impulses were not uncontrollable and his behavior did not result from an uncontrollable or irresistible urge or impulse. Miller v. DOT, 89-0092-PC-ER, 11/23/93

No discrimination was found where complainant, a non-handicapped individual, presented no evidence to substantiate his claim that respondent hired a handicapped individual instead of him to meet an affirmative action quota. Complainant's interview score was only third highest among five finalists. The successful candidate was rated highest and had a very strong reference. Sagady v. ECB, 92-0101-PC-ER, 9/24/93

Respondent's failure to interview complainant for a vacancy was solely because of its keypunch error when entering complainant's application information. Complainant's handicap discrimination claim was dismissed. Schimmel v. DOD, 91-0070-PC-ER, 9/24/93

Complainant's dyslexia was held not to "limit the capacity to work" but to impose "a substantial limitation on a particular life activity" and, as a result, to constitute a handicap. It was held that it did not constitute handicap discrimination per se for the appointing authority not to select complainant even though he was the interview panel's top-ranked candidate; but it was appropriate for the appointing authority to consider this as one of several selection factors, including the candidates' level and type of education, level and type of experience with the State Patrol, and the goals of the applicable affirmative action plan. Complainant's argument that, once respondent requested handicapped expanded certification, it was required to hire a handicapped candidate, would lead to an absurd result. Byrne v. DOT & DMRS, 92-0672-PC, 92-0152-PC-ER 9/8/93; affirmed by Dane County Circuit Court, Byrne v. State Pers. Comm., 93-CV-3874, 8/15/94

No discrimination was found in hiring three positions where, as to two of the decisions, the decisionmakers were unaware of complainant's handicapping condition and the decisions not to select complainant were based on reasons other than her handicap, including her attitude and friendliness expressed during the interviews and her references' comments. Smith v. UW-Madison, 90-0033-PC-ER, 7/30/93

Respondent's request to DMRS to remove complainant's name from the certification list was consistent with §ER-Pers 11.04(1), Wis. Adm. Code, and did not support a finding of discrimination. The author of the letter was unaware of complainant's handicap. Smith v. UW-Madison, 90-0033-PC-ER, 7/30/93

A claim of handicap discrimination was rejected by the Commission where the employe's reinstatement at a lower pay rate than at the time of his prior termination was the consistent practice of the hiring unit. Pretext was not shown by reference to two other employes who were reinstated without pay loss because differences demonstrated they were not similarly situated to complainant. Hanke v. DHSS, 91-0041-PC-ER, 6/25/93

Respondent did not fail to accommodate complainant's handicap where complainant waited until after he was given his termination notice to inform respondent he was an alcoholic and the only evidence respondent had that complainant might have a drinking problem was his arrest for operating while intoxicated and, based on that single arrest, respondent was not required to ascertain the existence of a handicap. Thomas v. DOC, 91-0161-PC-ER, 4/30/93

Where a substantial portion of complainant's absenteeism could be attributed to her depression, her discharge was substantially attributable to her handicap. Respondent established that complainant was unable to adequately undertake her job responsibilities due to her pervasive absenteeism. Bell-Merz v. UW-Whitewater, 90-0138-PC-ER, 3/19/93

Complainant, who had incurred injuries in an auto accident, which involved a whiplash injury resulting in headaches, neck pain, numbness in both arms and hands, slight back pain, and pain between her shoulder blades, did not satisfy the definition of a "handicapped individual," §111.32(8), Stats., since complainant's injuries caused her to make only minor changes in her work and life activities and did not render achievement unusually difficult or limit in any significant way her capacity to work. The record also does not reflect that respondent perceived complainant as handicapped. Assuming arguendo the existence of a handicap, complainant failed to establish that the substantial reasons assigned by respondent for her probationary termination were a pretext for handicap discrimination. Renz v. DHSS, 88-0162-PC-ER, 12/17/92

Complainant failed to establish pretext with regard to respondent's decision as to promotion. Respondent articulated a legitimate, non-discriminatory rationale for its decision--the selected candidates did better on the oral interview, and management had positive opinions about the selected candidates' past performance and concerns about complainant's past performance. These concerns were not shown to be pretextual, particularly in light of examples of complainant's problem areas in the record. While complainant had more education and experience than the selected candidates, respondent had a reasonable basis for its opinion that the selected candidates had demonstrated greater potential for successful performance in the higher level positions based on performance factors and better performance during their interviews. That complainant had more experience and formal education did not result in a conclusion of pretext because, under all the circumstances, including the aforesaid performance factors, respondent had a reasonable basis for believing the selected candidates had better potential to succeed at the higher level. While complainant's contentions about inadequate accommodation of his handicap were considered as potentially probative of respondent's attitude toward handicapped employes, he did not establish that respondent denied him any accommodations. Orr v. OCI, 92-0018-PC, 92-0025-PC-ER, 10/29/92

