Wingra Redi-Mix Inc. v. Labor & Industry Review Commission

2023 WI App 34COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2021AP2028
†Petition for Review filed
Complete Title of Case:
WINGRA REDI-MIX INC.,
PLAINTIFF-APPELLANT,†
V.
LABOR & INDUSTRY REVIEW COMMISSION,
DEFENDANT-RESPONDENT,
SCOTT GILBERTSON,
INTERVENOR-RESPONDENT.
Opinion Filed: June 8, 2023
Submitted on Briefs: June 27, 2022
JUDGES: Blanchard, P.J., Fitzpatrick, and Graham, JJ.
Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the briefs
of Robert S. Driscoll and Shannon M. Toole of Reinhart Boerner Van
Deuren s.c., Milwaukee.
Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Steven C. Kilpatrick, assistant attorney general, and Joshua L.
Kaul, attorney general.
On behalf of the intervenor-respondent, the cause was submitted on the
brief of James A. Walcheske, Scott S. Luzi, and David M. Potteiger of
Walcheske & Luzi, LLC, Brookfield.
2023 WI App 34COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 8, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP2028 Cir. Ct. No. 2020CV1812
STATE OF WISCONSIN IN COURT OF APPEALS
WINGRA REDI-MIX INC.,
PLAINTIFF-APPELLANT,
V.
LABOR & INDUSTRY REVIEW COMMISSION,
DEFENDANT-RESPONDENT,
SCOTT GILBERTSON,
INTERVENOR-RESPONDENT.
APPEAL from an order of the circuit court for Dane County: NIA
TRAMMELL, Judge. Affirmed and cause remanded.
Before Blanchard, P.J., Fitzpatrick, and Graham, JJ.
¶1 GRAHAM, J. Wingra Redi-Mix, Inc., appeals a circuit court order
that affirmed an order of the Wisconsin Labor & Industry Review Commission
No. 2021AP2028
(“LIRC”). In its order, LIRC determined that Wingra violated the Wisconsin Fair
Employment Act (“the Act”) when it discriminated against its former employee,
Scott Gilbertson, by refusing to reasonably accommodate his disability, which
resulted in the termination of his employment. LIRC ordered Wingra to reinstate
Gilbertson, and it awarded him back pay, attorney fees, and costs. Wingra
challenges several aspects of LIRC’s order.
¶2 Most prominently, Wingra argues that it did not have any obligation
under the Act to accommodate Gilbertson’s disability and cannot be liable for
failing to do so. Wingra advances various arguments to support this proposition,
but they are all variations on a single theme—according to Wingra, the fact that
Gilbertson was not diagnosed with a disability until after his employment with
Wingra ended forecloses any liability Wingra might have for refusing to
accommodate his disability. We reject Wingra’s arguments, largely based on the
facts found by LIRC, which Wingra has not shown to be erroneous. More
specifically, LIRC found that Wingra knew that Gilbertson had complained of a
physical condition that was consistent with a disability, and that he had requested
an accommodation to address the physical limitations that he was experiencing,
which were interfering with his ability to perform his job. According to LIRC, the
information Gilbertson provided “should have put [Wingra] on notice that
[Gilbertson] was making a disability accommodation request,” and there is no
evidence to suggest that Wingra could not have reasonably accommodated
Gilbertson’s disability. However, rather than providing an accommodation,
Wingra foreclosed any further discussion by “immediately and categorically
denying” Gilbertson’s accommodation requests for business reasons. Under these
circumstances, we agree with LIRC that Wingra violated the Act by refusing to
reasonably accommodate Gilbertson’s disability.
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¶3 Wingra also challenges LIRC’s determination that it terminated
Gilbertson’s employment, as well as various aspects of LIRC’s award of back pay
and attorney fees. We reject Wingra’s arguments because LIRC did not
erroneously interpret any provision of the Act and its factual findings are
supported by substantial evidence.
¶4 Accordingly, we affirm the decision of the circuit court and remand
for an award of Gilbertson’s reasonable attorney fees for the proceedings in the
circuit court and on appeal.
BACKGROUND
¶5 Gilbertson initiated this case by filing a disability discrimination
complaint with the state department of workforce development, which eventually
proceeded to a contested case hearing before an administrative law judge.
Gilbertson testified at the hearing, as did his medical professionals and his former
Wingra managers and colleagues. The exhibits introduced at the hearing included
email correspondence between Gilbertson and his former managers. The
following summary of facts is taken from LIRC’s findings and is supplemented, as
needed, by undisputed evidence from the hearing.
Factual Background
¶6 Wingra is a Wisconsin-based employer in the business of delivering
ready-mix concrete to commercial and residential construction sites. Gilbertson
was employed by Wingra as a ready-mix truck driver for just over two years,
starting in June 2011. His principal job function was to drive a truck containing
ready-mix concrete to job sites. He was also responsible for inspecting,
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maintaining, and cleaning his assigned truck, and for carrying, maneuvering, and
attaching heavy cement chutes to the truck at job sites.
¶7 Wingra had two types of ready-mix trucks, “gliders” and “non-
gliders,” in its fleet. The glider trucks were older models that were equipped with
cable-operated gas pedals and lacked shock absorbers. The non-glider trucks were
newer models that were generally less physically demanding and more
comfortable to drive. During Gilbertson’s employment, only nine of the 50 to 65
trucks in Wingra’s fleet were gliders, and the total number of trucks in the fleet
was greater than the number of drivers Wingra employed.
¶8 Wingra’s practice was to assign each of its drivers to a single truck.
Gilbertson was assigned to “Truck 56,” which was a glider truck.
¶9 In the late fall of 2012, Gilbertson began experiencing low back pain
and fatigue, which he attributed at least in part to the mechanics of operating his
assigned glider truck. He was laid off that winter and his pain improved. When
Gilbertson resumed employment in the spring of 2013, his pain quickly returned,
gradually worsening throughout the 2013 construction season. He experienced
daily back pain as well as pain that radiated down his right leg, ankle, and foot, a
loss of flexibility, “extreme soreness” and fatigue. Gilbertson could sleep for only
two hours at a time, and he was taking 12 to 16 ibuprofen tablets a day to cope
with the pain.
¶10 During this time, Gilbertson’s pain limited his ability to work and
the activities he could undertake at home. The mechanics of operating the
accelerator in his assigned truck increased Gilbertson’s pain levels, and he did not
feel safe operating his truck. The pain made it difficult for Gilbertson to move
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quickly and to keep up with work tasks, and he struggled to lift heavy objects,
including the cement chutes at job sites.
¶11 In early June 2013, Gilbertson decided to speak with his managers
about his health situation. At that time, and throughout the remainder of
Gilbertson’s employment, Wingra had no written policy or procedure regarding
disability accommodation requests. Wingra did not provide any guidance or
training to its employees on how to make such requests, nor did it provide any
guidance or training to its managers on how to handle any requests that were
made. When Wingra’s owner and president, Robert Shea, was asked about the
absence of pertinent guidance or training at the contested case hearing, he testified,
“I guess it’s an oversight.… You bring up an oversight in our [employee]
manual.”
¶12 Gilbertson first spoke with Wingra’s dispatch manager, Amber
Femrite, about the pain he was experiencing. He expressed interest in pursuing a
worker’s compensation claim.
¶13 After that, on June 4, 2013, Gilbertson spoke with Wingra’s safety
and human resources manager, Greg Sundby. Gilbertson told Sundby about his
back and leg problems, and that they were getting progressively worse. He told
Sundby that he was having difficulty driving his assigned truck because of the
problems he was experiencing, and he again expressed interest in filing a worker’s
compensation claim.
¶14 In response to Gilbertson’s statement about a potential worker’s
compensation claim, Sundby told Gilbertson that worker’s compensation
insurance might not cover his medical care because it might be difficult to prove
that his assigned truck was the cause of his problems. Gilbertson did not have
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No. 2021AP2028
health insurance at that time, and Sundby said that “he’d hate to get [Gilbertson]
stuck with the medical bills.” Sundby did not ask Gilbertson to see a doctor when
they conversed on June 4, 2013, nor did Sundby request any documentation
regarding the symptoms and limitations that Gilbertson was reporting. Indeed,
although Gilbertson raised his physical condition with Wingra on more than one
occasion in the months that followed, it is undisputed that no Wingra
representative ever asked Gilbertson to provide medical evidence regarding his
condition.
¶15 Shortly after the June 4, 2013 conversation, Gilbertson sent Sundby
a text message stating that he did not wish to file a worker’s compensation claim
until he had health insurance. Gilbertson expressed concern about having to pay
for his medical care if worker’s compensation would not cover those costs.1
¶16 At some point during the summer of 2013, Gilbertson spoke with
Femrite (the dispatch manager) to ask for a reassignment to a non-glider truck.
Femrite told Gilbertson to consult with another Wingra employee to identify a
suitable truck. The employee suggested “Truck 51,” a non-glider that was not
currently in use, and Gilbertson asked to be transferred to that truck. Femrite told
him that the registration on Gilbertson’s assigned glider truck would be expiring in
1
Throughout its appellate briefing, Wingra asserts that Gilbertson “refused” to see a
doctor. It is undisputed that Gilbertson did not see a doctor during his employment; however, as
mentioned above, it is also undisputed that Wingra never asked Gilbertson to see a doctor or to
provide medical evidence of his condition. LIRC found that Gilbertson declined to see a doctor
for purposes of initiating a worker’s compensation claim only after Sundby warned him that he
might be stuck with the medical bills if he could not prove that his assigned truck was causing his
physical problems. LIRC’s finding is consistent with the evidence in the record, and there is no
contrary evidence in the record.
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September 2013 and, when it expired, Gilbertson could start driving the requested
non-glider truck.
¶17 Around that same time, Wingra’s operations manager, Andy Balch,
spoke with Shea about Gilbertson’s condition and his request to be reassigned to a
non-glider truck. Balch told Shea that Gilbertson was complaining about foot pain
and ankle soreness that he attributed to pressing the accelerator pedal in his
assigned truck; that Gilbertson was having a difficult time pressing the accelerator
throughout his shifts; and that Gilbertson had asked to be reassigned to a different
truck.2
¶18 According to Shea’s testimony at the contested case hearing, he and
Balch decided to override Femrite’s decision to reassign Gilbertson to a non-glider
truck. Wingra had a longstanding policy of not allowing its drivers to switch truck
assignments, and Balch did not believe that there was a reason to deviate from that
policy. Shea further testified that, at the time Wingra denied Gilbertson’s
accommodation requests, he “saw no evidence” that Gilbertson’s claimed
impairment rose to the level of requiring a deviation from Wingra’s policy, but
Shea also acknowledged that Wingra never asked Gilbertson for any such
evidence. Shea testified that it is not Wingra’s “responsibility to draw medical
information out of our employees, healthy or injured.”
2
During the contested case hearing, Balch denied knowledge of Gilbertson’s physical
condition and accommodation requests, but he was impeached by his prior deposition testimony
and other evidence from the hearing. The administrative law judge determined that Balch was
not a credible witness, and LIRC accepted this determination about Balch’s credibility.
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No. 2021AP2028
¶19 On September 11, 2013, Gilbertson learned that he would not be
reassigned to the non-glider truck (Truck 51) as planned, and that he would have
to continue driving his assigned glider truck (Truck 56). Gilbertson emailed
Femrite asking her to reconsider a reassignment to Truck 51. He wrote:
It was discussed between us that you would not renew 56
… and [that you would] register 51 at the end of
September, which is when 56 expires, this way you were
not adding an extra truck to your fleet.…
A couple months ago I spoke with Greg Sundby
about my ongoing extreme soreness, as mentioned above.
