LOUIS B. BUTLER, JR., J.

¶ 1. Stoughton Trailers, Inc. ("Stoughton") seeks review of a published decision of the court of appeals affirming a decision of the Labor and Industry Review Commission ("LIRC"), which concluded that Stoughton refused to reasonably accommodate Douglas Scott Geen's ("Geen") disability, migraine headaches, within the meaning of Wis. Stat. § 111.34(1)(b) (2005-06), and terminated Geen because of his disability within the meaning of Wis. Stat. §§ 111.322 and 111.34.

¶ 2. This case involves interpretation of the Wisconsin Fair Employment Act ("WFEA") and review of an agency determination. Thus, our authority in this case is governed by: (1) the will of the legislature as expressed in the language of the WFEA, and (2) the appropriate level of deference accorded to a determination of the agency charged by the legislature with administrating the WFEA.

¶ 3. Stoughton terminated Geen's employment after it determined that he accumulated 6.5 absences or "occurrences" under Stoughton's no-fault attendance policy, exceeding the policy's limit of six "occurrences" in a prescribed time period. Two of these "occurrences" were caused by Geen's migraine headaches, while the remaining "occurrences" were unrelated to Geen's disability.

¶ 4. LIRC concluded that Stoughton terminated Geen because of his disability within the meaning of the WFEA, holding that the two "occurrences" caused by Geen's disability were sufficient to conclude that the termination was because of disability. LIRC further concluded that Stoughton did not reasonably accommodate Geen, in that it failed to give him sufficient time to submit documentation to avoid being assessed an "occurrence" under its attendance policy, and it failed to exercise "clemency and forbearance" when it refused to temporarily tolerate the absences that were caused by his disability to allow medical intervention to take its course and potentially resolve the problem of Geen's absences. The circuit court and court of appeals affirmed LIRC on both issues.

¶ 5. We conclude a more reasonable basis for LIRC's decision exists than the one adopted by LIRC. To wit, we note that Stoughton did not follow its own no-fault attendance policy in terminating Geen when it failed to provide him with 15 days as allowed under the policy to submit documentation to avoid being assessed an "occurrence." Because Stoughton did not follow its own no-fault attendance policy, it may not claim whatever protection that policy may provide in its termination of Geen. Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably based on the unique circumstances surrounding that termination. Based on these circumstances, we conclude that LIRC's determination that Stoughton terminated Geen because of his disability was reasonable. We therefore do not address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the WFEA when some of the absences were caused by disability and others were not.

¶ 6. We further conclude that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen. Additionally, we conclude that its ordered remedy was reasonable. Accordingly, we affirm.

I

¶ 7. The facts relevant to the issues presented on review are taken from LIRC's decision of September 12, 2003, and are undisputed. Stoughton, a manufacturer of semi-trailers, has a no-fault attendance policy for its employees. The policy includes a point-based system under which employees are assigned "occurrences" for tardiness and absences, subject to limited exceptions, including "[a]bsences meeting State and Federal Family and Medical Leave [FMLA] laws." An employee is terminated under the policy if he or she accumulates six "occurrences."

¶ 8. Under Stoughton's no-fault attendance policy, an employee who is absent from work due to a medical condition is provided a standard letter with a Family and Medical Leave Act ("FMLA") form to complete and return to the human resources department. If the employee returns the completed form, he or she will not be assessed an "occurrence." However, if the employee does not return the certification form within 15 days (but does submit other proof that their absence was for a medical condition), the employee is assessed one "occurrence," regardless of the duration of the leave. In this case, Geen submitted a medical excuse for a mid-December 1996 to early January 1997 extended absence but not the FMLA form and thus was assessed one "occurrence."

¶ 9. Geen worked for Stoughton for approximately eight years, until January 31, 1997, when he was fired for exceeding the number of "occurrences" allowed under the attendance policy.

¶ 10. As of December 11, 1996, Geen had accumulated 4.5 "occurrences" under the policy, none of which were due to disability. From December 12, 1996, through January 7, 1997, Geen was absent from work because of severe headaches. Geen sought medical attention at least three times during this period and was diagnosed as suffering from migraine headaches and depression. Geen was prescribed the drug Paxil for his depression and Midrin for his migraines. This leave of absence constituted Geen's first disability-related "occurrence" under the attendance policy, bringing his total to 5.5 "occurrences."

