DeBoer Transportation, Inc. v. Swenson

2010 WI App 54, 781 N.W.2d 709, 324 Wis. 2d 485, 2010 Wisc. App. LEXIS 225

• Court: Court of Appeals of Wisconsin
• Decided: March 25, 2010
• Docket: 2009AP564
• Status: Published

Opinions

LUNDSTEN, J.

¶ 1. Charles Swenson worked as a truck driver for deBoer Transportation. The question in this case is whether, under Wis. Stat. § 102.35(3),¹ deBoer Transportation illegally refused to rehire Swenson after he recovered from a work-related injury. The Labor and Industry Review Commission concluded that deBoer failed to show "reasonable cause" for its refusal to rehire Swenson, as required by § 102.35(3). We conclude that the commission's reliance on an incorrect interpretation of the reasonable cause standard caused it to err in ruling against deBoer. Accordingly, we reverse the circuit court's order, and remand for dismissal of Swenson's claim against deBoer.

Background

¶ 2. Swenson was employed by deBoer when he injured his knee at work. After several months away from the job, Swenson's doctor cleared him to return to work. Swenson contacted deBoer and began a reorientation program that deBoer uses for drivers who have been off work for more than sixty days. Swenson cooperated with various requirements, including a physical examination, drug screening, a review of company policies, and a short road test required by the State. However, when deBoer insisted that Swenson complete an overnight "check-ride," the reorientation came to a halt.

¶ 3. DeBoer's "check-ride" requires a returning driver to be away from his or her home for a few days or longer so that another deBoer driver can evaluate driving skills.² Prior to his injury, Swenson drove a daily route for deBoer that allowed him to be home during part of every day to provide care for his terminally ill father. If Swenson participated in the overnight check-ride, he would have needed to locate and personally pay for a care provider for part of each day that he was away on the check-ride.

¶ 4. Swenson asked deBoer if he could complete his check-ride "locally" so that it would not interfere with his daily routine of caring for his father. Alternatively, Swenson told deBoer that, if the company would pay the additional cost of caring for his father during the overnight check-ride, Swenson would complete the ride. Because deBoer refused to consider making alternative check-ride arrangements or to pay for additional care for Swenson's father, Swenson refused to cooperate with the check-ride and was not rehired.

¶ 5. The commission accepted as true the testimony of deBoer employees that deBoer had never before made an exception to the check-ride policy. It is unclear how long deBoer's overnight check-ride policy had been in place, but there is no evidence that Swenson was treated differently than other returning drivers.

¶ 6. The commission seemingly accepted deBoer's assertion that the purpose of the check-ride was to ensure that it employed safe drivers and that the policy was reasonable on its face. DeBoer did not, however, attempt to prove that applying the policy in Swenson's particular case was necessary to ensure safety, that it could not tailor a check-ride for Swenson that would permit him to personally provide daily care for his father, or that accommodating Swenson's situation with his father would be a financial burden.

¶ 7. The commission focused on whether it was reasonable for deBoer to fail to accommodate Swenson's request. The commission concluded that deBoer did not demonstrate that accommodating Swenson would have compromised safety or been a financial burden and, therefore, deBoer failed to show reasonable cause for its refusal to rehire. The circuit court upheld the commission's decision, and deBoer appealed.

Discussion

¶ 8. The pertinent statute in this case, Wis. Stat. § 102.35(3), provides:

Any employer who without reasonable cause refuses to rehire an employee who is injured in the course of employment, where suitable employment is available within the employee's physical and mental limitations, .. . has exclusive liability to pay to the employee the wages lost during the period of such refusal, not exceeding one year's wages.

(Emphasis added.) The parties do not dispute that Swenson was injured in the course of employment or that deBoer "refuse [d] to rehire" Swenson within the meaning of the statute. The dispute is over whether that refusal was based on "reasonable cause."

¶ 9. The case law sets forth a shifting burden of proof. First, the employee must show that he or she "has been injured in the course of employment and subsequently is denied rehire." West Bend Co. v. LIRC, 149 Wis. 2d 110, 123, 438 N.W.2d 823 (1989). If an employee makes this prima facie showing, the burden shifts to the employer to show "reasonable cause" for its refusal to rehire. Id. This burden may be met with proof of a valid business reason for its action. Ray Hutson Chevrolet, Inc. v. LIRC, 186 Wis. 2d 118, 123, 519 N.W.2d 713 (Ct. App. 1994).