The hours I work weekly and [the] fact is no secret [that]
the gliders are rough riding/operating compared to others,
and is contributing to my body pains. I have wanted to see
my doctor, but still have no health insurance at this time,
and [a reassignment to a non-glider truck] could be the
simple solution.
I’m asking you to reconsider.
One hour later, Gilbertson received Femrite’s response indicating that, per Balch’s
instructions, Wingra would not be reassigning him to a different truck.
¶20 Shortly thereafter, Gilbertson forwarded Femrite’s email to his union
steward, adding the following:
I do feel that Andy [Balch] is now discriminating based on
all the reason[s] we have discussed in the past months.
Body soreness has been brought to the attention of our
Safety and [Human Resources] person[nel] months ago ….
Many are well aware of the ride difference and health/body
problems the gliders create, when running long weekly
hours as we do, including Greg Sundby …. Some have
been moved to non-gliders for the same reason.
Gilbertson copied Shea, Balch, and Femrite on this email.
¶21 There is no evidence in the agency record that Wingra took any
action in response to this last email by Gilbertson. Nor is there any evidence that
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No. 2021AP2028
any Wingra representative ever told Gilbertson that his request for a reassignment
had been denied based on a lack of medical evidence establishing his need for an
accommodation. LIRC specifically found that Gilbertson “was not advised that
[Wingra] considered [the information] he had provided [about his condition or his
need for accommodation] to be inadequate.”
¶22 After learning that Balch had overridden Femrite’s decision to
reassign Gilbertson to a non-glider truck, Gilbertson altered a slogan on his
hardhat so that it made a derogatory statement about Balch. Specifically,
Gilbertson changed the slogan, which originally read “Don’t be a Dick,” to “Don’t
be an Andy.” When Balch observed Gilbertson’s hardhat, he became upset and
directed another driver, Phillip Woerpel, to tell Gilbertson to remove the
derogatory statement. Balch told Woerpel: “I know [Gilbertson] wants a different
truck, but as far as I’m concerned, fuck it. He can haul concrete in a
wheelbarrow.” Balch continued: “I don’t care how badly [Gilbertson’s] hurt,
he’ll drive [his assigned truck] until hell freezes over.”
¶23 Following the incident with the hardhat, Shea scheduled a
September 30, 2013 meeting with Gilbertson and Balch to discuss the breakdown
in their professional relationship. Gilbertson asked to have union representation at
the meeting, and Wingra responded that union representation was not needed.
During the meeting, Gilbertson mentioned that he was having trouble driving his
truck due to medical issues. Shea responded that he did not know “what
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No. 2021AP2028
[Gilbertson’s] condition is,” but that Wingra had “a great deal of investment in”
Gilbertson’s assigned truck and “need[s] to have it on the road.”3
¶24 On October 22, 2013, Gilbertson arrived at a job site but was
struggling to work due to pain. Gilbertson returned to Wingra’s office and placed
his time card, fuel card, and truck key on Sundby’s desk. Sundby asked
Gilbertson what was going on. Gilbertson responded, “You know,” and then
walked out of Sundby’s office. Sundby followed Gilbertson outside and said that
“he’d hate to see [Gilbertson] make a life changing decision” by quitting his job.
Gilbertson responded that he “never wanted to quit” and was “just asking for help”
so that he could “operate [his truck] safely.”
¶25 Sundby told Gilbertson that he would try to contact Shea, who was
on vacation, and that Sundby would see what he could do to get Gilbertson into a
3
As stated, LIRC expressly found that, during the September 30 meeting, Gilbertson
mentioned that he was having problems driving his assigned truck due to medical issues. Wingra
asserts that this finding is not supported by any record evidence, but this assertion is incorrect.
To support its assertion that LIRC’s finding is erroneous, Wingra quotes a portion of
Gilbertson’s testimony, but it ignores other testimony that provides the record support for LIRC’s
finding. In the quoted portion, Gilbertson was asked whether there had been “no conversation” at
the September 30 meeting “about [Wingra’s] failure to reassign him” to a non-glider truck, and
Gilbertson responded “correct.” However, based on other portions of the transcript, LIRC
appears to have interpreted Gilbertson to mean that there had not been any meaningful
conversation about Wingra’s failure to reassign him to another truck, but that Gilbertson’s
medical issues were mentioned, albeit briefly, during the meeting. More specifically, Gilbertson
testified that his back pain “did come up” during the meeting, but that Shea “cut it off quickly,”
responding “I don’t know what your condition is” and immediately switching the topic to
Wingra’s business needs. At another point, Gilbertson testified that his request to be transferred
to a different truck “came up” at the September 30 meeting, but that Shea “quickly diverted” the
discussion to Wingra’s business needs. Wingra fails to support its challenge to LIRC’s finding of
fact.
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No. 2021AP2028
non-glider truck. Sundby handed Gilbertson his cards and key and told Gilbertson
to let a dispatcher know that he was going home because he was in pain.
¶26 Gilbertson was scheduled to work at 7:30 a.m. the following day,
October 23, 2013, but he did not report to work. Gilbertson called Sundby at
9:30 a.m. to see if Sundby had spoken with Shea about reassigning him to a non-
glider truck. During this conversation, Gilbertson told Sundby that he would have
to file a worker’s compensation claim if he could not be reassigned to a different
truck.
¶27 That afternoon, Gilbertson sent an email to Sundby, stating in
relevant part:
To recap what has been discussed on 10/22 and 10/23/13. I
turned my keys for truck 56, fuel and time card into you
[after] working only 2 hours. We discussed the reason, my
… accumulative body soreness, and no efforts of getting
me into a non-glider.… We also discussed what was said
in my meeting with Bob Shea recently, Bob indicated that
he wants to keep me in the glider, due to the great deal of
resources he has invested, ignoring my well-being and
safety of others. You mentioned you don’t have approval
to do so, but you would work on it, and also handed me all
items back … telling me not to quit and to take some time
to think about it. (I agreed) Then you would see if you can
get me into 51 or [an]other non-glider truck, but it might
take a couple days to get approval, since Bob is out of
town. I mentioned this morning I’m willing to come to
work today, if you can put me into … [an]other non-glider
that is not being used, until 51 or [an]other can be assigned
to me, you again indicated you don’t have approval to do
so. We both agreed it makes sense to try this first as
planned by Amber [Femrite] to aid in my accumulative
condition. If this is not considered, I will need to move
forward as discussed and file a [worker’s compensation]
injury claim to seek medical attention (which may be
needed anyway, if after operating a non-glider for a period
of time doesn’t aid in recovery.)
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¶28 After receiving this email, Sundby sent the following email to Shea:
Sorry to bother you on vacation. Mr. Gilbertson was told
NOT to send e-mail messages anymore. Evidently that did
not register with him. As badly as we need drivers, my
decision would be to call him back and say that he is
absolutely NOT getting a new truck, and that based on my
conversation with him yesterday, we are accepting his
resignation. I’m a little taken back by the threats. We can
address the worker’s compensation issue as it unfolds.
P.S[.] I did not AGREE to anything with him. He is not at
work today, and I would like to resolve this before he has a
change of heart.
Shea agreed with Sundby’s recommendations.
¶29 Sundby called Gilbertson and told him that he would not be
reassigned to a non-glider truck; that Wingra was accepting Gilbertson’s
resignation; and that Wingra would send Gilbertson written confirmation that his
employment had ended. Gilbertson told Sundby that he was not quitting. He later
emailed Sundby, stating that he would not sign the resignation papers that had
been prepared for him, and that he was available to work if Sundby could “place
[him] in a non-glider to aid in [his] recovery.”
¶30 Gilbertson did not return to his employment with Wingra after
October 23, 2013. Despite attempts to find other employment, Gilbertson
remained unemployed from late October 2013 until April 2018, when he accepted
a position with a different employer.
¶31 Immediately following his separation of employment from Wingra,
Gilbertson saw a doctor for the first time to address his pain. He first saw a
primary care physician on or about October 28, 2013.
¶32 In July 2014, Gilbertson sought treatment from a chiropractor who
diagnosed Gilbertson with chronic lower back pain due to multilevel degenerative
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No. 2021AP2028
disc disease, right sciatic radiculopathy and right foot drop, and right sacroiliac
joint dysfunction. The chiropractor assigned Gilbertson a seven percent
permanent partial disability rating and issued a set of job restrictions.
¶33 Then in 2017, Gilbertson sought treatment from a spine specialist,
Dr. Greenberg, who examined Gilbertson; reviewed his medical history; and
reviewed the medical imaging he received in December 2013 and June 2015.
Dr. Greenberg opined that Gilbertson suffered from several permanent physical
impairments, including chronic pain syndrome, centralized pain syndrome,
multilevel lumbar degenerative disc disease and stenosis, and lumbar radiculitis,
and that Gilbertson’s disability began in 2013, while he was employed by Wingra.
Dr. Greenberg assigned Gilbertson a 10 percent permanent partial disability rating
and opined that, had Wingra reassigned Gilbertson to a non-glider truck, the
reassignment would have alleviated Gilbertson’s pain symptoms such that he
would have been able to perform the work of a ready-mix truck driver.
Procedural History
¶34 This case has a lengthy procedural history. Gilbertson filed his first
complaint with the state department of workforce development, equal rights
division, in February 2014. Gilbertson alleged that Wingra refused to reasonably
accommodate his disability, which resulted in the termination of his employment.
¶35 A department investigator was assigned to the case and, in
February 2015, the investigator issued an initial determination that there was no
probable cause that Wingra violated the Act. Gilbertson appealed and, in
November 2015, a probable cause hearing was held before an administrative law
judge, who dismissed the complaint for lack of probable cause. Gilbertson
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appealed that determination to LIRC, which reversed the administrative law
judge’s dismissal order in January 2017.4
¶36 An administrative law judge held a hearing on the merits of
Gilbertson’s employment discrimination claims in September 2018 and issued a
written decision in August 2019. According to the administrative law judge,
Gilbertson established through credible evidence that he was an individual with a
disability; that Wingra failed to accommodate that disability even though doing so
would impose no hardship; and that Wingra terminated his employment.
However, the administrative law judge determined that Wingra did not know
whether Gilbertson’s condition was a permanent disability during the term of his
employment, and therefore, Gilbertson had not established that Wingra violated
the Act.
¶37 Gilbertson appealed to LIRC in August 2019, which ultimately
resulted in the decision that is the subject of our review. In summary and as
further discussed below, LIRC concluded that Wingra violated the Act by refusing
to reasonably accommodate Gilbertson’s disability. It determined that Gilbertson
is an individual with a disability, and that he had the disability at the time he was
employed by Wingra. LIRC found that Gilbertson notified Wingra of the physical
issues that he was experiencing; that he requested an accommodation to address
those issues; and that, based on the information Gilbertson had provided, Wingra
4
Gilbertson filed a second complaint in March 2017, which alleged additional
discrimination claims. Specifically, he alleged that Wingra discriminated and retaliated against
him by refusing to rehire him as a ready-mix truck driver. LIRC ultimately determined that
Gilbertson failed to prove these claims and Gilbertson does not appeal this determination. We
discuss the allegations in the second complaint no further.