¶ 11. Geen returned to work on January 8, 1997. On Friday, January 24, 1997, Geen called in before his shift and said that he could not work because he had a migraine. Geen called in sick again with migraines on the following Monday and Tuesday mornings, January 27 and 28. When Geen returned to work on January 29, 1997, Stoughton's human resource administrator, Tammy Droessler ("Droessler"), provided Geen with a copy of a standard letter noting that Geen had been absent from work since the previous Friday. The letter explained the need to submit a completed FMLA form within 15 days of the date of the letter if Geen was to avoid having the absence counted as an "occurrence" under Stoughton's no-fault attendance policy. Droessler also reminded Geen orally that he would need to submit the FMLA form to avoid being assessed an "occurrence."

¶ 12. On January 30, 1997, Geen was examined by his physician, Dr. M.A. Hansen, who concluded that Geen showed "textbook examples of migraine headaches, which has increased in frequency and intensity since beginning a prescription of Paxil." Dr. Hansen took Geen off Paxil and again prescribed Midrin for his headaches. Dr. Hansen scheduled a follow-up exam for Geen in one week. Dr. Hansen provided Geen with a note stating that he was being evaluated for migraines. Later that day, Geen gave the note to Droessler, who told Geen that he needed to bring in a doctor's note stating he could return to work without restrictions.

¶ 13. The next day, January 31, 1997, Geen gave Droessler a second note from Dr. Hansen indicating he had been unable to work on January 27 and 28 because of migraines but was now cleared to work without restrictions. The note did not address Geen's absence on January 24. After reviewing the note, Droessler informed Geen he was being discharged because the doctor's note did not excuse him for January 24, causing him to accrue an "occurrence" for that date, which brought his total number of "occurrences" to 6.5. Geen was given two days from the date he received the standard letter (January 29) to the date of his termination (January 31) and not 15 days as provided under Stoughton's no-fault termination policy to submit the FMLA form to avoid being assessed an "occurrence."

¶ 14. Geen indicated that his doctor needed more time to evaluate him, and that his doctor would be unavailable to provide additional medical documentation for at least a week. Droessler told Geen that he had three working days from Friday, January 31, to write a letter to the company's Attendance Review Board ("Board") in order to try to reverse the assessment of the "occurrence." She said that he could submit additional medical documentation to the Board.

¶ 15. By letter dated February 4, 1997, Geen timely appealed his termination to the Board. Geen indicated his doctor was currently evaluating his headaches and had indicated that he would perform additional tests and change Geen's medication if the headaches persisted. Geen did not submit any additional medical documentation with his letter. On February 21, 1997, the Board rejected Geen's appeal.

¶ 16. On February 24, 1997, Geen filed a disability discrimination complaint with the Equal Rights Division of the Department of Workforce Development ("DWD") alleging Stoughton terminated his employment because of his disability in violation of the WFEA. A hearing examiner ruled that (1) Geen had a disability as defined by the WFEA; (2) his employment was terminated in part because of his disability; and (3) Stoughton had failed to reasonably accommodate Geen's disability.

¶ 17. Stoughton appealed to LIRC. LIRC reversed, concluding that Stoughton had not refused to reasonably accommodate Geen's disability. Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 (LIRC, August 31, 2000). LIRC dismissed Geen's complaint.

¶ 18. Geen appealed to the Dane County Circuit Court, Honorable John C. Albert, which set aside LIRC's order dismissing the complaint and ordered the matter remanded to LIRC. Stoughton sought review of the circuit court decision with the court of appeals.

¶ 19. The court of appeals concluded that while LIRC had determined that Stoughton did not discriminate against Geen because of disability, it expressly left open the more narrow question of whether Geen was terminated because of his disability. See Geen v. LIRC, 2002 WI App 269, ¶ 34 n. 8, 258 Wis. 2d 498, 654 N.W.2d 1. The court of appeals noted that LIRC's decision discussed whether a termination could be because of disability when two of the 6.5 "occurrences" were due to disability, but concluded only "`there is no bright-line rule' regarding when a `no-fault' attendance policy becomes discriminatory on account of disability-related absences." Geen, 258 Wis. 2d 498, ¶ 34 n. 8 (quoting Geen, ERD Case No. 199700618 (LIRC, August 31, 2000)). The court of appeals also concluded LIRC should have considered the applicability of the Family and Medical Leave Act ("FMLA") to Geen's case. The court of appeals remanded the matter to LIRC to

consider, to the extent it is necessary to do so, either or both of the following issues: (1) whether on the present facts Stoughton terminated Geen's employment because of his disability; and (2) whether the FMLA or regulations enacted thereunder affect Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how.