Complainant's problematic personality characteristics did not fall within the parameters of an actual or perceived handicap where his mental status was otherwise considered to be "well within the normal range." Merely because the enokiter contended complainant's condition would satisfy the criteria in §230.37(2), Stats., it does not follow that the condition constituted a perceived handicap. Where the personality characteristics did not fall within the meaning of the term "impairment," there was neither an actual nor a perceived handicap. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94

Respondent did not discriminate against complainant on the basis of handicap or retaliation with respect to conditions of employment. While the record reflected a poor relationship between complainant and his supervisor, there was no reason to conclude that this was attributable to appellant's handicap or to retaliation as opposed to a number of other possible reasons. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92

Respondent did not discriminate against complainant on the basis of handicap in connection with his suspension with pay pending an investigation for a crime that ultimately was attributed to another employe. Respondent had a reasonable basis for having suspected complainant, and this was not shown to have been pretextual. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92

No retaliation or handicap discrimination was found as to a termination decision where there were consistently negative evaluations of complainant's work by a number of supervisors and the supervisor who spent the most time directly supervising complainant was then unaware of his earlier complaint. The complainant also grabbed a co-worker's wrist, bruising it enough that a doctor recommended a brace and a week's absence from work. Bjornson v. UW-Madison, 91-0172-PC-ER, 8/26/92

Qualifying for Handicapped Expanded Certification does not in and of itself show that complainant is handicapped for purposes of FEA. Complainant's "multiple pulmonary emboli" required only a short hospitalization and a total recovery period of only a few weeks. Complainant did not show that her medical conditions had a tendency to "make achievement unusually difficult or limit capacity to work," or resulted in the relevant work performance problems. The complainant failed to show that those making the subject termination were aware of complainant's depression. Engel v. UW-Oshkosh, 89-0103-PC-ER, 8/26/92

Respondent's hiring of complainant as part of a program for "slow learners" and assignment to him of least complex duties to which a lower productivity standard was applied, established that respondent aware of complainant's handicap. In view of expert testimony that complainant's mental impairment would not prevent him from performing duties of Library Services Assistant position once such duties were learned, his performance deficiencies, rather than his handicap, was the basis for his termination. Fischer v. UW-Madison, 84-0097-PC-ER, 7/22/92

It would require an employer to engage in intrusion and guesswork if the employer were required, based on the existence of performance problems alone, to aggressively investigate whether an employe has a handicap. McClure v. UW-Madison, 88-0163-PC-ER, 4/21/92

Respondent was not aware nor should it have been aware of complainant's handicap where during his first day on the job, complainant completed a form which indicated that he had no handicapping condition which required accommodation, there was nothing in complainant's behavior or speech which should have alerted respondent that complainant had a handicap and where his supervisor asked the complainant whether there was some problem which was interfering with his ability to do his job, complainant only made some vague reference to a problem at home. McClure v. UW-Madison, 88-0163-PC-ER, 4/21/92

Although a written psychological evaluation indicated that complainant's handicap would cause him to have a great deal of trouble understanding any form of written instructions and to have trouble retaining any complex oral instructions, and would require him to obtain employment which would involve extensive repetitious training, close supervision, simple tasks, and no self-direction and self-control, complainant's work history indicated that these limitations did not significantly affect complainant's ability to independently perform janitorial tasks. Complainant failed to show a clear causal relationship between his handicap and his performance deficiencies. No discrimination was found with respect to the respondent's decision to terminate complainant's employment as a Building Maintenance Helper 2. McClure v. UW-Madison, 88-0163-PC-ER, 4/21/92

Where complainant failed to show that respondent was or should have been aware of his handicapping condition and failed to show that there was good reason for the employer to suspect a clear causal connection between his handicapping condition and work performance problems, the respondent's termination decision was not discriminatory. Respondent had been informed that the complainant was a slow learner but not that he had a particular handicap, complainant had indicated on one of his application forms that he did not have a handicap which required an accommodation and complainant had indicated in response to questions from respondent that he did not have a problem which was affecting his work performance. The respondent had no additional obligation to determine whether the complainant was handicapped and whether any handicap could be accommodated. The complainant did not realize he was handicapped until after his termination. Jacobus v. UW-Madison, 88-0159-PC-ER, 3/19/92; affirmed by Dane County Circuit Court, Jacobus v. Wis. Pers. Comm., 92CV1677, 1/11/93

Where complainant failed to show a clear causal relationship between his handicap and his performance deficiencies, no discrimination was found with respect to the decision to terminate his employment. Jacobus v. UW-Madison, 88-0159-PC-ER, 3/19/92; affirmed by Dane County Circuit Court, Jacobus v. Wis. Pers. Comm., 92CV1677, 1/11/93