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No. 2021AP2028
should have been on notice that he was making a disability accommodation
request. LIRC concluded that Gilbertson’s requests triggered Wingra’s duty to
provide an accommodation—or at least to request further information from
Gilbertson—but that Wingra “immediately and categorically” denied the request
for business reasons. LIRC found that reassignment to a non-glider truck would
have been an available accommodation, and it determined that it would have been
a reasonable one. LIRC concluded that a reassignment would have permitted
Gilbertson to remain employed as a ready-mix truck driver; that Wingra could
have provided such an accommodation without hardship to its business; and that
Wingra did not deny the request based on a belief that Gilbertson did not have a
disability.
¶38 LIRC also determined that Gilbertson did not voluntarily resign his
employment with Wingra, and that Wingra terminated his employment on
October 23, 2013. After resolving the parties’ dispute about whether Gilbertson
adequately mitigated his damages, LIRC awarded Gilbertson back pay from
October 23, 2013. It also awarded attorney fees in the amount of $162,125 and
costs in the amount of $12,510.
¶39 Wingra timely petitioned for review in the circuit court, which
affirmed LIRC’s order. Wingra appeals.
DISCUSSION
¶40 On appeal, we review the decision of the administrative agency
rather than the decision of the circuit court. Estate of Szleszinski v. LIRC, 2007
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WI 106, ¶22, 304 Wis. 2d 258, 736 N.W.2d 111. Our review is governed by WIS.
STAT. § 111.395 (2021-22),5 which provides that “[f]indings and orders of the
[C]ommission under this subchapter are subject to review under ch. 227.” Under
WIS. STAT. § 227.57, we will affirm LIRC’s decision unless Wingra establishes
grounds for setting aside or modifying the decision, or for remanding to LIRC for
further proceedings. See § 227.57(2), (5), (6), (8).
¶41 Our review of LIRC’s factual findings is limited. Wisconsin Bell,
Inc. v. LIRC, 2018 WI 76, ¶30, 382 Wis. 2d 624, 914 N.W.2d 1. If LIRC’s
decision depends on any fact that it found in a contested case proceeding, we will
not substitute our own judgment “as to the weight of the evidence on any disputed
finding of fact.” Id. (quoting WIS. STAT. § 227.57(6)). We will set aside the
decision or remand to LIRC based on a factual deficiency only if the decision
“depends on any finding of fact that is not supported by substantial evidence in the
record.” Id. (quoting § 227.57(6)). “Substantial evidence does not mean a
preponderance of the evidence”—it instead means that, “after considering all
evidence of record, reasonable minds could arrive at the [same] conclusion.” Id.
(quoting Milwaukee Symphony Orchestra, Inc. v. DOR, 2010 WI 33, ¶31, 324
Wis. 2d 68, 781 N.W.2d 674). In other words, we will not set aside any of LIRC’s
findings of fact unless a reasonable fact finder “could not have [made those
findings] from all of the evidence [in the record], including the available
inferences from that evidence.” Milwaukee Symphony Orchestra, Inc., 324
Wis. 2d 68, ¶31 (superseded by statute on other grounds).
5
All references to the Wisconsin Statutes are to the 2021-22 version.
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¶42 By contrast, we will not defer to LIRC’s conclusions of law. Tetra
Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶3, 84, 382 Wis. 2d 496, 914 N.W.2d 21.
Although we give “due weight” to LIRC’s experience, technical competence, and
specialized knowledge as we consider its arguments, we review LIRC’s legal
conclusions de novo, including its interpretation and application of statutes.6 Id.If we conclude that LIRC “has erroneously interpreted a provision of law,” we will
set aside or modify its decision if “a correct interpretation compels a particular
action,” or we will remand the matter to LIRC “for further action under a correct
interpretation of the provision of law.” Wisconsin Bell, Inc., 382 Wis. 2d 624,
¶29 (quoting WIS. STAT. § 227.57(5)).
6
Throughout the briefing, the parties direct us to LIRC’s prior decisions regarding the
Wisconsin Fair Employment Act, and Wingra’s brief refers to some of these decisions as
establishing LIRC’s “precedent” and “settled application” of the Act. This framing is inapt.
Decisions by state administrative agencies have never been considered to be binding precedent,
and a recent decision by our supreme court ended the practice of giving any measure of deference
to an agency’s conclusions of law. Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶¶3, 84, 382 Wis.
2d 496, 914 N.W.2d 21. An agency’s interpretation and application of a statute is not “settled”
unless and until it has been incorporated into a published decision of an appellate court. See
Wisconsin Bell, Inc. v. LIRC, 2018 WI 76, ¶43, 382 Wis. 2d 624, 914 N.W.2d 1 (rejecting a
“long-standing practice” by LIRC because it was not consistent with our supreme court’s
interpretation of the Act). We have therefore considered the parties’ citations to LIRC’s prior
decisions only when appropriate for purposes of giving due weight to LIRC’s experience,
technical competence, and specialized knowledge as we consider its arguments. Tetra Tech EC,
Inc., 382 Wis. 2d 496, ¶¶3, 84.
Separately, the parties also cite a number of federal decisions interpreting the federal
Americans with Disabilities Act (the ADA). Although Wisconsin courts may consider federal
precedent when interpreting the Wisconsin Fair Employment Act, the language of the ADA and
the Act differs in some significant respects, and Wisconsin courts are not bound by interpretations
of the ADA when interpreting our own anti-discrimination laws. See Hamilton v. DILHR, 94
Wis. 2d 611, 620 n.4, 288 N.W.2d 857 (1980); Crystal Lake Cheese Factory v. LIRC, 2003 WI
106, ¶46, 264 Wis. 2d 200, 664 N.W.2d 651. Accordingly, we consider the parties’ citations to
federal decisions only to the extent they provide helpful guidance for our independent
interpretation of the Act, and only if the decisions do not conflict with the Wisconsin legislature’s
intent in enacting the Act. Marten Transp., Ltd. v. DILHR, 176 Wis. 2d 1012, 1020-21, 501
N.W.2d 391 (1993).
17
No. 2021AP2028
¶43 In this case, Wingra asserts that LIRC erred in concluding that
Wingra violated the Act by refusing to reasonably accommodate Gilbertson’s
disability. Wingra also challenges LIRC’s determination that it terminated
Gilbertson’s employment, and it argues that LIRC should have found that
Gilbertson voluntarily resigned. Finally, Wingra takes issue with various aspects
of LIRC’s award of back pay and attorney fees.
¶44 To provide a framework for our discussion, we begin by briefly
summarizing Wisconsin law governing employment discrimination on the basis of
disability. We then address Wingra’s arguments in turn.
I. Disability Discrimination Under the Act
¶45 The Wisconsin Fair Employment Act, WIS. STAT.
§§ 111.31-111.395, addresses “the practice of unfair discrimination in
employment against properly qualified individuals.” See § 111.31(1); see also
§§ 111.321, 111.325. One stated purpose of the Act is to “encourage and foster to
the fullest extent practicable the employment of all properly qualified individuals,”
and ambiguous provisions in the Act “shall be liberally construed for the
accomplishment of this purpose.” See § 111.31(3); see also McMullen v. LIRC,
148 Wis. 2d 270, 275, 434 N.W.2d 830 (Ct. App. 1998); Amazon Logistics, Inc.
v. LIRC, 2023 WI App 26, ¶¶25-26, 407 Wis. 2d 807, __N.W.2d __.
¶46 The Act begins with a general prohibition against “act[s] of
employment discrimination” on the basis of certain characteristics identified in
18
No. 2021AP2028
WIS. STAT. § 111.321.7 Throughout this opinion, we refer to these statutorily
enumerated characteristics as “protected characteristics,” and to individuals with
those protected characteristics as belonging to a “protected class.” See Wisconsin
Bell, Inc., 382 Wis. 2d 624, ¶33 (using the term “protected class” in reference to
classes of individuals protected by § 111.321); Racine Unified Sch. Dist. v. LIRC,
164 Wis. 2d 567, 595, 476 N.W.2d 707 (Ct. App. 1991) (same). One protected
characteristic is disability, and individuals with disabilities belong to a protected
class.
¶47 There are two separate statutory sections, WIS. STAT. § 111.322 and
WIS. STAT. § 111.34, that identify different prohibited “acts of employment
discrimination” on the basis of disability.
¶48 The first such section, WIS. STAT. § 111.322, is titled
“Discriminatory actions prohibited.”8 That section applies generally to all of the
7
See WIS. STAT. § 111.321 (“Subject to ss. 111.33 to 111.365, no employer … may
engage in any act of employment discrimination as specified in s. 111.322 … on the basis of age,
race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction
record, military service, use or nonuse of lawful products off the employer’s premises during
nonworking hours, or declining to attend a meeting or to participate in any communication about
religious matters or political matters.”).
8
WISCONSIN STAT. § 111.322 provides in relevant part:
Subject to ss. 111.33 to 111.365, it is an act of
employment discrimination to do any of the following:
(1) To refuse to hire, employ, admit or license any
individual, to bar or terminate from employment or labor
organization membership any individual, or to discriminate
against any individual in promotion, compensation or in terms,
conditions or privileges of employment or labor organization
membership because of any basis enumerated in s. 111.321.
19
No. 2021AP2028
protected characteristics enumerated in WIS. STAT. § 111.321 (which, as
mentioned, includes disability). It identifies certain adverse employment actions
(such as termination from employment and refusing to hire or promote) that, when
taken on the basis of a protected characteristic, constitute “act[s] of employment
discrimination.” See § 111.321. As pertinent here, § 111.322(1) states that it is an
act of employment discrimination “to … terminate from employment … any
individual … because of any basis enumerated in s. 111.321.”
¶49 The second such section, WIS. STAT. § 111.34, is titled “Disability;
exceptions and special cases.”9 Section 111.34 sets forth additional acts of
employment discrimination that specifically pertain to individuals with
disabilities, and it also sets forth certain defenses to disability discrimination
claims. As pertinent here, § 111.34(1)(b) states that “[e]mployment discrimination
9
WISCONSIN STAT. § 111.34 provides in relevant part:
(1) Employment discrimination because of disability
includes, but is not limited to:
(a) Contributing a lesser amount to the fringe benefits,
including life or disability insurance coverage, of any employee
because of the employee’s disability; or
(b) Refusing to reasonably accommodate an employee’s
or prospective employee’s disability unless the employer can
demonstrate that the accommodation would pose a hardship on
the employer’s program, enterprise or business.
WISCONSIN STAT. § 111.34(2)(a) goes on to provide that, notwithstanding WIS. STAT.
§ 111.322, “it is not employment discrimination because of disability” to take an action
enumerated in § 111.322(1) “if the disability is reasonably related to the individual’s ability to
adequately undertake the job-related responsibilities of that individual’s employment,” and
§ 111.34(2)(b) and (c) identify factors to consider in evaluating whether any employee can
“adequately undertake the job-related responsibilities of a particular job.” We do not address
these paragraphs further because Wingra does not rely on § 111.34(2) to defend against
Gilbertson’s claim.
20
No. 2021AP2028
because of disability includes, but is not limited to: [r]efusing to reasonably
accommodate an employee’s … disability.”
¶50 Based on these statutory provisions, Wisconsin cases recognize two
distinct theories of disability-based employment discrimination that are pertinent
to our analysis of this case: disparate treatment and refusal to accommodate.10
Contrast Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶33 (addressing the “disparate
treatment theory” of disability discrimination) with id., ¶53 n.22 (acknowledging
that an employer’s refusal to accommodate an employee’s disability is a separate
theory, which the employee and Wisconsin Bell declined to pursue on appeal).