Geen, 258 Wis. 2d 498, ¶ 36. Stoughton filed a petition for review, which the Supreme Court denied on January 21, 2003.

¶ 20. On remand, LIRC concluded Stoughton terminated Geen because of his disability and failed to reasonably accommodate his disability. Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 (LIRC, September 12, 2003). LIRC's decision included a cease and desist order, reinstatement of Geen, and an award of back pay and attorneys fees and costs.

¶ 21. Stoughton appealed to the Dane County Circuit Court, Honorable Michael N. Nowakowski, which affirmed the LIRC decision. Stoughton sought review in the court of appeals, which affirmed the circuit court's order. The court of appeals concluded LIRC's determination that Stoughton terminated Geen's employment because of his disability was based on a reasonable interpretation of the relevant provisions of the WFEA and that Stoughton's interpretation of the statute was not more reasonable. Stoughton Trailers, Inc. v. LIRC, 2006 WI App 157, ¶ 24, 295 Wis. 2d 750, 721 N.W.2d 102. The court of appeals also concluded that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen's disability. Id., ¶ 47. Further, the court of appeals concluded that LIRC properly exercised its discretion in applying the "in-part" test adopted in Hoell v. LIRC, 186 Wis. 2d 603, 609-11, 522 N.W.2d 234 (Ct.App. 1994), to establish Geen's remedy. Stoughton Trailers, 295 Wis. 2d 750, ¶ 35. Stoughton filed a petition for review, which we granted.

II

¶ 22. The Wisconsin Fair Employment Act ("WFEA"), Wis. Stat. §§ 111.31- 111.395, prohibits discrimination in employment on the basis of age, race, creed, color, disability, marital status, sex, national origin, ancestry, arrest record, conviction record, membership in the national guard, state defense force or military reserves, or the use or nonuse of lawful products off the employer's premises on the employee's personal time. Wis. Stat. § 111.321. The WFEA states that its purpose is "to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals" regardless of their status as a member of a class protected by the statute, and that its provisions "shall be liberally construed for the accomplishment of this purpose." Wis. Stat. § 111.31(3).

¶ 23. Wisconsin Stat. § 111.34(1)(b) provides that "[e]mployment discrimination because of disability includes, but is not limited to . . . [r]efusing 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." As the court of appeals noted, to prevail on his disability discrimination claim under the WFEA, Geen must first

establish that he has a disability within the meaning of Wisconsin's fair employment law. Second, Geen must prove that Stoughton terminated him because of his disability. Third, if Geen proves these two elements, the burden then shifts to Stoughton to justify the termination. Stoughton may do so by proving that Geen's disability is "reasonably related" to his ability to do his job and that either: (1) Stoughton reasonably accommodated Geen's disability prior to his termination; or (2) any accommodation would have posed a hardship on its business.

Stoughton Trailers, 295 Wis. 2d 750, ¶ 13 (quoting Geen, 258 Wis. 2d 498, ¶ 15 (citations omitted) (emphasis in original)).

¶ 24. Stoughton does not dispute that migraine headaches are a disability within the meaning of the WFEA. Geen has not argued that his migraine headaches are not "reasonably related" to his ability to do his job. Moreover, Stoughton does not assert that a reasonable accommodation of Geen's disability would pose a hardship on its business. The two primary disputed issues in this case are whether Stoughton terminated Geen because of his disability, and whether Stoughton took adequate steps to reasonably accommodate Geen's disability prior to terminating him. We address each of these issues in turn.

A

¶ 25. Stoughton contends that, prior to LIRC's second decision in this case, the settled rule in Wisconsin was that it is not discrimination because of disability for an employer to terminate an employee by evenhanded application of the employer's no-fault attendance policy when a majority of the employee's absences causing termination were not related to the employee's disability. Stoughton further maintains LIRC erred in applying the "in-part" test used in Hoell, 186 Wis. 2d at 608, because the "in-part" test is appropriate only in cases in which discriminatory intent is a motivating factor in the decision to terminate, and intent (discriminatory or otherwise) is not a factor in a termination that is based on a violation of a no-fault attendance policy. Alternately, Stoughton asserts that if the "in-part" test does apply here, LIRC nonetheless ordered the wrong remedy. Before addressing these arguments, we consider the appropriate standard of review to apply to LIRC's determination that Geen was terminated because of his disability.