Respondent did not discriminate against the complainant, who has uncorrected vision acuity of 20/400, in deciding not to consider him further as a candidate for a State Patrol Trooper I position, where respondent had a standard for uncorrected vision of 20/100. Wood v. DOT, 86-0037-PC-ER, 5/5/88; affirmed by Milwaukee County Circuit Court, Wood v. Wis. Pers. Comm. & DOT, 88-CV-09-178, 5/10/89; affirmed by Court of Appeals, 009-178, 11/22/89

Respondent did not discriminate when it terminated complainant's employment as a Correctional Officer 2, which involved a special duty of care, due to complainant's inability to adequately perform some of the duties listed on the standard CO 2 position standard. Respondent was entitled to assume that a doctor's opinion stating that complainant "will most likely never return to his old job duties" but that he could "engage in sedentary work" meant that complainant was unable to adequately perform a past assignment which he had received four months earlier even though complainant had been on medical leave during the four month period. Conley v. DHSS, 84-0067-PC-ER, 6/29/87

Termination of the complainant, who suffered from vision problems which affected his ability to quickly locate and identify documents but had a very limited effect on his actual reading speed, was upheld where complainant's lack of speed in performing his tasks meant that he was simply not performing some of those duties set out in his position description. Rau v. UW-Milwaukee, 85-0050-PC-ER, 2/5/87

In a complaint arising from a hiring decision, no discrimination was found where complainant was not as well qualified as those sixteen applicants ultimately hired for janitorial positions, where eight of the thirty two certified applicants were handicapped and three of the eight were hired and where complainant held six different positions during the prior 4-year period and had been terminated once for a personality conflict and once for a verbal attack on a nun escorting a group of children who had walked on a floor complainant had just waxed. Vesperman v. UW-Madison, 81-232-PC, 81-PC-ER-66, 3/31/83

No handicap discrimination was found with respect to a refusal to allow the employe/complainant to rescind a request for voluntary demotion, where the complainant failed to show that he was handicapped or that the employer perceived him as such, where there was ample evidence that the employer based its decision on the complainant's inadequate job performance, and where another case was factually distinguishable. Rasmussen v. DHSS, 81-PC-ER-139, 12/29/82

Although complainant showed he was handicapped, he failed to show that the employer had any obligation under the Employe Assistance Program to refer the complainant to the program. Green v. UW, 79-PC-ER-129, 5/13/82

There was no showing of discrimination by respondent when it terminated complainant's employment where the complainant, approximately 2§ weeks after leaving work to enter a hospital, had informed the respondent that he did not want his job back. Green v. UW, 79-PC-ER-129, 5/12/82

No unlawful discrimination was found where the complainant, whose hand was in a cast, never clearly communicated to the respondent that he had had difficulty taking a written exam until several months later, and the respondent then offered him the opportunity to retake the exam. Goldberg v. DP, 78-PC-ER-66, 74, 10/17/80

Where the complainant was handicapped due to back and neck pains, but declared to his supervisors that he was totally unable to do the duties required, did not provide requested medical information on his condition, and did not anticipate being able to return to work at any specific time in the foreseeable future, no discrimination was found with respect to his discharge. Fuller v. UW, 78-PC-ER-55, 3/13/80

774.04 Prima facie case (also see 702.18)

Respondent's motion to dismiss for failure to state a claim of disability discrimination relating to a non-selection decision was denied, even though respondent denied that anyone on the search committee perceived complainant as having a mental impairment, where complainant pointed to various remarks provided to the committee and argued the committee must have inferred a disability of mental impairment. The Commission was unable to conclude as a matter of law that there was no conceivable way that complainant could establish that element of a disability claim. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98

Respondent's motion for summary judgment was denied as to complainant's disability claim arising from two alleged decisions not to recall the complainant even though the person who selected the other two individuals for the positions was not aware of complainant's disability at the time. The record did not indicate who had excluded complainant from the recall process. Sheskey v. DER, 98-0063-PC-ER, 8/26/98

Complainant failed to establish a prima facie case of disability discrimination relating to a Program Assistant 1 non-selection decision where the disability status of the successful candidate was not contained in the record. Ledwidge v. UW-Madison & UWHCB, 96-0066-PC-ER, 5/20/98

Complainant did not establish that she suffered from a mental impairment due to stresses at work, where she continued to be able to perform her job duties, she did not suggest to respondent that she suffered from a handicap, respondent did not perceive her as handicapped and the claimed handicap was not obvious to a lay person. Bentz v. DOC, 95-0080-PC-ER, 3/11/98