Under a disparate-treatment-based theory, the crux of the claim is that the
employer treated the employee less favorably than others because the employee
has a disability. See id., ¶33 (citing Racine Unified Sch. Dist., 164 Wis. 2d at
595). By contrast, under an accommodation-based theory, the crux of the claim is
that the employer could have reasonably accommodated the employee’s disability
but refused to do so. See Hutchinson Tech., Inc. v. LIRC, 2004 WI 90, ¶¶20-36,
273 Wis. 2d 394, 682 N.W.2d 343; see also Wisconsin Bell, Inc., 382 Wis. 2d
624, ¶53 n.22.
¶51 Although these are two distinct theories of liability, an employer’s
failure to accommodate an employee’s disability often goes hand in hand with an
10
This dichotomy is similar to one found in federal cases interpreting the ADA. See,
e.g., Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 682, 683 (7th Cir. 2014) (separately
addressing an employee’s reasonable accommodation claim and his disparate treatment claim);
see also EEOC Guidance CM-604 Theories of Discrimination, https://www.eeoc.gov/
laws/guidance/cm-604-theories-discrimination.
21
No. 2021AP2028
adverse employment action such as a discharge from employment.11 See
Hutchinson Tech., Inc., 273 Wis. 2d 394, ¶35; see also Stoughton Trailers, Inc.
v. LIRC, 2007 WI 105, ¶23, 303 Wis. 2d 514, 735 N.W.2d 477; Crystal Lake
Cheese Factory v. LIRC, 2003 WI 106, ¶¶10, 13, 264 Wis. 2d 200, 664 N.W.2d
651; Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998).
In such cases, it is not always clear whether the employee’s employment
discrimination case should be characterized as a single claim based on the
employer’s refusal to accommodate the employee’s disability, a single claim based
on a discriminatory adverse employment action, or two separate claims, one for
refusal to accommodate and a second for a discriminatory adverse employment
action.
¶52 In situations like this one, in which the employee claims that the
employer refused to accommodate the employee’s disability prior to taking the
adverse employment action, our supreme court has analyzed the employee’s cause
of action based on a refusal to accommodate theory.12 See Hutchinson Tech.,
We have not identified any Wisconsin appellate opinion in which an employer’s
11
refusal to accommodate an employee’s disability did not also involve an adverse employment
action enumerated in WIS. STAT. § 111.322, such as a discharge from employment. This case
does not involve an issue that has arisen under the ADA—whether an employer’s refusal to
accommodate an employee’s disability is actionable if it is not followed by one of the adverse
employment actions that are enumerated in § 111.322 and the employee does not seek the
remedies available for such adverse employment actions, such as reinstatement and back pay.
Compare EEOC v. AutoZone, Inc., 630 F.3d 635, 638 n. 1 (7th Cir. 2010) (an adverse
employment action is not required to prove a failure to accommodate claim) with Fenney v.
Dakota, Minnesota & E. R.R. Co., 327 F.3d 707, 716-17 (8th Cir. 2003) (requiring proof of an
adverse employment action as a part of employee’s prima facie failure to accommodate claim).
12
Cf. Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶53 n.22 (providing that, in cases in which
the employee does not claim that the employer refused to accommodate the employee’s disability
prior to the adverse employment action, the claim is analyzed as a disparate treatment claim).
22
No. 2021AP2028
Inc., 273 Wis. 2d 394, ¶¶20-36; Crystal Lake Cheese Factory, 264 Wis. 2d 200,
¶¶1-3. Back pay is an available remedy in such cases, provided that it is necessary
to make the employee whole. See WIS. STAT. § 111.39(4)(c) (back pay can be
awarded if an employer “has engaged in discrimination” and back pay “will
effectuate the purpose” of the Act); see also Crystal Lake Cheese Factory, 264
Wis. 2d 200, ¶16 n.6.
¶53 In such cases, when the employer’s refusal to accommodate is
followed by an adverse employment action enumerated in WIS. STAT. § 111.322
and the employee seeks a remedy for that adverse employment action, our cases
establish that the employee has the initial burden to prove that the employee is an
“individual with a disability” within the meaning of WIS. STAT. § 111.32(8), id.,
¶42; that the employer took one of the actions enumerated in § 111.322(1), id.; and
that a reasonable accommodation was available that the employer refused to
provide, Hutchinson Technology, Inc., 273 Wis. 2d 394, ¶35. If the employee
proves the above elements, the burden shifts to the employer to prove a defense
under WIS. STAT. § 111.34(1)(b) or (2)(a)—that making an accommodation would
pose a hardship on the employer’s program, enterprise, or business; or that, even
with reasonable accommodation, the employee would be unable to undertake the
job-related responsibilities of their employment. Crystal Lake Cheese Factory,
264 Wis. 2d 200, ¶43; Hutchinson Tech., Inc., 273 Wis. 2d 394, ¶35.
II. Wingra’s Arguments About WIS. STAT. § 111.34(1)(b)
¶54 With this framework in mind, we turn to Wingra’s challenge to
LIRC’s conclusion that it violated WIS. STAT. § 111.34(1)(b). Wingra contends
that, under the factual circumstances of this case, it did not have an obligation to
accommodate Gilbertson’s disability and cannot be liable for failing to do so.
23
No. 2021AP2028
Wingra advances various arguments to support this contention, but they are all
variations on a single theme—the fact that Gilbertson was not diagnosed with a
disability until 2014, after his employment with Wingra had ended, forecloses any
liability Wingra could have for refusing to accommodate his disability. This is
because, Wingra contends, “the absence of any medical information or
documentation forecloses a conclusion that either Gilbertson or Wingra was aware
of Gilbertson’s disability during his employment.”
¶55 To this end, Wingra’s specific arguments are as follows. First,
Wingra argues that LIRC erred in concluding that Gilbertson was an “individual
with a disability” at the time he was employed by Wingra because Gilbertson did
not have a disability diagnosis at that time. Second, Wingra argues that an
employer’s “discriminatory intent” is an element in refusal-to-accommodate cases
such as this, and that Wingra lacked such intent because it was not presented with
a contemporaneous diagnosis or other contemporaneous medical evidence.
Therefore, Wingra contends, it could not have known that Gilbertson was disabled
and required an accommodation. Separately, Wingra also challenges LIRC’s
determination that it terminated Gilbertson’s employment, and we discuss that
challenge in section III of this opinion.
A. Individual With a Disability
¶56 As stated, the first element that an employee must prove in a
disability discrimination case is that the employee is an “individual with a
disability,” as that term is defined by WIS. STAT. § 111.32(8). Wingra challenges
LIRC’s conclusion that Gilbertson met his burden to prove this element.
¶57 WISCONSIN STAT. § 111.32(8) defines an “individual with a
disability” as “an individual who: (a) Has a physical or mental impairment which
24
No. 2021AP2028
makes achievement unusually difficult or limits the capacity to work; (b) Has a
record of such impairment; or (c) Is perceived as having such an impairment.”
Whether an employee is an “individual with a disability” is a question of law that
we review de novo, Hutchinson Technology, Inc., 273 Wis. 2d 394, ¶10, but we
will uphold the factual findings LIRC made in support of this legal conclusion if
the findings are supported by substantial evidence, La Crosse Police and Fire
Commission v. LIRC, 139 Wis. 2d 740, 765, 407 N.W.2d 510 (1987).
¶58 As our supreme court has explained, an employee must make two
showings to prove that the employee has a disability within the meaning of the
Act. Hutchinson Tech., Inc., 273 Wis. 2d 394, ¶15. First, the employee must
demonstrate that they have an actual or perceived impairment, meaning an actual
or perceived “lessening, or deterioration or damage to a normal bodily function or
bodily condition” or “the absence of such [a normal] bodily function or bodily
condition.” Id., ¶¶15-16 (citing La Crosse Police and Fire Comm’n, 139 Wis. 2d
at 761). Second, the employee must demonstrate that this impairment “makes, or
is perceived as making, achievement unusually difficult or limits [the employee’s]
capacity to work.” Hutchinson Tech., Inc., 273 Wis. 2d 394, ¶15. An
impairment makes “achievement unusually difficult” if it substantially limits
normal life functions or major life activities, and an impairment “limits the
capacity to work” if it limits the employee’s capacity to perform the job in
question. Id., ¶17.
¶59 Additionally, in a decision that was issued the year after Hutchinson
Technology, this court stated that, under WIS. STAT. § 111.32(8), the employee’s
impairment must be “permanent.” See Erickson v. LIRC, 2005 WI App 208,
¶¶15-16, 287 Wis. 2d 204, 704 N.W.2d 398. Although no permanency
requirement was set forth in Hutchinson Technology, and although imposing such
25
No. 2021AP2028
a requirement would add language to the statute’s definition, none of the parties in
this case have questioned the correctness of the Erickson court’s legal conclusion.
For purposes of this opinion, we assume without deciding that the interpretation of
§ 111.32(8) that emerged from Erickson is correct.13
¶60 Here, based on Gilbertson’s testimony and the undisputed medical
evidence presented during the contested case hearing, LIRC determined that
Gilbertson currently has a disability, as that term is defined by WIS. STAT.
§ 111.32(8)(a), and also that “he had that disability at the time he worked for
[Wingra].” More specifically, LIRC found that Gilbertson “has a variety of
physical impairments related to his spine, including but not limited to degenerative
disc disease,” which is “a permanent disabling condition.” LIRC found that, at the
time he worked for Wingra, those impairments substantially interfered with his
ability to perform everyday functions and substantially limited his capacity to
13
The Erickson court’s conclusion that WIS. STAT. § 111.32(8) imposes a permanency
requirement was based on the court giving great weight deference to LIRC’s prior interpretations
of that statute and the doctrine of legislative acquiescence. Erickson v. LIRC, 2005 WI App 208,
¶¶15-18, 287 Wis. 2d 204, 704 N.W.2d 398. The Erickson court’s analysis was limited to the
following:
For over twenty years, [LIRC] has interpreted the term
“disability” within the [Act] to require a permanent impairment.
Had our legislature considered this an inappropriate reading of
the statute, it could have revised the language to include
temporary impairments. We will not impose a new
interpretation where our legislature has seen fit to let the
statutory language, as applied by [LIRC], stand.
Id., ¶16. We observe that the Erickson court’s method of interpreting the statute would no longer
be tenable under Wisconsin law. See Tetra Tech EC, Inc., 382 Wis. 2d 496, ¶¶3, 84 (abandoning
the practice of giving deference to agencies’ legal conclusions); see also Amazon Logistics, Inc.
v. LIRC, 2023 WI App 26, ¶130, 407 Wis. 2d 807, ___ N.W.2d ___ (explaining that the
legislative acquiescence doctrine does not apply to legislative inaction following an
administrative agency’s interpretation of a statute).
26
No. 2021AP2028
work for Wingra. Based on all of these findings, LIRC concluded that Gilbertson
was an individual with a disability during his employment, even though he was not
examined by a medical professional and did not receive a disability diagnosis until
after his employment with Wingra had come to an end. In reaching this
conclusion, LIRC rejected Wingra’s argument that an employee must have had a
disability diagnosis at the time of the alleged act of employment discrimination to
establish that the employee is an “individual with a disability” under
§ 111.32(8)(a).
¶61 Wingra does not challenge the majority of these factual and legal
determinations on appeal. It does not challenge LIRC’s determination that
Gilbertson currently has a disability, as defined under WIS. STAT. § 111.32(8)(a).
Nor does Wingra challenge LIRC’s determination that, at the time Gilbertson was
employed by Wingra, he had permanent physical impairments that made
achievement unusually difficult and limited his capacity to work.