1

¶ 26. When reviewing a decision of an administrative agency, this court reviews the agency's decision, not the decision of the court of appeals or the circuit court. Racine Harley-Davidson, Inc. v. Div. of Hearings and Appeals, 2006 WI 86, ¶ 8 n. 4, 292 Wis. 2d 549, 717 N.W.2d 184. A reviewing court accords an interpretation of a statute by an administrative agency one of three levels of deference — great weight, due weight or no deference — based on the agency's expertise in the area of law at issue. See DaimlerChrysler v. LIRC, 2007 WI 15, ¶ 15, 299 Wis. 2d 1, 727 N.W.2d 311.

¶ 27. An agency's interpretation of a statute is entitled to great weight deference when: (1) the agency was charged by the legislature with the duty of administering the statute; (2) the interpretation of the agency is one of long-standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity in the application of the statute. DaimlerChrysler, 299 Wis. 2d 1, ¶ 16.

¶ 28. We grant an intermediate level of deference, due weight, "where an agency has some experience in the area, but has not developed any particular expertise in interpreting and applying the statute at hand" that would put the agency in a better position to interpret the statute than a reviewing court. Responsible Use of Rural and Agric. Land (RURAL) v. Pub. Serv. Comm'n of Wis., 2000 WI 129, ¶ 24, 239 Wis. 2d 660, 619 N.W.2d 888.

The deference allowed an administrative agency under due weight is not so much based upon its knowledge or skill as it is on the fact that the legislature has charged the agency with the enforcement of the statute in question. [Under the due weight standard] . . ., a court will not overturn a reasonable agency decision that comports with the purpose of the statute unless the court determines that there is a more reasonable interpretation available.

Id. (quoting UFE, Inc. v. LIRC, 201 Wis. 2d 274, 286-87, 548 N.W.2d 57 (1996)).

¶ 29. We apply de novo review when "there is no evidence that the agency has any special expertise or experience interpreting the statute[,] . . . the issue before the agency is clearly one of first impression, or . . . the agency's position on an issue has been so inconsistent so as to provide no real guidance." Brauneis v. LIRC, 2000 WI 69, ¶ 18, 236 Wis. 2d 27, 612 N.W.2d 635 (citations omitted).

¶ 30. Stoughton contends that we should apply de novo review because LIRC's decision was based on an interpretation of the disability provisions of the WFEA that was inconsistent with its first decision in this case and with prior cases that addressed the application of no-fault attendance policies to disabled employees. Geen contends that LIRC's decision is entitled to great weight deference, given the agency's experience and knowledge in application of the WFEA.

¶ 31. The court of appeals and the circuit court both concluded that LIRC's "because of disability decision was entitled to due weight deference. The court of appeals reasoned that "because the question presented here involves policy implications, and because LIRC offers expertise and experience in the interpretation of the WFEA's `because of disability' language," some deference was owed LIRC's decision. Stoughton Trailers, 295 Wis. 2d 750, ¶ 21. However, due to the "somewhat different approach" LIRC had taken than in prior cases addressing somewhat similar issues, the court of appeals determined that LIRC's decision was entitled to due weight rather than great weight deference. Id.

¶ 32. We agree with the court of appeals that LIRC's "because of disability decision is entitled to due weight deference. LIRC has not squarely addressed in any prior decision the question of whether a termination for exceeding the maximum number of permitted absences under a no-fault attendance policy was a termination because of disability within the meaning of the WFEA when some of the employee's absences were caused by disability and others were not. Because LIRC has acquired much experience interpreting "because of disability language in the WFEA, see, e.g., Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633, is well acquainted with the policies that underlie the disability protections of the WFEA, but has not previously addressed the particular issue presented in this case, we grant LIRC's decision on the termination "because of disability question due weight deference. Accordingly, we will affirm LIRC's decision if it is reasonable, and no other interpretation is more reasonable. See RURAL, 239 Wis. 2d 660, ¶ 24.