Complainant failed to establish that a two to three inch shortening of his left leg and fusion of his left ankle which caused him to walk with a noticeable limp constituted handicapping conditions where complainant acknowledged he was able to fully perform his duties as an Aide 2, there was no evidence as to how the conditions made achievement unusually difficult and where the persons involved in the subject hiring decisions who were acquainted with complainant did not perceive him to be handicapped as a result of these conditions, where no one had observed that his noticeable limp had interfered to any extent with the performance of his duties. However, complainant did establish that progressive degenerative arthritis in the left knee constituted a handicap. Van Zutphen v. DOT, 90-0141-PC-ER, 12/20/96

Respondent's action of removing the complainant from his supervisory position for failure to meet probationary standards was not discrimination based on handicap where complainant, who had taken two lengthy medical leaves, the second of which ended two months prior to the removal, failed to show that he continued to suffer from his impairment after returning from the second leave. Rose v. DOC, 93-0200-PC-ER, 8/4/95

The mere existence of a partial disability, involvement in a subsequent car accident, temporary wearing of a cervical collar/back brace as the result of the car accident, and continuing visits to a physical therapist/chiropractor, without a record tying the partial disability or the car accident injuries to substantial and lasting changes in the way that complainant handled the major day-to-day activities of her life, does not satisfy the element of the analytical framework that requires the complainant to establish that the impairment is such that it actually makes or is perceived as making achievement unusually difficult or limits the capacity to work. Respondent terminated complainant's employment as an Auditor 3, Lead Worker. Although respondent knew that complainant's impairment prevented her from sitting in one place for long periods of time and that complainant wore a cervical collar/back brace and even though complainant may have appeared on occasion to be in discomfort, respondent did not understand her condition to interfere in any significant way with her ability to perform the duties and responsibilities of her position. Complainant never indicated to her supervisors or her co-workers that her conditions were interfering, in a significant way, with her ability to perform her job duties, even though complainant did submit an accommodation request in which she stated her disability "impairs her from working extended hours at her computer" and makes "it difficult to perform numerous hours on the phone." Rufener v. DNR, 93-0074-PC-ER, etc., 8/4/95

A letter extending complainant's opportunity to consider accepting a voluntary demotion could not be characterized as an adverse employment action. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95

A memo, written pursuant to usual practice in order to summarize the content of a meeting, is not a decision regarding the complainant and could not be characterized as an adverse employment action. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95

Complainant's claim of handicap discrimination based upon perceived handicap arising from a hiring decision was dismissed where there was no evidence establishing that respondent perceived the complainant to be handicapped. Complainant ranked fourth highest after interviews, and the respondent selected the fifth ranking candidate after obtaining job references. Complainant's reference form stated that complainant had been absent due to "workman's compensation a few times" and had a "not too good" health and safety record. However, complainant stated at the interview that he had no work restrictions. Johnson v. DHSS, 89-0080-PC-ER, 10/4/94

Complainant's request for handicap accommodation, which she pursued through several layers of management, constitutes an activity pursuant to §111.322(3), Stats., that is protected against retaliation. Additionally, any discrimination against an employe because of a request for accommodation would be subsumed within the FEA's proscription of handicap discrimination per se in §111.34(1)(b). Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94

Respondent's action temporarily placing complainant on leave with pay while it sought clarification of her medical restrictions was not an adverse employment action, where she was not required to use any leave time and there was no demonstrable negative impact on her employment. Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94

Complainant, who had incurred injuries in an auto accident, which involved a whiplash injury resulting in headaches, neck pain, numbness in both arms and hands, slight back pain, and pain between her shoulder blades, did not satisfy the definition of a "handicapped individual," §111.32(8), Stats., since complainant's injuries caused her to make only minor changes in her work and life activities and did not render achievement unusually difficult or limit in any significant way her capacity to work. The record also does not reflect that respondent perceived complainant as handicapped. Assuming arguendo the existence of a handicap, complainant failed to establish that the substantial reasons assigned by respondent for her probationary termination were a pretext for handicap discrimination. Renz v. DHSS, 88-0162-PC-ER, 12/17/92

In a termination case, discrimination can occur if the discharge was motivated by complainant's handicap or if the discharge was based upon performance reasons that were causally related to the handicap. Jacobus v. UW-Madison, 88-0159-PC-ER, 3/19/92; affirmed by Dane County Circuit Court, Jacobus v. Wis. Pers. Comm., 92CV1677, 1/11/93

The complainant established that she had been discriminated against for purposes of the second element of analysis in a handicap discrimination case, where the respondent effectively disqualified the complainant from hiring consideration once the respondent learned of complainant's handicapping condition. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

The complainant did not establish that he was a handicapped individual or that he was discharged because of his handicap and there was evidence to the effect that complainant acknowledged, at the time of his discharge, that his physical ailments were treatable and under control. Shevlin v. Office of Public Defender, 87-0101-PC-ER, 4/17/90