¶62 Wingra’s sole challenge is to LIRC’s conclusion that, to satisfy the
employee’s burden of proof under WIS. STAT. § 111.32(8)(a) at the contested case
hearing, an employee is not required to have obtained a disability diagnosis
contemporaneously to the alleged act of employment discrimination. Wingra
contends that Gilbertson must prove that he had a disability at the time he was
employed by Wingra, and that he cannot do so because he did not have a diagnosis
that confirmed his disability at that time.
¶63 We agree with Wingra in one limited sense—at the contested case
hearing, Gilbertson was required to prove that he had a disability at the time he
was employed by Wingra.
27
No. 2021AP2028
¶64 However, Wingra’s argument that a contemporaneous diagnosis was
required to satisfy that burden of proof does not square with any statutory
language in the Act. As discussed, WIS. STAT. § 111.32(8) provides three
definitions of disability, and the definition at issue in this case is a “physical or
mental impairment” that “makes achievement unusually difficult or limits the
capacity to work.” See § 111.32(8)(a). The unambiguous language of
paragraph (8)(a) does not require an impairment to be diagnosed at the time the
employee is employed in order to satisfy the employee’s burden at the evidentiary
hearing.
¶65 Wingra makes two general arguments in support of its position that,
despite the statutory language, a contemporaneous diagnosis is required. Wingra
first cites to Erickson, which states that, in at least some cases, an employee must
present competent medical evidence of an impairment during a contested case
hearing.14 See Erickson, 287 Wis. 2d 204, ¶¶17-19. This aspect of Erickson
lends no support to Wingra’s argument. Erickson discusses what an employee
must do to satisfy the employee’s burden of proof at a contested case hearing
(which, in many cases, will occur after the employment has ended). See id., ¶18
(concluding that Erickson was not an individual with a disability because he
presented “no medical evidence on his behalf, either in the form of physician
testimony or competent medical records” at the contested case hearing). Here,
Gilbertson satisfied his burden of proof at the contested case hearing by presenting
14
Erickson involved a situation in which the physical limitations caused by back pain
might or might not have constituted a disability as that term has been defined by LIRC. There
could be other situations in which an employee’s disability is so obvious that no medical evidence
is required.
28
No. 2021AP2028
the undisputed medical evidence summarized above. Erickson does not stand for
the proposition that an employee must have presented medical evidence to their
employer during the term of their employment to qualify as “an individual with a
disability” as defined by WIS. STAT. § 111.32(8).15
¶66 Wingra also argues that, because only a medical provider can
determine whether an employee’s impairment is permanent, neither Wingra nor
Gilbertson could have known at the time of his employment whether his “alleged
lower body pain” was a temporary symptom or a permanent condition constituting
a disability. And Wingra cites Wisconsin Bell for the proposition that an
employer must be aware of the causal connection between an employee’s
symptoms and the employee’s disability to be liable for terminating the employee
because of their disability. See Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶¶41, 44,
50.
¶67 The premise underlying Wingra’s argument—that an employer must
have known that the employee had a disability for the employee to meet the
employee’s initial burden of proof under WIS. STAT. § 111.32(8)(a)—is
unfounded. Wingra points to no case that has considered an employer’s
knowledge when assessing whether an employee met their burden of proof on this
element at the evidentiary hearing. An employer’s knowledge may be relevant
when assessing whether an employer refused to reasonably accommodate an
employee’s disability, as we discuss in the following section of this opinion, but it
15
Wingra also cites to prior decisions by LIRC, but the majority of these agency
decisions stand for the unremarkable proposition that, if the employee cannot prove their
disability at the contested case hearing, the employee cannot recover for disability discrimination
under the Act.
29
No. 2021AP2028
is not relevant to an assessment of whether the employee is an individual with a
disability.
¶68 For all of these reasons, we conclude that LIRC did not erroneously
interpret any provision of law when it determined that Gilbertson proved he had a
disability during his employment with Wingra based on evidence that was created
by a medical professional after his employment had ended.
B. Refusal to Reasonably Accommodate
¶69 We now turn to LIRC’s conclusion that Wingra refused to
reasonably accommodate Gilbertson’s disability. Wingra’s arguments concern the
knowledge and level of certainty an employer must have before it faces potential
liability for refusing to accommodate an employee’s disability, and whether
Wingra possessed the requisite knowledge in this case.
¶70 More specifically, Wingra first argues that proof of discriminatory
intent is required in all discrimination cases, including refusal-to-accommodate
cases, and that LIRC erred in concluding otherwise. It further argues that an
employer does not “refuse” to accommodate an employee’s disability unless the
employer knows that the employee is an individual with a disability as that term is
defined in the Act. Wingra argues that, for an employer to possess such
knowledge, the employee must present the employer with competent medical
evidence in the form of a disability diagnosis alongside any accommodation
request. Wingra contends that, if the employee does not provide such evidence,
the employer is not legally required to provide an accommodation. We address
Wingra’s arguments in turn.
30
No. 2021AP2028
1. Discriminatory Intent
¶71 We begin with Wingra’s argument about discriminatory intent.
Wingra takes issue with LIRC’s determinations that refusal-to-accommodate cases
under WIS. STAT. § 111.34(1)(b) do not “require a finding of discriminatory
motivation or intent,” and that Wingra’s “lack of deliberate intent to discriminate
does not provide a defense” to Gilbertson’s claim.
¶72 Before considering Wingra’s arguments on this point, we pause to
consider the meaning of the term “discriminatory intent.” The parties do not
define the term in their briefing and, at times, they appear to use that term
imprecisely.
¶73 Wisconsin cases use the term “discriminatory intent” when
addressing disparate treatment claims under WIS. STAT. § 111.322(1). See
Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶33 (citing Racine Unified Sch. Dist., 164
Wis. 2d at 594-95). In a disparate treatment claim, the employee must establish
that their employer treated them less favorably than others by taking an adverse
employment action identified in § 111.322(1) “because of” the employee’s
protected characteristic. Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶34. Our cases
sometimes use the term “discriminatory intent” (or sometimes “discriminatory
animus”) as shorthand to refer to the requirement that an adverse employment
action was taken “because of” a protected characteristic. Id., ¶¶33, 34.
¶74 To show that an employer took an adverse employment action
“because of” an employee’s protected characteristic, the employee must show that
the employer was aware that the employee belonged to a protected class. Id., ¶33;
see also id., ¶37 (“Ignorance of an employee’s disability must certainly foreclose a
finding of intentional discrimination.”). Additionally, the employee must show
31
No. 2021AP2028
that the adverse employment action was motivated, at least in part, by their
protected characteristic. See Hoell v. LIRC, 186 Wis. 2d 603, 608-609, 522
N.W.2d 234 (Ct. App. 1994) (describing the in-part standard, its application in
mixed motive cases, and the remedies available in such cases). Accordingly,
“discriminatory intent” has two facets that must be present at the time of the
adverse employment action—the employer’s awareness of an employee’s
protected characteristic, and also its motivation to act based on the protected
characteristic. Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶¶44, 51.
¶75 Although Wingra argues that LIRC erroneously concluded that an
employer’s lack of “discriminatory intent” is not a defense to a refusal-to-
accommodate claim, Wingra’s arguments solely concern the awareness facet of
discriminatory intent. That is, Wingra contends that an employer is not “capable
of intentional discrimination” if the employer does not know that the employee has
a disability.
¶76 To the extent that Wingra’s argument is confined to the awareness
facet of discriminatory intent, we agree with the general proposition that an
employer must have some level of awareness of an employee’s disability and need
for accommodation before the employer can be liable for refusing to reasonably
accommodate the employee’s disability. That requirement is baked into the
statutory language. WISCONSIN STAT. § 111.34(1)(b) is directed at those
employers who “refuse” to accommodate an employee’s disability, not those who
merely “fail” to do so. An employer cannot “refuse” to accommodate an
employee’s disability if the employer is unaware that the employee has a
disability. See § 111.34(1)(b); see also Wisconsin Bell, Inc., 382 Wis. 2d 624,
¶53 n.22 (quoting a LIRC decision for the proposition that “an employer is not
required to raise the issue of accommodation if the employer is unaware of an
32
No. 2021AP2028
employee’s [disability]”). We discuss the requisite level of knowledge and
certainty at length in the next section of this opinion.
¶77 However, to the extent that Wingra’s argument goes further, arguing
that the employer’s refusal to accommodate must be based on a discriminatory
motive, we disagree for the reasons we now explain.
¶78 Wingra argues that, because proof of a discriminatory motive is
required for disparate treatment claims under WIS. STAT. § 111.322(1), see id.,
¶33, it must also be required for refusal-to-accommodate claims under WIS. STAT.
§ 111.34(1)(b). However, the language of these two provisions differs in
significant ways, and the text of § 111.34(1)(b) does not support an argument that
proof of discriminatory motive is required in refusal-to-accommodate cases.
¶79 As noted, WIS. STAT. § 111.322(1) prohibits an employer from
taking certain actions “because of” an employee’s disability, and Wisconsin cases
have interpreted that language to require proof that the employer treated the
employee “less favorably than others because they [have a disability].” See
Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶33. By contrast, WIS. STAT.
§ 111.34(1)(b) states that, unless the employer can demonstrate that the
accommodation would cause hardship, “[e]mployment discrimination because of
disability includes … [r]efusing to reasonably accommodate an employee’s …
disability.” In other words, the language of § 111.34(1)(b) unequivocally provides
that an employer discriminates “because of disability” if the employer refuses to
reasonably accommodate an employee’s disability.
¶80 Contrary to Wingra’s argument, the phrase “because of disability” in
WIS. STAT. § 111.34(1)(b) is not a separate element that an employee such as
Gilbertson must establish to prevail on a refusal-to-accommodate claim. Rather,
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that phrase is included in § 111.34(1)(b) in order to link an employer’s refusal to
accommodate to the general prohibition on disability discrimination found in WIS.
STAT. § 111.321. The language of § 111.34(1)(b) does not contemplate that, to be
actionable, a “refus[al] to reasonably accommodate” a disability must also be
motivated “because of” a desire to treat disabled persons less favorably than
others, or “because of” their membership in a protected class.16
¶81 Nor does Wisconsin case law support the proposition that proof of
discriminatory motive is required for refusal-to-accommodate claims under WIS.
STAT. § 111.34(1)(b). Wingra does not identify any precedential Wisconsin case
that has addressed whether an employee must prove that their employer refused to
accommodate their disability “because of” any particular motivation. Wingra
points to Wisconsin Bell, but that case was a disparate treatment case and did not
involve any claim that the employer refused to accommodate the employee’s
16
Wingra also relies on LIRC’s interpretation of a separate statute, WIS. STAT.
§ 111.36(1)(c), which provides that “[e]mployment discrimination because of sex includes …
discriminating against any woman on the basis of pregnancy … by engaging in any of the actions
prohibited under s. 111.322.” Wingra argues that LIRC has interpreted § 111.36(1)(c) to require
proof of a discriminatory intent and, therefore, the reasonable accommodation statute, WIS. STAT.
§ 111.34(1)(b), also must require proof of discriminatory intent. We disagree.