2

¶ 33. We begin our consideration of the "because of disability issue by briefly setting forth LIRC's analysis. On remand before LIRC, Stoughton argued that LIRC's first decision had concluded that Geen was not terminated because of his disability, contrary to the court of appeals' reading of LIRC's first decision as explained in Geen, 258 Wis. 2d 498. Stoughton also maintained that LIRC's prior decisions in Gordon v. Good Samaritan Medical Center, ERD Case No. 8551631 (LIRC, April 26, 1988), and Gee v. ASAA Tech., ERD Case No. 8901783 (LIRC, January 15, 1993), established that a termination for exceeding the maximum number of permitted absences under a no-fault attendance policy was not because of disability under the WFEA when only some of the absences were caused by a disability.

¶ 34. LIRC rejected Stoughton's argument that its first decision had held that the termination was because of disability, noting that its first decision was based on the conclusion that Stoughton had reasonably accommodated Geen, and had expressly reserved judgment on the question of whether Geen's termination was because of his disability. LIRC noted that the question of whether Geen was terminated because of disability was narrower than the ultimate question of whether Geen was discriminated against because of his disability. LIRC further noted that, regardless, it was bound by the court of appeals' conclusion in Geen regarding the "because of disability question under the law of the case doctrine.

¶ 35. LIRC concluded that its prior decisions in Gordon and Gee did not compel the result sought by Stoughton because neither squarely addressed the issue presented in this case. LIRC noted that while Gordon and Gee contained discussion of the relationship between no-fault attendance policies and disability discrimination claims under the WFEA, the discussion in both cases was unrelated to the holding, and therefore dicta. LIRC added that, to the extent that these two decisions suggested a different analysis, "the current commission simply takes a different view of this matter than did the commission which decided Gordon and Gee a decade and more ago." Geen v. Stoughton Trailers, Inc., ERD Case No. 199700618 at p. 12 (LIRC, September 12, 2003).

¶ 36. LIRC then concluded that because two of Geen's 6.5 "occurrences" under the Stoughton's no-fault attendance policy were caused by his disability, the termination was because of his disability. LIRC concluded that the "in-part" test (or "mixed-motive" test) for discrimination endorsed by the court of appeals in Hoell, 186 Wis. 2d at 609-11, was applicable in the present case. Quoting Hoell, 186 Wis. 2d at 609-10, LIRC set forth the "in-part" test and the remedies available under it as follows:

[I]f an employe[e] is terminated solely because of an impermissible motivating factor, the employe [e] normally should be awarded a cease and desist order, reinstatement, back pay, interest, and attorney's fees under the Wisconsin Fair Employment Act. If an employe[e] is terminated in part because of an impermissible motivating factor and in part because of other motivating factors, but the termination would not have occurred in the absence of the impermissible motivating factor, the Commission has the discretion to award some or all of the remedies ordinarily awarded. Finally, if an employe [e] is terminated in part because of an impermissible factor and in part because of other motivating factors, and the termination would have taken place in the absence of the impermissible motivating factor, the employe[e] should be awarded only a cease and desist order and attorney's fees.

Id. (emphasis in original).

¶ 37. Here, Stoughton renews its contention that the decision of LIRC that is on review conflicts with LIRC's first decision in this case, as well as its decisions in Gordon and Gee. In essence, Stoughton argues that these prior decisions compel the conclusion that an employer does not terminate an employee because of disability within the meaning of the WFEA if the termination is for violating a no-fault attendance policy when only some of the employee's absences were caused by the employee's disability.

¶ 38. Stoughton also contends LIRC erred in applying the "in-part" test of discrimination set forth in Hoell, 186 Wis. 2d at 609-11, to this case. It asserts that the "in-part" test applies only to cases involving discriminatory intent, and that a termination by application of a no-fault attendance policy is by definition non-discriminatory. Stoughton maintains that the proper test of discrimination in this case is the "determining factor" test, an alternate methodology for cases involving a mixture of legitimate and illegitimate reasons. Under this test, the analysis focuses on whether the complainant's disability was merely a "factor" in the termination and therefore not because of disability, or whether it was a "determining factor" and therefore because of disability. See Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 172-73, 376 N.W.2d 372 (Ct.App. 1985).