Complainant was handicapped where his responsibilities as a Youth Counselor, requiring him to physically restrain students, aggravated his pre-existing condition of mild to moderate arthritis of the lumbar spine, citing LaCrosse Police Comm. v. LIRC, 139 Wis 2d 740, 741 (1987). Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 2/11/88

Complainant was handicapped where he suffered from an organic mental disorder which created stress and anxiety which in turn made it difficult for complainant to perform his job as a Building Maintenance Helper 2. Brummond v. UW-Madison, 84-0185-PC-ER, 85-0031-PC-ER, 4/1/87

In order to establish handicap discrimination, the complainant had to show that he was handicapped or that his employer perceived him as handicapped, and it was insufficient to show that co-workers and supervisors had doubts about his judgment, that there was concern as to whether complainant was capable of physically threatening or harming others at the workplace, and that some co-workers were aware of the fact that he was seeing a psychiatrist or psychologist. Buller v. UW, 80-PC-ER-49, 10/14/82; factual findings modified by order on 12/2/82; appeal dismissed by Dane County Circuit Court, Buller v. Pers. Comm., 83-CV-8, 12/14/89

The complainant failed to establish a prima facie case because of the strong evidence of inadequate job performance. She also failed to request an accommodation for her asthmatic condition or to inform her supervisor that she had a handicap which was exacerbated by working conditions. Way v. UW, 78-PC-ER-52, 3/8/82

774.05 Duty of accommodation

Respondent did not reasonably refuse to accommodate complainant's disabling condition when respondent provided him a leave of absence of more than 15 months after his back surgery before terminating his employment. Respondent established that had complainant been allowed to return to work as a youth counselor with a permanent assignment to certain specified 3^rd shift posts, it would need to assign a second youth counselor to the same post as complainant, given complainant's work restrictions. It is not a reasonable accommodation to require an employer to hire another employe to work alongside a disabled employe and to duplicate the disabled employe's responsibilities. Wille v. DOC, 96-0086-PC-ER, 1/13/99 (appeal pending)

Where there were disputed issues of fact regarding the suitability of positions offered to complainant before her resignation and where complainant claimed that she was forced to resign due to respondent's failure to accommodate her disability, respondent's motion to dismiss for failure to state a claim was denied. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98

Where, throughout complainant's employment, respondent consistently provided and demonstrated a willingness to provide complainant a manageable work schedule, respondent adequately accommodated complainant's disability. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98

Respondent reasonably accommodated complainant's disability where it followed the advice of its expert in establishing the specifications for the ergonomic chair requested by complainant. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98

Respondent reasonably accommodated complainant's disability when it responded to complainant's request for an ergonomic class and an E-mail class by conducting an ergonomic evaluation of complainant's workstation, had its safety officer instruct complainant on ergonomic correctness and gave complainant individual instruction on the use of E-mail. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98

Respondent failed to accommodate complainant's disability within a reasonable period of time where there was no evidence offered by respondent to explain or justify the lapse of time in providing complainant a chair with a headrest. In March of 1994, complainant submitted a Disability Accommodation Report form for such a chair. Respondent's affirmative action compliance officer informed complainant in September of 1994 that respondent would provide him with the chair but then did not follow up until January of 1996. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98

Respondent did not violate its duty of accommodation when it denied complainant’s request for seven days of leave over two months, where complainant had already been absent from work 611 hours that year, including 416 hours of leave without pay. Farrar v. DOJ, 94-0077-PC-ER, 11/7/97

The Fair Employment Act does not require that an employer has to provide any and all leave requested in connection with an employe’s treatment program. The questions of what is a reasonable accommodation, and whether a particular accommodation would impose a hardship, involve factual determinations that will vary from case to case. An employer is not obligated to keep an employe on a leave of absence indefinitely when there is no foreseeable date for the employe to return to work. Farrar v. DOJ, 94-0077-PC-ER, 11/7/97

Respondent did not violate the Fair Employment Act by requiring complainant to utilize non-work hours for counseling sessions, if the sessions were available during non-work hours, instead of permitting her to attend therapy sessions in the middle of her shift and allowing her to use flex-time to compensate for the absences. Farrar v. DOJ, 94-0077-PC-ER, 11/7/97

Respondent did not discriminate against the complainant based on handicap when it terminated her employment as a Residential Care Technician in a center for the developmentally disabled. Formal standards required RCTs to lift 55 pounds, complainant acknowledged her job required her to lift in excess of that amount and there were various lifting restrictions placed on complainant by medical providers, ranging to a maximum of 45 pounds. Respondent could not have reasonably accommodated complainant because excluding her from all those work activities which required her to lift in excess of her limitations would be to establish a special position for her, would measurably exacerbate problems of cost, staffing, contractual agreements and employe morale and would eliminate an essential function of the RCT position. The 55 pound weight lifting requirement was formally initiated well before the event that precipitated complainant's termination. Van Blaricom v. DHSS, 93-0033-PC-ER, 5/2/96