Wingra’s argument is based on the flawed premise that WIS. STAT. § 111.36(1)(c) and
WIS. STAT. § 111.34(1)(b) share the same structure and therefore must be interpreted to mean the
same thing. However, the structure of the two statutes differs in significant ways. The
pregnancy-based discrimination claim described in § 111.36(1)(c) provides that it is “employment
discrimination because of sex” to take certain actions “on the basis of pregnancy.” In other
words, § 111.36(1)(c) describes a disparate treatment claim, which can be brought if an employer
treats an employee differently “on the basis” of pregnancy. Therefore, it is not surprising that
LIRC has interpreted claims under § 111.36(1)(c) to require proof of a discriminatory intent. By
contrast, the reasonable accommodation statute, § 111.34(1)(b), provides that it is “employment
discrimination because of disability” to refuse to reasonably accommodate an employee’s
disability, but it does not require that an employer’s refusal to accommodate must be “because of”
or “on the basis of” the disability.
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disability. Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶53 & n.22. Wisconsin Bell
does not purport to address the elements or required proof for refusal-to-
accommodate claims, except to say that “an employer is not required to raise the
issue of accommodation if the employer is unaware of an employee’s [disability].”
Id., ¶53 n.22.
¶82 In summary, an employee alleging a violation of WIS. STAT.
§ 111.34(1)(b) must prove that their employer “refused” to reasonably
accommodate the employee’s disability. We have concluded that this requires
proof that the employer had some level of knowledge of the employee’s disability,
but that it does not require proof that the employer refused to accommodate their
disability “because of” any particular motivation.
2. Requisite Knowledge
¶83 We now consider the knowledge an employer must have regarding
an employee’s disability to be liable for refusing to accommodate it and whether
LIRC correctly determined that Wingra possessed that knowledge at the relevant
times in this case. LIRC’s determination was based on the evidence presented at
the contested case hearing and the following factual findings, which Wingra does
not meaningfully dispute.
¶84 As mentioned, LIRC found that Gilbertson told Wingra on several
occasions that he was suffering from persistent, ongoing, and progressive back,
foot, and leg pain that was limiting his capacity to work. Gilbertson did not use
the word “disability” or “accommodation,” but he specifically told Wingra that his
pain was interfering with his ability to safely drive his assigned truck and to keep
up with work tasks, and he proposed reassignment to a non-glider truck as an
accommodation on several occasions.
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No. 2021AP2028
¶85 LIRC further found that, although Wingra “was well aware of the
fact that [Gilbertson’s assigned truck] was causing him pain,” Wingra’s response
was to “immediately and categorically deny[]” Gilbertson’s requests for an
accommodation. Wingra told Gilbertson that it was denying his accommodation
requests for a business reason—it had a great deal of investment in Gilbertson’s
assigned glider truck and wanted it on the road. Wingra did not communicate to
Gilbertson that the reason it denied his request was because it considered the
information Gilbertson provided inadequate to establish that he had a disability.
Indeed, LIRC specifically found that “the record … contains no evidence to
suggest that [Wingra] denied [Gilbertson] the accommodation he requested based
upon a belief that he did not have a disability,” and that “the only reason
[Gilbertson] was not assigned to a new truck was because [Wingra] has a policy of
not changing truck assignments.”
¶86 Based on these facts, LIRC determined that the information
Gilbertson reported to Wingra “should have triggered an inquiry into whether
[Gilbertson] was requesting a disability accommodation.” It concluded that
Wingra’s reliance on a lack of knowledge about Gilbertson’s disability was
“questionable,” and that Wingra “clearly had the information that would have led
it to discover that Gilbertson had a disability had it not foreclosed further
discussion.” Under these factual circumstances, LIRC found that Gilbertson was
not responsible for any doubt that Wingra could have had about whether his
reported medical issues constituted a disability because Wingra provided no
guidance on how to make a disability accommodation request; never asked
Gilbertson for further information or proof; never told Gilbertson that it
considered the information Gilbertson provided to be insufficient to establish that
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No. 2021AP2028
Gilbertson had a disability; and foreclosed further discussion by immediately and
categorically denying his requests.
¶87 Wingra challenges LIRC’s determination that it had sufficient
knowledge of Gilbertson’s disability and need for an accommodation to be found
liable under WIS. STAT. § 111.34(1)(b). The premise of Wingra’s argument is that
an employer does not have any legal obligation to accommodate an employee’s
disability unless and until the employer is given medical evidence documenting
that the employee has a disability within the meaning of the Act. According to
Wingra, it was not enough for Gilbertson to describe his back, foot, and leg pain
and request an accommodation because symptoms may or may not be indicative of
a medical condition, and not all medical conditions are disabilities. Wingra
contends that it was not required to “infer” that Gilbertson’s condition might be a
disability based on his description of symptoms that limited his capacity to work,
and that it had no “responsibility to request [additional] information” from
Gilbertson that “might lead to an accommodation.”
¶88 We begin by observing that the statutory language is silent regarding
the specific knowledge that an employer must have of an employee’s disability to
face liability for refusing to accommodate it. As discussed, WIS. STAT.
§ 111.34(1)(b) provides that an employer may be liable for “[r]efusing to
reasonably accommodate an employee’s … disability,” and we have determined
that the word “refuse” requires some level of awareness. However, as pertinent
here, there is nothing in § 111.34(1)(b) that clarifies the rights and obligations of
employers and employees in a situation like this one, in which the employee has
provided factual information about a physical limitation that could reasonably lead
an employer to conclude that the employee has a disability that requires
accommodation, but not enough information to conclusively prove that the
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No. 2021AP2028
physical condition constitutes a disability, as a claimant must do at an evidentiary
hearing. There is a gap in the statutory language, and that gap could be interpreted
to require anything from a low level of suspicion to absolute certainty.
¶89 Wisconsin case law provides some limited guidance on this topic.
This court has stated that an employer must have “the information necessary for
[the employer] to recognize that [the employee] need[s] [an] accommodation.”
See Target Stores, 217 Wis. 2d at 10. The information that is “necessary” for an
employer to “recognize” that an employee needs an accommodation will depend
on the facts of a given case, and the Target Stores court referred to this
determination as a finding of fact. Id. at 11.
¶90 Wingra points to Erickson and Wisconsin Bell as support for its
argument that a medical diagnosis is necessary information. However, neither of
those opinions support Wingra’s interpretation of WIS. STAT. § 111.34(1)(b).
¶91 As for Erickson, Wingra cites the portions of that opinion that we
have already discussed. See supra, ¶65 (discussing Erickson, 287 Wis. 2d 204,
¶¶17-19). Wingra argues that a disability accommodation request must be
accompanied by what Erickson refers to as “competent medical evidence of the
employee’s alleged impairment” so that the employer knows that the employee
has a disability that the employer has a duty to reasonably accommodate.
Erickson, 287 Wis. 2d 204, ¶17; see also id., ¶19. Yet, as we have explained, the
quoted portion of Erickson relates exclusively to what an employee must prove
during a contested case hearing to establish that the employee has a disability.
Erickson does not govern what an employee must say or do when requesting an
accommodation to trigger an employer’s obligations under the Act.
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No. 2021AP2028
¶92 Nor does Wisconsin Bell support Wingra’s interpretation. As noted
above, Wisconsin Bell was a disparate treatment case, not a refusal-to-
accommodate case. Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶¶33-34, 53 n.22.
The employee in that case was discharged for misconduct, and the misconduct
might or might not have been caused by the employee’s disability. Id., ¶45. The
employer knew of the employee’s disability diagnosis and “its symptoms in
general terms,” id., ¶11, but, due to the “amorphous nature” of the employee’s
disability and the limited information the employee provided on that topic, the
employer was not necessarily aware of the alleged causal connection between the
employee’s diagnosis and his conduct, id., ¶¶45-47, 50. Our supreme court
determined that, to prove that he was discharged “because of” his disability, the
employee had to show that his employer knew about the alleged causal connection
between the employee’s diagnosis and the misconduct for which he was
discharged. Id., ¶¶40-41. Otherwise, the court explained, the employee failed to
show that his discharge for misconduct was a discharge “because of” disability.
Id.
¶93 This conclusion from Wisconsin Bell has no bearing in this case
because, as we have explained, an employee need not prove that their employer
discharged them “because of” their disability to succeed in a refusal-to-
accommodate claim. Wisconsin Bell did not involve any allegation that the
employer refused to accommodate the employee’s disability, and it did not discuss
what information is necessary for an employer to recognize that an employee
needs a disability accommodation. Id., ¶53 n.22.
¶94 Accordingly, we conclude that the statutory language is ambiguous,
that our existing case law provides general guidance, but that it does not specify
the precise information an employer must have about an employee’s disability
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No. 2021AP2028
before the employer faces potential liability for refusing to accommodate it.
Therefore, we must construe the statute reasonably, and consistently with its
purpose to “encourage and foster to the fullest extent practicable the employment
of all properly qualified individuals.” WIS. STAT. § 111.31(3); see also Amazon
Logistics, Inc., 407 Wis. 2d 807, ¶¶25-26.
¶95 We begin by rejecting Wingra’s interpretation of WIS. STAT.
§ 111.34(1)(b) because it is not required by the statutory language and it is
inconsistent with the purpose of the Act. Wingra’s interpretation would impose
too high a burden for employees making disability accommodation requests, and it
would too easily allow employers to evade the legal responsibility of
accommodating an employee’s disability by endeavoring to maintain plausible
deniability regarding an employee’s disability.
¶96 We conclude that, under WIS. STAT. § 111.34(1)(b), an employee
need not provide medical evidence of a disability alongside an accommodation
request in order to put the employer on notice that it has a duty of reasonable
accommodation under the Act. It is sufficient if the factual information known by
the employer would reasonably lead the employer to recognize that the employee
likely has a disability, as that term is defined by WIS. STAT. § 111.32(8) and
Wisconsin case law. Specifically, the factual information known to the employer
should allow a reasonable employer to recognize that the employee has a “physical
or mental impairment which makes achievement unusually difficult or limits the
[employee’s] capacity to work,” see § 111.32(8); Hutchinson Tecnology., Inc.,
273 Wis. 2d 394, ¶¶15-17, and that the limitation might be permanent, see
Erickson, 287 Wis. 2d 204, ¶¶15-16.
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No. 2021AP2028
¶97 Finally, we conclude that, if an employer is aware that their
employee likely has a physical or mental limitation that constitutes a disability and
the employee requests an accommodation, the employer rejects such a request
outright at the employer’s peril. If the employer questions whether it has a duty of
reasonable accommodation under the Act, it has the right to ask for additional
information, including medical information, to confirm the employee’s disability.
However, if the employer denies an accommodation request outright, as Wingra
did in this case, the employer takes the risk that, in a claim that follows, LIRC will
find that the information known to the employer was sufficient such that the
employer should have recognized that the employee had a disability and was
entitled to a reasonable accommodation.
¶98 We now briefly consider whether LIRC’s decision about Wingra’s
knowledge hinges on any factual finding that is not supported by substantial
evidence. See Wisconsin Bell, Inc., 382 Wis. 2d 624, ¶51 (what an employer
knew about an employee’s disability is a factual finding that we review for
substantial evidence); see also Target Stores, 217 Wis. 2d at 10-11. Without
repeating the extensive factual background set forth above, we conclude that
substantial evidence supports LIRC’s findings about Wingra’s knowledge. The
facts set forth above in the background section of this opinion hew closely to
LIRC’s findings of fact, which hew closely to the testimony and documentary
evidence presented at the contested case hearing. Gilbertson testified to his
multiple, consistent attempts to inform Wingra of his physical condition and to
request an accommodation, and his testimony and other documentary evidence
support LIRC’s findings about those attempts. The evidence credited by LIRC
shows that, based on the consistent information Gilbertson provided, Wingra
should have recognized that he was requesting a specific accommodation for a
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No. 2021AP2028
physical condition that was limiting his capacity to work and that likely
constituted a disability.17 Yet, rather than providing an accommodation, Wingra
flatly refused to consider the request. Accordingly, we agree with LIRC that
Wingra violated the Act by refusing to reasonably accommodate Gilbertson’s
disability.18
¶99 Before concluding this section, we pause to comment on the
references throughout LIRC’s decision and the parties’ briefing to the “interactive
process.” The “interactive process” is a concept that is rooted in 29 C.F.R.
