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Accommodations exist for cheese cutter

Hon. Michael W. Hoover

An employer violated the Wisconsin Fair Employment Act (WFEA) by refusing to modify an employee’s job duties after an automobile accident left her a quadriplegic confined to a wheelchair, the Wisconsin Court of Appeals held on Oct. 8.

Cheese Factory

Crystal Lake Cheese Factory operates a cheese factory in Comstock. It processes milk into several varieties of cheese, which it packs and markets under its own and several other brand labels. Susan Catlin began working there in August 1995 as a cheese cutter and was soon promoted to department head/lead worker.

Catlin worked in the wholesale department, which consisted of four positions: department head, cheese cutter, cryovacer (packager), and labeler. As department head, Catlin’s primary duties were to gather store orders and make a direction sheet for the cutter containing a list of sizes and types of cheese to be cut that day. She would also assist with assembling and labeling boxes and weighing, pricing, and boxing cheese.

The cutter would take the instruction sheet, remove the cheese from the cooler, cut it, and set the pieces on a table. The cryovacer would then bag the pieces and place them in the cryovac machine to remove the air from the packages. After removing the air, the cryovacer gave the packages a quick hot water bath to shrink the wrapper around the cheese. The pieces were then labeled, weighed, priced, boxed and loaded onto a palette for storage.

The workers would also occasionally take a load of cheese to the factory store or help load semi-trucks, although truck loading primarily occurred around Christmas. All four workers in the department were trained for all four positions and would assist each other as necessary.

No Accommodation

In November 1996, Catlin was in an automobile accident that left her a quadriplegic. Crystal Lake refused to return her to work in September 1997, after she completed recovery.

After being contacted by a vocational rehab center to discuss Catlin’s return to work, Crystal hired an expert to determine whether a person in a wheelchair could perform Catlin’s job. He concluded that no accommodations could be made to the job site because Catlin would be unable to perform all of the functions of all four positions in the wholesale department, and on that basis, Crystal Lake concluded that it could make no accommodations for Catlin.

Catlin filed a complaint, alleging disability discrimination in violation of the WFEA. She presented evidence that she was capable of performing most of her job-related duties, although she could not lift forty-pound blocks of cheese, load or unload the hand cart or truck for transporting the cheese, reach boxes or cheese stored at high levels, operate the cheese-cutting machine or give the packages the water bath.

What the court held

Case: Crystal Lake Cheese Factory v. LIRC, No. 02-0815.

Issue: Must an employer accommodate a disabled employee, even though, even with accommodations, the employee will not be able to perform all of her prior duties?

Holding: Yes. When an employee shows that she can perform some of her duties, the burden shifts to the employer to show the accommodation would result in hardship.

Counsel: Robert H. Duffy, Milwaukee; Sean M. Scullen, Milwaukee, for appellant; David C. Rice, Madison; Monica M. Murphy, Milwaukee, for respondent.

Catlin also presented evidence that she could work if some physical modifications to the plant were made: the main entrance had a three-inch lip on the threshold that would have to be altered, or a ramp would have to be provided: the sanitizer area, through which employees normally walked, would have to be modified for the wheelchair to pass through; and she would need a wheelchair-accessible restroom.

Although the ALJ found that Crystal Lake did not violate the Act, LIRC found that Crystal Lake’s refusal to alter Catlin’s job responsibilities to exempt her from certain tasks constituted a denial of a reasonable accommodation. LIRC also determined that the refusal to make physical alterations was a denial of a reasonable

On judicial review, Barron County Circuit Court Judge James C. Eaton affirmed the LIRC decision, and the court of appeals also affirmed in a decision by Judge Michael W. Hoover.

Standard of Review

The court first determined that it was appropriate to give great weight deference to LIRC’s decision, rather than the de novo review urged by Crystal Lake.

The court noted that LIRC is charged with adjudicating appeals from the hearing examiner under the WFEA; LIRC has developed experience in interpretation of the WFEA since it was enacted in 1981; deference will promote greater uniformity and consistency than if the court did not defer; the interpretation of "reasonable accommodation" is mixed with fact-finding; and the interpretation involves value and policy judgments about the employers and employees when an employee is handicapped.

Rejecting Crystal Lake’s argument that the issue before LIRC was one of first impression or, in the alternative, inconsistent with prior interpretations, the court stated, "LIRC has interpreted ‘reasonable accommodation’ many times before; the unique facts here do not necessarily make the question one of first impression."

All, Most, or Some

Addressing the particular facts, the court noted that LIRC found that Catlin could perform most of the duties in the department.

The tasks LIRC specifically found Catlin could not perform – lifting and cutting blocks of cheese and giving the packages a water bath – were duties assigned to the cutter and the cryovacer.

Although Catlin was expected to perform these duties whenever needed, the court noted that LIRC found that Catlin performed these duties infrequently.

The court also affirmed LIRC’s refusal to consider an estimate that it would cost $47,000 to renovate a restroom to accommodate Catlin. Because the estimate was not in writing, the court concluded it was properly deemed uncorroborated hearsay.

Turning to LIRC’s legal interpretation, the court noted that sec. 111.34 does not indicate whether an individual’s disability must be related to her ability to undertake "some," "most," or "all" of the employee’s responsibilities.

Crystal Lake argued that a modification of job duties eliminating some of the employee’s prior duties is per se an unreasonable accommodation under sec. 111.34.


Wisconsin Court of Appeals

Related Article

Case Analysis

LIRC, however, interpreted the statute as not necessarily requiring that an employee be able to perform all of the job-related functions, only some or most. As long as the employee can perform some of the job responsibilities, LIRC concluded that modification of the duties may be a reasonable accommodation that the employer should make.

Under the interpretation adopted by LIRC, the burden would then shift to the employer to demonstrate that the accommodation of modifying the job would create a hardship for the employer.

Applying the great weight deference standard of review, the court concluded that LIRC’s interpretation is not contrary to the statute’s plan meaning, and accepted its interpretation.

No Remand

Finally, the court stated that it would not permit the matter to be remanded to LIRC for additional factfinding on whether Crystal Lake could show that the accommodations it would have to make would constitute a hardship.

The court wrote, "We decline to remand this case to give Crystal Lake the opportunity to show hardship. It chose to proceed on the legal theory that LIRC required it to create a new job and
that this was unreasonable under the statute. It could have opted to present alternative evidence regarding hardship, but it did not. We will not remand merely because a party’s trial strategy backfires."

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David Ziemer can be reached by email.

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