Respondent adequately accommodated complainant, who suffered from motion sickness, during a three month period after respondent required complainant and three coworkers to rotate seats when traveling in a state-owned van. There had been no prior policy and complainant had invariably ridden in the front seat. At the time the new policy was imposed, respondent's supervisor was vaguely aware that complainant suffered from motion sickness but the supervisor was unaware of the specific connection between riding in the back of the van and the illness. When, after three months, complainant made his supervisor aware of the connection between his handicap and the new policy, respondent immediately instituted a temporary accommodation which satisfied the complainant and once the need for that accommodation was verified by complainant's physician, respondent made it permanent. Eddy v. DOT, 93-0009-PC-ER, 9/14/95

Respondent did not fail to accommodate the complainant, a quadriplegic, when, in conjunction with an offer of employment, respondent denied complainant's request to direct another employe to be available to refill complainant's water glass on a continual basis, cook her lunchtime meal, cut the food into pieces, put out utensils, open food containers and set up and remove her lunch. No employes were willing to provide the assistance on a volunteer basis. In analyzing the request, the Commission looked to the Americans with Disabilities Act and related federal regulations and guidelines for interpretive guidance. Respondent had the responsibility to ensure complainant had equal access to the benefits and privileges of lunch and break times, and was not required to ensure she received the same results of those benefits and privileges. Respondent was not required to hire a personal care assistant for complainant. Respondent met its responsibility by providing complainant an opportunity to attempt to make arrangements for her drink and water needs through other sources. Rogalski v. DHSS, 93-0125-PC-ER, 6/22/95

Respondent attempted to reasonably accommodate complainant's handicap of depression and an obsessive-compulsive condition when it offered complainant a demotion compatible with a psychologist's report. Respondent had rejected the option of returning the complainant to his former position with various adjustments which respondent reasonably rejected as requiring too much supervisory time and resulting in delayed services to respondent's clients. Respondent had provided complainant an unprecedented medical leave in excess of two years in hope that he could return to his former position. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95

Respondent satisfied its duty of reasonable accommodation where the only possible accommodation would have been to place complainant in another job, there was no evidence either that there were any positions available within respondent agency that would have satisfied complainant's self-articulated restrictions or that respondent did not make an appropriate effort to canvass the agency for such jobs, and respondent provided information to complainant about how to check generally available information concerning announced vacancies in other agencies but did not make other efforts to find complainant another position beyond the perimeter of respondent agency. Where respondent secretary had no statutory authority to appoint people to positions outside of the agency, such an appointment could not be considered a reasonable accommodation under the Fair Employment Act, citing Pellitteri v. DOR, 90-0112-PC-ER, 10/24/94; affirmed by Dane County Circuit Court, Pellitteri v. Wis. Pers. Comm., 94CV3540, 7/19/95. Ledvina v. DHSS, 93-0194-PC-ER, 3/3/95

Respondent met its duty of accommodation where it complied with the civil service code and provided information to complainant about transfer opportunities outside of the agency. Where complainant was a long-term employe in state service and knew, or should have known, where to inquire further about transfers to other agencies, respondent's duty of reasonable accommodation did not require it to search for positions outside of respondent agency or to advocate for complainant's hire in any such suitable positions. The Commission did not address the question of whether respondent's accommodation duties under the FEA were limited to the duties required under the civil service code. Pellitteri v. DOR, 90-0112-PC-ER, 10/24/94; affirmed by Dane County Circuit Court, Pellitteri v. Wis. Pers. Comm., 94CV3540, 7/19/95

The employer was not required to hire an assistant for complainant, who suffered weakness in his left leg caused by stroke, in order for complainant to perform his job as a sheet metal worker, where to do so would be unwieldy at best. The record also established that mechanical aids would not be adequate from a safety standpoint. Respondent also made a good faith offer of alternate employment, but complainant only was interested in remaining in the sheet metal job. Keller v. UW-Milwaukee, 90-0140-PC-ER, 6/21/94

Where the complainant did not establish a relationship between his handicaps and his absences, and his termination was based on his absences, there was no duty of accommodation. In any event, the only accommodation sought by complainant (removal of the requirement for medical verification for sick leave) is not the type of action contemplated by the FEA's accommodation requirement, because it is not related to complainant's performance of his assigned duties and responsibilities. Miller v. DHSS, 91-0106-PC-ER, 5/27/94