§ 1630.2(o)(3) (last amended Mar. 25, 2011), and that is discussed in federal
decisions interpreting the reasonable accommodation provision in the federal
ADA. See, e.g., EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 804 (7th Cir.
2005); Rehling v. City of Chicago, 207 F.3d 1009, 1015, (7th Cir. 2000). Federal
courts have stated that, once a qualified employee with a disability requests an
17
For example, Shea acknowledged that, in the summer of 2013, Balch told him that
Gilbertson was complaining about foot pain and ankle soreness, that Gilbertson attributed the
pain and soreness to pressing the accelerator pedal in his assigned glider truck, and that
Gilbertson had asked to be reassigned to a different truck. Statements attributed to Shea and
Balch lend support to LIRC’s finding that Shea and Balch both knew that Gilbertson was
complaining about a physical condition. Shea’s statement during the September 2013 meeting (“I
don’t know what your condition is, but ….”) demonstrates awareness that Gilbertson claimed to
have a medical condition, even if Shea did not want to learn more details, as does Balch’s
statement from October 2013 (“I don’t care how badly [Gilbertson] is hurt[.]”).
18
We briefly address and reject an alternative argument that Wingra advances in its
appellate briefing. Wingra contends that Gilbertson’s accommodation requests did not provide
sufficient notice that he was requesting an accommodation for a disability because Gilbertson
attributed the cause of his medical condition to the truck he was driving, not to a disability, and it
is “no secret that gliders are rough riding/operating compared to others.” This argument is
without merit. The Act does not grant or deny protection to individuals based on the cause of
their disability, and the fact that Gilbertson told Wingra that he believed his medical condition
was caused or exacerbated by operating his assigned truck has no bearing on whether the medical
condition constituted a disability.
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No. 2021AP2028
accommodation, the ADA contemplates that the employer and employee will
engage in an informal give-and-take exchange of information so that it can be
determined whether an accommodation is needed and what accommodation would
enable a disabled employee to continue working. Rehling, 207 F.3d at 1015.
¶100 Since at least 2011, LIRC has referred to the “interactive process”
and federal case law addressing that process when interpreting and applying the
provisions of the Wisconsin Fair Employment Act. See, e.g., Castro v. County of
Milwaukee Sheriff’s Dep’t, ERD Case No. CR200800720 (LIRC Dec. 20, 2011);
Oldenberg v. Triangle Tool Corp., ERD Case No. CR201400272 (LIRC Feb. 28,
2018). However, no precedential Wisconsin case has expressly adopted the
interactive process as part of Wisconsin law. See, e.g., Target Stores, 217 Wis. 2d
at 20 n.13 (declining to consider whether Wisconsin should adopt the ADA’s
“interactive process” for purposes of the Act because the parties did not present
developed arguments on that topic). The parties in this case appear to assume that
the interactive process has already been incorporated into Wisconsin law, and
none of the parties has developed an argument regarding whether we should adopt
it. It is not necessary to adopt the interactive process to resolve the questions of
Wisconsin law at issue here, and we decline to do so today, especially without
input on that topic from the parties.
III. Wingra Terminated Gilbertson’s Employment
¶101 As discussed, LIRC determined that Wingra terminated Gilbertson’s
employment on October 23, 2013, rather than providing him with the
accommodation he requested, and Wingra challenges this determination on appeal.
LIRC and Gilbertson assert that LIRC’s determination is a finding of fact, and
Wingra does not dispute this assertion. Based on the parties’ apparent agreement
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No. 2021AP2028
on the standard of review, we proceed to review LIRC’s determination that
Wingra terminated Gilbertson’s employment as a finding of fact, although we
observe that our conclusion would be the same if we were to independently review
LIRC’s ultimate determination that Wingra terminated Gilbertson’s employment
as a question of law. See, e.g., Nottleson v. DILHR, 94 Wis. 2d 106, 115-16, 287
N.W.2d 763 (1980) (providing that, in unemployment compensation cases under
WIS. STAT. ch. 108, whether the conduct of the employee constitutes a voluntary
or involuntary termination under WIS. STAT. § 108.04(7) is a question of law
heavily informed by factual findings).
¶102 Wingra contends that substantial evidence would support a finding
that Gilbertson voluntarily resigned on October 22, 2013, when he handed in his
time card, fuel card, and truck key (only to have them immediately returned by
Sundby), or on October 23, 2013, when Gilbertson did not show up for a
scheduled shift (following a conversation the day before in which Sundby excused
him from work based on his medical condition and indicated that he would
attempt to get Gilbertson reassigned to another truck).
¶103 To prevail in its challenge to LIRC’s finding that it terminated
Gilbertson’s employment, Wingra must do more than point to evidence in the
record from which a reasonable person could make a different finding than the one
LIRC made. Instead, Wingra has the burden to show that no substantial evidence
supports LIRC’s finding, and that no reasonable fact finder could have made that
finding from the evidence in the record and the available inferences therefrom.
Milwaukee Symphony Orchestra, Inc., 324 Wis. 2d 68, ¶31; Xcel Energy Servs.,
Inc. v. LIRC, 2013 WI 64, ¶48, 349 Wis. 2d 234, 833 N.W.2d 665 (providing that
the burden of showing that an agency’s finding is not supported by substantial
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No. 2021AP2028
evidence is on the party seeking to set aside its findings). Wingra has not carried
that burden.
¶104 LIRC’s determination that Wingra terminated Gilbertson’s
employment rests primarily on the timeline of events Gilbertson testified to, which
was corroborated by Gilbertson’s emails to Sundby and Shea, and which was not
meaningfully disputed by any evidence at the hearing. From that entire course of
events, it is undisputed that, although Gilbertson initially indicated an intention to
resign as a consequence of Wingra’s refusal to provide an accommodation,
Sundby did not accept his resignation attempt that day and Gilbertson rescinded it.
Gilbertson did not come to work the following morning, and a reasonable fact
finder would infer that he did not come to work based on Sundby’s representations
from the day before. Gilbertson was in contact with Sundby throughout the day,
explaining that he wished to work and simply needed the accommodation that he
had consistently been seeking. Sundby then called Gilbertson and told him that
Wingra was “accepting his resignation,” and Gilbertson responded that he had not
resigned and was available to work if the accommodation could be made. Under
the circumstances, a reasonable fact finder could infer that Wingra, not Gilbertson,
terminated the employment relationship. Hipke v. Badger Paper Mills, Inc., 261
Wis. 226, 231, 52 N.W.2d 401 (1952) (citing Scandrett v. Industrial Comm’n,
235 Wis. 1, 6, 291 N.W. 845 (1940) (providing that the inferences that an agency
makes from undisputed facts are binding and conclusive)).
¶105 Accordingly, we conclude that substantial evidence in the record
supports LIRC’s finding that Wingra terminated Gilbertson’s employment. We
therefore need not address LIRC’s alternative determination that, even if
Gilbertson could be said to have resigned his employment, the circumstances
would constitute a constructive discharge because Wingra’s refusal to provide a
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No. 2021AP2028
reasonable accommodation was the undisputed reason that Gilbertson’s
employment with Wingra came to an end. See Marten Transp., Ltd. v. DILHR,
176 Wis. 2d 1012, 1026, 501 N.W.2d 391 (1993) (discussing the constructive
discharge doctrine).
IV. Remedies
¶106 We now address Wingra’s remaining arguments about the remedies
ordered by LIRC.
A. Back Pay
¶107 LIRC ordered Wingra to reinstate Gilbertson to a “position
substantially equivalent to the position he held prior to his discharge,” and it
ordered Wingra to “make [Gilbertson] whole for all losses in pay [he] suffered by
reason of [Wingra’s] unlawful conduct.” LIRC’s make-whole remedy includes
back pay from October 23, 2013, “until such time as [Gilbertson] resumes
employment with [Wingra] or would resume such employment but for his refusal
of a valid offer or a substantially equivalent position,” with an offset for
Gilbertson’s “interim earnings.”
¶108 Back pay is an available remedy in employment discrimination
cases, see WIS. STAT. § 111.39(4)(c), and it is within LIRC’s discretion to award
it. La Crosse Police & Fire Comm’n, 139 Wis. 2d at 772. We therefore review
the award of back pay for an erroneous exercise of discretion. Id. We will uphold
LIRC’s exercise of discretion as long as it is supported by the record and by an
appropriate legal standard. Id. at 773.
¶109 Although it is within LIRC’s discretion to award back pay, the
availability of back pay is not unlimited. A discharged employee is expected to
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No. 2021AP2028
mitigate their damages during their period of unemployment, and the award of
back pay shall be reduced for “interim earnings or amounts earnable with
reasonable diligence.” WIS. STAT. § 111.39(4)(c); see also Anderson v. LIRC,
111 Wis. 2d 245, 255, 330 N.W.2d 594 (1983); La Crosse Police & Fire
Comm’n, 139 Wis. 2d at 772; U.S. Paper Converters, Inc. v. LIRC, 208 Wis. 2d
523, 528-29, 561 N.W.2d 756 (Ct. App. 1997). It is the employer’s burden to
prove that an employee failed to exercise reasonable diligence in mitigating
damages. U.S. Paper Converters, Inc., 208 Wis. 2d at 527. Whether an employer
has carried its burden is a question of law that we review de novo, but we will
uphold the factual findings LIRC made in support of this legal conclusion if the
findings are supported by substantial evidence. Anderson, 111 Wis. 2d at 255,
257.
¶110 At the hearing, Gilbertson testified about his attempts to secure
comparable employment from a number of employers (including Wingra)
following his termination, his work with the state department of vocational
rehabilitation from January 2015 through June 2017, and his acceptance of a
position from another employer in April 2018. LIRC found that Wingra
“introduced no evidence to suggest that there was a reasonable likelihood [that
Gilbertson] would have found comparable work sooner had he exercised greater
diligence,” and Wingra does not argue that, generally speaking, Gilbertson failed
to exercise reasonable diligence. Instead, Wingra’s arguments focus on two
specific dates, which correspond with applications Gilbertson submitted to Wingra
seeking reinstatement to his former position as a ready-mix truck driver. Wingra
argues that Gilbertson’s entitlement to back pay should be cut off after those dates.
¶111 Wingra’s first argument pertains to a job application Gilbertson
submitted to Wingra in early 2014, after Wingra posted an advertisement for a
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No. 2021AP2028
ready-mix truck driver position. Wingra did not offer the ready-mix truck driver
position to Gilbertson; however, in June 2014, Wingra offered him a different
position as a lowboy truck driver. During the administrative proceedings, Wingra
argued that Gilbertson’s decision to turn down the lowboy truck driver position
constituted a failure to exercise reasonable diligence, and Wingra renews that
argument on appeal.
¶112 Under Wisconsin law, a valid offer of reinstatement terminates the
accrual of an employer’s back pay obligation. Anderson, 111 Wis. 2d at 253-54.