¶ 10. Whether the facts as found by the commission give rise to reasonable cause is a question of law. Id. at 122. The parties dispute what level of deference we should apply to the commission's application of the reasonable cause standard. We conclude for the reasons explained below, however, that the commission's application of the standard has no reasonable basis in the law or the facts of this case. Accordingly, the level of deference we apply to the commission's decision does not matter. An unreasonable application of a statutory standard will not be upheld under any level of deference. See DOR v. A. Gagliano Co., 2005 WI App 170, ¶ 23 n.7, 284 Wis. 2d 741, 702 N.W.2d 834 ("[Cjourts will not uphold an unreasonable agency interpretation of a statute, regardless of the level of deference applied----").

¶ 11. We begin with a summary of the commission's decision. The commission determined that, although deBoer's check-ride policy had a safety purpose, was of long standing, and was uniformly enforced, deBoer nonetheless failed to show reasonable cause because deBoer did not demonstrate that accommodating Swenson by deviating from its check-ride policy would have compromised safety or would have been a financial burden. Consistent with this reasoning, the commission argues on appeal that it is not enough for deBoer to show that it refused to rehire Swenson by uniformly applying its check-ride policy, which the commission acknowledges "may have some legitimate business purpose behind it." According to the commission, deBoer also needed to present evidence that persuaded the commission that it would have been an unreasonable burden to accommodate Swenson's non-work, non-injury-related request.³

¶ 12. DeBoer argues that this reasoning amounts to an incorrect interpretation of the statute because it requires something more than reasonable cause. We agree.

¶ 13. As noted above, there is no evidence that deBoer singled out Swenson in applying its check-ride policy. In addition, it is undisputed that deBoer's longstanding practice was based on deBoer's belief that the check-ride is a means of ensuring safe driving and that, as a general matter, having safe drivers is a legitimate business concern for deBoer. And, there is no evidence that deBoer's refusal to accommodate Swenson had anything to do with Swenson's injury. To the contrary, the evidence discloses that deBoer was in the process of rehiring Swenson and had taken several steps toward that end. So far as the evidence shows, the only reason Swenson was not rehired was because he did not participate in the check-ride. When deBoer declined to accommodate Swenson by tailoring a check-ride to meet Swenson's needs or by paying Swenson's additional care expenses, and when Swenson refused to incur the expense of paying for care for his father while he was away on the check-ride, the result was that Swenson was not rehired.

¶ 14. We conclude that the reasonable cause standard in Wis. Stat. § 102.35(3) does not contemplate requiring employers to either deviate from a facially reasonable and uniformly applied policy, or explain why it would be burdensome to do so, when a returning employee requests the deviation to accommodate a non-work and non-injury-related personal need. The policy here was facially reasonable because the policy furthers deBoer's interest in employing safe drivers. To hold otherwise would place an unreasonable burden on employers. See Dielectric Corp. v. LIRC, 111 Wis. 2d 270, 274, 279, 330 N.W.2d 606 (Ct. App. 1983) (employer did not violate § 102.35(3) when discharging injured employee pursuant to an absenteeism policy premised on objective criteria). We also observe that at least one pertinent case suggests that the commission and courts should not second-guess facially reasonable business decisions, at least not in the absence of evidence that an employer's refusal to rehire was because of the employee's injury. See Ray Hutson, 186 Wis. 2d at 123 (decision to eliminate injured employee's position in order to reduce costs was sufficient to establish reasonable cause, and commission erred by requiring employer to show some actual gain in efficiency).

¶ 15. Moreover, it is not reasonable to suppose that the legislature intended to impose on employers the burden of judging which non-work, non-injury-related requests need to be accommodated if reasonably possible. What if Swenson's accommodation request was based on his desire to continue daily volunteer work at a home for the elderly? What about a request based on his desire not to miss classes that he had paid for to enrich his life, such as woodworking or dance classes? We do not think the legislature intended to require employers to assess which non-work, non-injury-related requests merit accommodations and which do not.