The employer failed to meet its responsibility for accommodation where it failed to determine whether an appropriate job opening was available within the agency through transfer and to offer any such vacancy to complainant. Instead, respondent left the pursuit of such matters to complainant. Complainant was discharged for medical reasons connected to his handicap which left him unable to perform as a Correctional Officer. Keul v. DHSS, 87-0052-PC-ER, 6/23/93

The decision in McMullen v. LIRC, 148 Wis. 2d 270, 434 NW2d 830 (Ct. App. 1988), which held that the duty of accommodation may include the transfer of a handicapped employe to another position for which the employe is qualified, depending on the facts of each individual case, operates retroactively. Keul v. DHSS, 87-0052-PC-ER, 6/23/93

Respondent satisfied the requirements of §230.37(2), Stats., when it transferred complainant, placed him on part-time service, and granted him several medical leaves. The record evidence showed complainant was unable to work at all during the relevant time period and, as a result, just cause existed for his termination and there was no duty of accommodation because no possible accommodation could be made. Chavera v. DILHR, 90-0404-PC, 90-0181-PC-ER, 5/21/93; affirmed by Dane County Circuit Court, Chavera v. Wis. Pers. Comm., 93-CV-2441, 8/25/94; affirmed by Court of Appeals, 94-2674, 6/1/95

Respondent did not fail to accommodate complainant's handicap where complainant waited until after he was given his termination notice to inform respondent he was an alcoholic and the only evidence respondent had that complainant might have a drinking problem was his arrest for operating while intoxicated and, based on that single arrest, respondent was not required to ascertain the existence of a handicap. Thomas v. DOC, 91-0161-PC-ER, 4/30/93

Given the pervasiveness and duration of complainant's absenteeism problem, the absence of any expert opinion that a transfer would have been medically indicated, and the fact that complainant failed to suggest a transfer at the time of her discharge, the respondent did not fail in its duty of accommodation by not having pursued on its own motion the idea of a transfer. Bell-Merz v. UW-Whitewater, 90-0138-PC-ER, 3/19/93

Respondent did not deny complainant an accommodation where he was completely unable to work and there was no foreseeable change in his condition. Respondent was not required to keep complainant's job open and extend his leave of absence indefinitely as an accommodation under these circumstances. An accommodation normally is an alteration in the working environment, the provision of some special assistance that will enable the employe to perform the duties of his or her position, or the provision of an alternative work assignment or position with duties the employe can perform. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92

Respondent did not violate its duty of accommodation by providing a couch to complainant, a paraplegic, which was too short for its intended purposes, where complainant accepted the couch without indicating it was too short, and his doctor had provided neither specifications for the couch or an explanation for its intended use when it was originally requested. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92

Respondent was under no obligation to provide an accommodation where complainant never advised respondent that his performance problems were related to his physical condition. Complainant's handicap did not meaningfully contribute to his performance problems and there wan an independent basis for termination that had no possible relation to handicap. Bjornson v. UW-Madison, 91-0172-PC-ER, 8/26/92

Although no duty of accommodation existed, if such duty had existed, respondent would not be required to go beyond the recommendations of the mental health experts selected by complainant's physician to determine the availability/practicality of other accommodations. Fischer v. UW-Madison, 84-0097-PC-ER, 7/22/92

The employing agency's responsibility to "accommodate" imposed by §230.37(2) runs throughout the agency, except in cases where there is a subdivision whose head has been given statutory or constitutional authority to make appointments. While the original appointing authority can delegate his or her "power of appointment" under §230.06(2) to various subordinates, this does not limit the scope of the original appointing authority's responsibility of "accommodation" under §230.37(2). Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 11/6/91

The burden of proof with respect to the ability to perform in a handicap case rests on the employer, citing Samens v. LIRC, 117 Wis. 2d 646, 345 N.W. 2d 432 (1984). Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

A complainant who has been refused employment is not required to show that he or she in fact at least broached the issue of accommodation at the time of the hiring transaction. The duty of accommodation is not contingent on the applicant making a request for accommodation. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

If an employer reaches the conclusion that a handicapped job applicant who is otherwise in line to be hired faces a problem in performing the job because of that handicap, the employer should know that it has a duty of accommodation. However, depending on the circumstances of the particular case, there may be cases where an applicant would have some obligation to come forward with information about a possible accommodation. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

In a complaint arising from the decision to reject the complainant, who was visually handicapped, for a vacant position on a hospital's food tray line, the respondent's accommodation expert could properly conduct a case-by-case analysis of the complainant's ability to perform where the expert knew the complainant's visual acuity was 20/200. Respondent was not required to provide the complainant a trial in the position. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90