But not all offers constitute valid offers that are effective to terminate the accrual
of back pay. To be valid, the offer must (among other things) be for the same
position or a substantially equivalent position. Id. at 256. As our supreme court
has explained, “a discharged … employee is not required in mitigation of
damages[] to accept alternative employment of an ‘inferior kind’ … or
employment outside of [the employee’s] usual type or for which [the employee] is
not sufficiently qualified by experience.” Id. (citation omitted).
¶113 Here, LIRC found that, when Gilbertson turned down the lowboy
truck driver position, he told Wingra that he did not believe he was qualified to
drive a lowboy truck. As Gilbertson explained, he had no experience driving
lowboy trucks and he lacked a “hazmat endorsement,” which Gilbertson
contended was required for the position. LIRC found that Wingra expressed no
disagreement with Gilbertson’s assessment of his qualifications at that time.
Then, during the contested case hearing, Wingra did not offer anything to
contradict Gilbertson’s assessment, except to make the conclusory assertion that,
in Wingra’s opinion, Gilbertson was qualified to operate a lowboy truck. Wingra
did not offer any other evidence on this topic and did not otherwise counter
Gilbertson’s testimony. LIRC concluded that, “although failure to accept a
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No. 2021AP2028
suitable replacement employment can serve to cut off entitlement to back pay,”
Gilbertson was not required to accept employment as a lowboy truck driver as a
means of mitigation.
¶114 On appeal, Wingra does not address the standards set forth in
Anderson for determining whether an offer of employment is a valid offer of
reinstatement, nor does it challenge any of LIRC’s findings of historical fact. It
simply asserts that “Wingra was aware of Gilbertson’s work history, and, as the
employer, it is Wingra’s prerogative to determine which individuals are qualified
for particular positions.” This assertion fails to grapple with LIRC’s findings,
particularly the finding that Gilbertson told Wingra that he was not qualified for
the position, and the finding that Wingra did nothing at the time to contradict this
assessment. Based on our independent review of the administrative record, we
agree with LIRC’s conclusions that Gilbertson acted reasonably in denying the
offer, and that Wingra failed to satisfy its burden of proof regarding any failure to
mitigate.19
¶115 Wingra’s second argument pertains to an application Gilbertson
submitted to Wingra in January 2015 for an open ready-mix truck driver position,
and it is not an argument about mitigation. It is instead an argument about
19
Wingra also asserts that the fact that Wingra offered Gilbertson a position as a lowboy
truck driver undercuts his assertion that Wingra discriminated against him. Wingra fails to
explain how this fact could be relevant to LIRC’s conclusion that Wingra violated the Act by
refusing to accommodate his disability, which resulted in the termination of his employment, and
we will not develop arguments on its behalf. See State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992) (we need not consider arguments that are unsupported by legal
citations or are otherwise undeveloped).
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whether Gilbertson’s disability would have prevented him from adequately
undertaking the job-related responsibilities of a ready-mix truck driver in 2015.
¶116 By way of background, LIRC made the following findings of fact
regarding Gilbertson’s January 2015 job application. When Gilbertson applied for
the position as a ready-mix truck driver in January 2015, he had been given work
restrictions by his chiropractor, and he provided those restrictions along with his
application. The restrictions included that he not lift more than 50 pounds more
than twice per hour, and that he frequently change his posture, avoid mechanical
vibrations, and avoid climbing ladders or working on roofs or elevated locations.
Gilbertson stopped seeing the chiropractor in January 2015, and it is unclear for
how long the work restrictions remained in effect. Some time later, Gilbertson
began seeing the spine specialist, Dr. Greenberg, who did not provide Gilbertson
with any work restrictions and opined that an ergonomic change in the truck
would enable him to perform the job of a ready-mix truck driver.
¶117 During the proceeding before LIRC, Wingra argued that Gilbertson
was not entitled to back pay after January 2015 because his work restrictions
would have prevented him from working as a ready-mix truck driver. LIRC
disagreed with this premise and concluded that Gilbertson’s “entitlement to back
pay” was “unaffected” by the work restrictions he had in 2015. It observed that
the work restrictions appeared to have been temporary, but even if they were long
lasting, Wingra was “still obligated to attempt to offer reasonable accommodations
that would allow [Gilbertson] to return to work, notwithstanding any medical
restrictions he may have.” It noted that reasonable accommodations may include
restructuring the physical demands of the job, see Crystal Lake Cheese Factory,
264 Wis. 2d 200, ¶52, and that Wingra failed to prove that Gilbertson “has any
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medical restrictions that would prevent him from performing the job” of a ready-
mix truck driver, “with or without reasonable accommodations.”
¶118 On appeal, Wingra asserts that LIRC is wrong because the 2015
medical restrictions prove that Gilbertson was unable to work as a ready-mix truck
driver in 2015. Without any citation to authority, it asserts that, if Gilbertson
could not work as a ready-mix truck driver in 2015, he is not entitled to back pay
from that date forward. Wingra then takes its argument one step further,
summarily speculating in a footnote that, had Gilbertson seen a medical
professional while he was still employed by Wingra, “he likely would have been
restricted from working as a [ready-mix] driver then, which should foreclose” any
back pay following the termination of his employment.
¶119 Framed in this light, Wingra’s argument appears to be a backdoor
attempt to raise a truncated version of one of the defenses that is available under
WIS. STAT. § 111.34(1)(b) or (2)(a)—that making an accommodation would pose
a hardship on Wingra’s program, enterprise, or business, or that Gilbertson would
be unable to undertake the job-related responsibilities of his employment even
with reasonable accommodation. See supra, ¶53 (discussing an employer’s
defenses to a reasonable accommodation claim). We observe that Wingra did not
raise these defenses to Gilbertson’s claims during the administrative proceedings,
but if Wingra had done so, it would have had the burden of proof.
¶120 For purposes of addressing Wingra’s argument, we assume without
deciding that an employee’s entitlement to back pay could end if the employee’s
disability progresses to the point that it is “reasonably related to the employee’s
ability to adequately undertake” the employee’s job responsibilities, as
contemplated by WIS. STAT. § 111.34(2)(a), and the employer cannot
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No. 2021AP2028
accommodate the employee’s disability without incurring hardship. But this is no
small assumption in Wingra’s favor—as mentioned, Wingra cites no legal
authority for this proposition. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492
N.W.2d 633 (Ct. App. 1992) (we need not consider arguments that are
unsupported by legal citations or are otherwise undeveloped).
¶121 Even with that assumption, Wingra fails to convince us that
Gilbertson’s 2015 medical restrictions would render him unable to “adequately
undertake the job-related responsibilities” of a ready-mix truck driver in 2015 or at
any other time. Wingra makes only a bare assertion—without appropriate record
citations—that lifting more than 50 pounds more than twice per hour, climbing
ladders, and working on elevated locations are all “essential functions” of the job
of a ready-mix truck driver. But even assuming that they are, that does not mean
that Gilbertson would be unable to adequately undertake the responsibilities of a
ready-mix truck driver with reasonable accommodation. As discussed, Wingra
would have the burden of proof on these issues; it has not shown, much less
argued, that it could not reasonably accommodate each of Gilbertson’s 2015
medical restrictions, nor does it argue that accommodating any of the restrictions
would impose hardship. See supra, ¶53.
B. Attorney Fees
¶122 LIRC is authorized to award attorney fees to a prevailing
complainant. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984)
(interpreting WIS. STAT. § 111.39(4)(c)). “The first step in calculating an attorney
fee award is to multiply the number of hours reasonably expended on the litigation
by a reasonable hourly rate.” Rice Lake Harley Davidson v. LIRC, 2014 WI App
104, ¶62, 357 Wis. 2d 621, 855 N.W.2d 882. “This ‘lodestar’ figure may then be
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adjusted upward or downward, based on various factors.” Id. “The amount of
attorney fees which are reasonable and therefore should be awarded to a successful
… complainant is a discretionary determination,” id. (citation omitted), and we
will not substitute our judgment for LIRC’s on any issue of agency discretion. See
WIS. STAT. § 227.57(8).
¶123 Following extensive briefing by the parties, LIRC ordered Wingra to
pay some, but not all, of the attorney fees Gilbertson incurred during the
administrative proceedings. LIRC’s written decision on fees spans eight pages,
throughout which LIRC carefully considered the evidence and the parties’
arguments regarding which fees were compensable and which were not.
¶124 In its opening appellate brief, Wingra argues that Gilbertson’s
attorney fees should be reduced in two additional respects. LIRC and Gilbertson
respond to Wingra’s arguments in their respective response briefs, but Wingra
does not mention attorney fees at all in its reply brief. We could deem Wingra’s
arguments about attorney fees conceded based on Wingra’s failure to respond to
LIRC’s or Gilbertson’s arguments. See United Coop. v. Frontier FS Coop., 2007
WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578. However, for the sake of
completeness, we address Wingra’s arguments.
¶125 Wingra first challenges LIRC’s decision not to reduce the hourly
rate of one of Gilbertson’s attorneys for 19 hours that he spent engaging in what
Wingra refers to as “non-legal work” that Wingra asserts could have been
performed by a paralegal or secretary. However, in its decision, LIRC determined
that it was “not clear that the tasks identified by [Wingra] are necessarily
clerical/non-legal in nature.” Wingra’s appellate briefing does not identify the
tasks that it contends should have been completed by support staff, and it provides
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No. 2021AP2028
no citation to anything in the agency record that contains these billing
descriptions. Without any citation to the record, we are not in a position to second
guess LIRC’s determination. See WIS. STAT. RULE 809.19(1)(e); Tam v. Luk, 154
Wis. 2d 282, 291 n.5, 453 N.W.2d 158 (Ct. App. 1990) (if a party fails to support
its argument with record citations, we need not consider the argument because “it
is not the duty of this court to sift and glean the record … to find facts which will
support” the party’s argument (citation omitted)).
¶126 Wingra also challenges LIRC’s decision to award Gilbertson 25.3
hours in fees for time that one of his attorneys spent preparing for the
September 2018 hearing before the administrative law judge. Wingra argues that
this amount of time was unreasonable because the attorney in question did not
attend the hearing, and another attorney also billed for time that he spent preparing
for the same hearing. Once again, Wingra’s argument is not supported by
appropriate record citations and is entirely undeveloped—Wingra does not
identify any specific tasks that were unnecessary or duplicative, nor does it cite to
any portion of the agency record in which the purportedly unnecessary or
duplicative billing records appear. Nor does Wingra make any attempt to grapple
with the reasoning that LIRC supplied for awarding these fees. LIRC explained
that Gilbertson’s attorney billed for tasks that were necessary and compensable,
whether or not the attorney personally attended the hearing, and Wingra’s bare
assertions to the contrary provide us with no reason to upset LIRC’s exercise of
discretion on this issue.
¶127 Before concluding, we observe that, in the response Gilbertson filed
in the circuit court to Wingra’s petition for judicial review, he has also asked for
his reasonable attorney fees incurred in this judicial review proceeding, provided
that LIRC’s order is affirmed. We remand to the circuit court to determine an
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No. 2021AP2028
appropriate award. See Watkins, 117 Wis. 2d at 765-66. We do not perceive
Wingra to be disputing Gilbertson’s entitlement to fees to the extent that
Gilbertson prevails in this judicial review proceeding, but if it is, it can make those
arguments on remand.
CONCLUSION
¶128 For the foregoing reasons, we affirm LIRC’s order in its entirety and
remand for the circuit court to determine an appropriate award of fees for the
judicial review proceedings.
By the Court.—Order affirmed and cause remanded.
55