McMullen v. Labor & Industry Review Commission

434 N.W.2d 830, 148 Wis. 2d 270, 1988 Wisc. App. LEXIS 1149, 49 Fair Empl. Prac. Cas. (BNA) 182
CourtCourt of Appeals of Wisconsin
DecidedDecember 20, 1988
Docket88-0971
StatusPublished
Cited by22 cases

This text of 434 N.W.2d 830 (McMullen v. Labor & Industry Review Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McMullen v. Labor & Industry Review Commission, 434 N.W.2d 830, 148 Wis. 2d 270, 1988 Wisc. App. LEXIS 1149, 49 Fair Empl. Prac. Cas. (BNA) 182 (Wis. Ct. App. 1988).

Opinions

MYSE, J.

This is an appeal from a judgment affirming a Labor and Industry Review Commission determination under the Wisconsin Fair Employment Act. The commission concluded that Owens-Illinois, Inc., is not required to transfer Jerry Lee McMullen, a handicapped employee, from its woodlands division to its mill division because such a transfer would impose a hardship on Owens-Illinois by subjecting it to reverse discrimination claims. However, the commission now maintains that the duty to reasonably accommodate a handicapped employee never requires an employer to transfer a handicapped employee to another position. We conclude that “reasonable accommodation” may include a transfer of a handicapped employee to another position for which he is qualified, depending on the facts of each individual case. We also conclude that the record supports neither the commission’s nor the circuit court’s finding of hardship. Therefore, the judgment is reversed and remanded to the commission [272]*272with directions to conduct a hearing to determine whether such a transfer is reasonable under the circumstances and, if so, whether it would impose a hardship on Owens-Illinois.

Owens-Illinois employed McMullen as a timber worker in its woodlands division. Another division of Owens-Illinois operated a papermill in Tomahawk. Early in 1983, McMullen began experiencing inflammation of his joints, which his physician diagnosed as rheumatoid arthritis. This condition caused swelling and pain in his knees and wrists. McMullen’s physician therefore advised him to avoid his job as a woodcutter because the use of the affected joints, combined with the extreme temperatures, would aggravate the symptoms of his arthritis, make the disease more difficult to control, and could eventually cause permanent damage. He recommended that McMullen seek different employment involving indoor work.

McMullen explained his condition and its effect on his ability to work outdoors to the operations manager of Owens-Illinois’ woodlands division and requested a transfer to the mill, where there was at least one open position. He made repeated requests for a transfer, which were denied. Ultimately, McMullen resigned his position with the woodlands division.

McMullen subsequently filed a discrimination charge with the Department of Industry, Labor and Human Relations. After holding a prehearing conference, the administrative law judge concluded that McMullen failed to state a claim under sec. 111.34(l)(b), Stats. The administrative law judge stated that the duty to accommodate an employee’s handicap does not require a transfer to a different job but is limited to such accommodations as are necessary to allow the handicapped individual to perform the job he [273]*273or she held at the time the disability occurred. After holding a hearing on McMullen’s allegation of disparate treatment because of his handicap, the administrative law judge concluded that McMullen had not been subjected to intentional discrimination. The latter finding is not being appealed.

McMullen appealed the former portion of the administrative law judge’s determination to the commission, which affirmed the decision on a different ground. The commission assumed that the duty to accommodate may require a transfer to a different job but concluded that the requested accommodation would constitute a hardship for the employer because it might subject Owens-Illinois to “reverse determination” claims and therefore was not required under sec. 111.34(l)(b).

McMullen petitioned the circuit court for judicial review of the commission’s decision. Before the circuit court, the commission modified its previous position and argued that the duty to accommodate never includes assignment to a different position. The court affirmed the commission’s dismissal of McMullen’s complaint based upon its conclusion that the requested relief would impose a hardship on the employer’s hiring policies.

We review the commission’s decision using the same standard of review as applied by the circuit court. Lewandowski v. State, 140 Wis. 2d 405, 409, 411 N.W.2d 146, 148 (Ct. App. 1987). When reviewing the commission’s factual determinations, we will uphold them as long as they are supported by substantial evidence. Sec. 227.57(6), Stats. Ordinarily, we defer to the commission’s determinations on questions of law because of the commission’s experience and expertise where the determination involves the interpretation of a law that [274]*274the commission is charged with administering. See Robert Hansen Trucking, Inc. v. LIRC, 126 Wis. 2d 323, 331, 377 N.W.2d 151, 155 (1985). In the instant case, however, the commission made two separate and conflicting representations at different stages of the proceedings regarding the scope of the duty to reasonably accommodate a handicapped employee. In its written decision the commission stated that the duty to accommodate may include transfer to a different position. However, the commission now argues that this duty never includes such a transfer. For this reason, all parties have agreed that we owe no special deference to the commission’s decision.

The first issue is whether the duty to reasonably accommodate may require the employer to transfer a handicapped individual from his present position, which he cannot perform because of his handicap, to another position, which the handicapped individual can appropriately undertake. This involves statutory interpretation, which is a question of law. Tucker v. Marcus, 142 Wis. 2d 425, 432, 418 N.W.2d 818, 820 (1988).

Section 111.34(l)(b) requires an employer to “reasonably accommodate an employe’s or prospective employe’s handicap unless the employer can demonstrate that the accommodation would pose a hardship on the employer’s program, enterprise or business.” The purpose of statutory interpretation is to ascertain and give effect to the legislature’s intent. Ball v. District No. 4 Area Bd., 117 Wis. 2d 529, 537-38, 345 N.W.2d 389, 394 (1984). In doing so, we first look to the statutory language; if the statute’s meaning is clear, we will not look outside the statute. Id. at 538, 345 N.W.2d at 394. The statute does not define “reasonably accommodate,” nor does the statute specify the extent of the [275]*275accommodation. Yet, “reasonably accommodate” could be interpreted in either one of the ways advanced here. Therefore, the statute is ambiguous, and we may look to its context, scope, subject matter, legislative history and purpose to determine the legislative intent. Id.

Because the legislative history fails to disclose whether the legislature intended the duty to reasonably accommodate an employe’s handicap to include a transfer to another position, we examine the purpose of the act itself. Section 111.34, a remedial statute, is designed to address the specific problem of discrimination against handicapped individuals. As a remedial statute, it should be broadly interpreted to resolve the problem it was designed to address. Central Nat’l Bank v. Dustin, 107 Wis. 2d 614, 619, 321 N.W.2d 321, 323 (Ct. App. 1982).

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McMullen v. Labor & Industry Review Commission
434 N.W.2d 830 (Court of Appeals of Wisconsin, 1988)

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Bluebook (online)
434 N.W.2d 830, 148 Wis. 2d 270, 1988 Wisc. App. LEXIS 1149, 49 Fair Empl. Prac. Cas. (BNA) 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmullen-v-labor-industry-review-commission-wisctapp-1988.