Where the complainant consistently failed to meet performance standards for her Auditor Specialist 3 position, the respondent was not required to transfer the complainant to another position because there were no positions identified which she could adequately perform or were otherwise viable. The respondent was also not required to lower the performance standards because that would effectively mean the creation of a different position. Finally, the respondent was not required to permit the complainant to utilize a "job coach" from the Division of Vocational Rehabilitation where the respondent had already unsuccessfully used several experienced auditors to "coach" the appellant and the DVR coach would only focus on minimal aspects of complainant's duties. Tews v. PSC, 89-0150-PC, 89-0141-PC-ER, 6/29/90

Respondent was required to offer complainant a reassignment where the employe who had previously performed the work had moved to another assignment, someone had to pick up the duties, the complainant had the ability to do the work and there would be no hardship in giving the job to complainant who was handicapped. The reassignment was not in the nature of a restructuring of existing jobs. Note: The respondent was found to have offered the reassignment to the complainant. Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 2/11/88

The employer's obligation is limited to the job-related responsibilities of the handicapped individuals' employment vis-a-vis the particular job he or she occupies or for which he or she is applying. The employer is not required to create a new job or transfer an employe to a completely different position as an accommodation but, where the employer normally exercises a degree of flexibility in assigning duties to employes and in a particular case can assign the responsibility to the handicapped employe without hardship, it may be required to do so as an accommodation. Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 2/11/88

Respondent was not required to exempt complainant, a handicapped employe, from forced overtime, as long as it was an essential job duty. Conley v. DHSS, 84-0067-PC-ER, 6/29/87

Respondent did not violate its duty to accommodate where respondent had granted complainant extensive leaves of absence, beyond that required by the collective bargaining agreement, and stood ready to allow complainant to work in his old classification with a prosthetic device if his doctor had released him to return to work on that basis. When respondent received a letter from complainant's physician stating complainant "would most likely never return to his old job duties" and did not identify any accommodation that would have permitted complainant to return to work, respondent was not required to pursue the question of accommodation further in light of the taxing physical demands of the classification. Conley v. DHSS, 84-0067-PC-ER, 6/29/87

Respondent, who ultimately terminated the complainant, properly attempted to accommodate his handicap of an organic brain disorder, by agreeing not to rotate his job tasks as done for other employes, creating a job that would minimize changes and be limited in scope and granting him extended medical leaves. Brummond v. UW-Madison, 84-0185-PC-ER, 85-0031-PC-ER, 4/1/87

In a discharge case where complainant suffered vision problems, respondent was justified in not accepting complainant's offer to work an additional 4 hours per week without pay where 4 hours was not enough to compensate for complainant's slow work speed. Respondent could not require the complainant to work overtime without pay, so an accommodation sufficient to allow the complainant to generate the quantity of work described in his position description was not available. Rau v. UW-Milwaukee, 85-0050-PC-ER, 2/5/87

The duty to accommodate does not include utilizing other employes to actually perform a job duty for a handicapped individual, or creating a new job. Rau v. UW-Milwaukee, 85-0050-PC-ER, 2/5/87

The respondent met its duty of accommodation in the context of determining whether there was probable cause to believe discrimination had occurred, where complainant, who suffered from allergic rhinitis and rheumatoid arthritis, declined an opportunity to transfer to a less dusty environment, declined to wear a breathing mask or to be out of doors more frequently on breaks and the option of installing air cleaners/purifiers was of questionable utility and significant expense. Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87

There was probable cause to believe the respondent failed to meet its statutory obligation of accommodation of complainant's asthma condition with respect to exposure to chemical weapons, where gas masks were available to certain correctional staff. Hebert v. DHSS, 84-0233-PC & 84-0193-PC-ER, 10/1/86

Respondent made satisfactory efforts to accommodate appellant's handicap of diabetes where respondent granted him sick leave in order for him to have time to gain better control of his diabetes, offered him a straight shift for the same reason and offered him another position. Respondent also had unsuccessfully attempted to find a position for appellant to demote into or work part-time. Lueders v. DHSS, 84-0095-PC-ER, 5/29/86

Respondent fulfilled its duty to accommodate where it provided complainant with a less demanding clerical position and also gave him some work that was equivalent to his prior position of Building Construction Superintendent, but on a half-time basis and under close supervision, and where complainant was unable to adequately perform in these positions. Burnard v. DOA, 83-0040-PC-ER, 1/30/85

Probable cause existed where respondent failed to even consider the appropriateness of safety equipment as a means of accommodating complainant's handicap of epilepsy, and where respondent acknowledged that special life jackets were available and would be a good safety measure in many instances. Giese v. DNR, 83-0100-PC-ER, 1/30/85

Subchapter II, Chapter 111, Stats., provides a duty of reasonable accommodation to handicapped employe. Kleiner v. DOT, 80-PC-ER-46, 1/28/82

While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.

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