¶ 16. It may be true, as the commission asserts, that deBoer could have met its safety concerns by requiring a less demanding check-ride tailored specifically to Swenson. But that does not mean that requiring Swenson to cooperate with deBoer's normal check-ride was unreasonable. Indeed, the only reason Swenson gave for not cooperating with a multiple-overnight check-ride was because the policy interfered with a non-work, non-injury-related issue in Swenson's life. Having concluded that deBoer was not obligated to accommodate the care needs of Swenson's father, there remains no basis for concluding that deBoer acted unreasonably in requiring that Swenson comply with its normal check-ride. It is unreasonable to interpret the "reasonable cause" standard in Wis. Stat. § 102.35(3) as requiring employers to precisely tailor reorientation programs to the anticipated assignment of a returning employee.

¶ 17. Accordingly, we conclude that the commission erred by determining that deBoer failed to show reasonable cause. Reasonable cause is shown here by deBoer's uniform application of its longstanding safety testing procedure to Swenson, combined with the absence of evidence supporting an inference that deBoer refused to rehire Swenson because of his injury. Stated differently, under the facts in this case, there is no basis for the conclusion that deBoer did not have reasonable cause to require Swenson to participate in the check-ride and, therefore, no basis for the conclusion that "reasonable cause" was lacking.

¶ 18. We stress that our decision should not be read as holding that the commission must accept as reasonable all longstanding uniformly applied policies that are facially reasonable. There may be circumstances in which the application of a facially reasonable business practice, even one of long standing, to a returning employee does not constitute "reasonable cause." For example, in some instances the connection between a proffered facially valid business reason and the demand on the employee may be too tenuous to supply reasonable cause. Just as the legislature could not have intended to impose on employers the burden of judging which non-work, non-injury-related requests need to be accommodated if reasonably possible, the legislature could not have intended to give employers free rein to impose any burden on returning employees, so long as that burden is facially related to a valid business purpose.

¶ 19. Up to this point, we have focused our attention on whether the commission applied an incorrect reasonable cause standard. We now address the portion of the commission's decision that declared deBoer's proffered reason for not rehiring Swenson a pretext for discrimination. The law is unclear on whether the question of pretext is subsumed in the reasonable cause analysis or whether, instead, pretext is a separate issue that is addressed only after an employer establishes reasonable cause. See Ray Hutson, 186 Wis. 2d at 123-24. We need not resolve this lack of clarity here, however, because the commission's pretext analysis adds nothing to its reasonable cause analysis. The commission's sole reason for finding that deBoer's check-ride requirement was a pretext was deBoer's failure to present evidence that it would have been an unreasonable burden to accommodate Swenson in providing care for his father.⁴

Conclusion

¶ 20. In sum, because the commission's decision depended on an incorrect interpretation of the reasonable cause standard in Wis. Stat. § 102.35(3), we reverse the circuit court's order confirming the commission's decision and remand for dismissal of Swenson's claim against deBoer.

By the Court. — Judgment reversed and cause remanded with directions.

1 All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.

2 The commission did not resolve a factual dispute as to how long deBoer was going to require that Swenson be away from home for his check-ride. DeBoer presented testimony supporting a finding that Swenson was told it would likely be less than five days. Swenson testified that he was told he would have to be on the road for two or three weeks.

3 If part of the commission's decision is considered in isolation, it might be read as containing a conclusion about the reasonableness of deBoer's check-ride policy that is distinct from the commission's consideration of the reason Swenson requested an accommodation. However, when the commission's decision is considered as a whole, it is readily apparent that the commission considered the reasonableness of deBoer's refusal to deviate from its check-ride policy in light of what it considered to be the legitimate need Swenson had to provide care for his father.

4 The majority chooses not to spend time responding to specifics in the dissenting opinion. At the same time, we caution that, in several respects, the dissent misreads the majority opinion, attributing to it reasoning and conclusions that it does not contain. Accordingly, readers should look to the source for our analysis and conclusions, and not to the dissent's characterizations of them.