¶ 39. LIRC contends that it properly concluded that Geen was terminated because of disability where Stoughton counted two disability-related absences as "occurrences" under its no-fault attendance policy. LIRC acknowledges that there may be circumstances in which the number of absences under a no-fault attendance policy may be so insignificant that the termination may not be because of disability. It argues that this is not such a case, however, because nearly one-third of Geen's "occurrences" under Stoughton's policy were caused by his disability. LIRC and Geen both contend that LIRC correctly applied the "in-part" test of discrimination in Hoell to the present case.

¶ 40. As noted, due weight deference requires that we affirm an agency's determination when no other interpretation is more reasonable. Our interpretation set forth below is more reasonable, but because it comports with LIRC's determination, we affirm. We conclude that our interpretation is more reasonable because it is appropriate to the unique facts of this case and disposes of the case on more narrow grounds, and we further conclude that Stoughton's position is not more reasonable. See Borland v. Eau Claire County, 216 Wis. 2d 560, 566 n. 2, 575 N.W.2d 671 (1998) ("[W]e typically decide cases on the narrowest possible grounds.").

¶ 41. The relevant events relating to Geen's termination are as follows: Geen was absent from work on Friday, January 24, Monday, January 27, and Tuesday, January 28. When Geen returned to work on Wednesday, January 29, Droessler, Stoughton's human resources administrator, informed Geen that he would need a release from his doctor to return to work. She also provided Geen with the form letter indicating that he would need to submit a completed FMLA form to ensure that his absences were not counted as an "occurrence." On January 30, Geen provided Droessler with a doctor's note indicating that Geen was being evaluated for migraines. The next day, January 31, Geen provided Droessler another doctor's note clearing him to return to work, and indicating that his absences on January 27 and 28 were due to migraine headaches.

¶ 42. That same day, Droessler assessed Geen an "occurrence" under Stoughton's attendance policy for not providing a medical excuse for his January 24 absence, bringing Geen's total "occurrences" to 6.5, and terminated Geen for exceeding the six allowed "occurrences" under the no-fault attendance policy. Droessler informed Geen that he could seek review of the termination with Stoughton's Attendance Review Board within three working days, and that Geen could present additional medical documentation to the Board. Geen informed Droessler that he would be unable to obtain additional documentation from his doctor for at least one week because a follow-up exam had been scheduled in one week to evaluate the progress of his treatment for migraines.

¶ 43. Based on these facts, we must conclude that Stoughton violated its own no-fault attendance policy in terminating Geen. Stoughton's policy allowed its employees 15 days from the date of receipt of the form letter to submit FMLA documentation to ensure that a medically-related absence would not be counted as an "occurrence" under its no-fault attendance policy. However, Stoughton gave Geen only two days from the date it provided Geen with the form letter to submit the FMLA form to ensure that the absence was not counted as an "occurrence" before terminating him. Under Stoughton's policy, Stoughton should have provided Geen until February 13 to submit FMLA documentation to avoid having his final absence count as an "occurrence" under the no-fault attendance policy. By not waiting the full 15 days, Stoughton terminated Geen when he had accrued only 5.5 "occurrences" under Stoughton's attendance policy, and the termination was therefore invalid under the policy.

¶ 44. Because Stoughton did not follow the requirements of its no-fault attendance policy in terminating Geen, we conclude it may not claim the protection that may be available to it under the policy. Geen had not accrued the requisite number of "occurrences" necessary for termination. Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably based on the unique circumstances surrounding the termination of Geen than on LIRC's analysis of the relationship between Stoughton's no-fault attendance policy and the "because of element of a disability discrimination claim under the WFEA.

¶ 45. We note that LIRC's findings of fact indicate that Stoughton knew Geen was receiving medical treatment for migraine headaches when it terminated him. LIRC's findings also show that Geen had recently been absent from work because of migraines, and that Geen had been absent for several weeks from December 1996 to January 1997 with migraines. Additionally, LIRC's findings show that Stoughton provided Geen only three days to obtain a medical excuse for his final absence, when Geen indicated his doctor would not be able to provide an excuse until the following week.

¶ 46. Based on these facts, we conclude that LIRC's conclusion that Stoughton terminated Geen "because of his disability was reasonable.

¶ 47. Because we conclude that Stoughton violated its no-fault attendance policy in terminating Geen and therefore is not entitled to whatever protection the policy may provide, and that Geen had not accrued the requisite number of "occurrences" necessary for termination under that policy, we need not address whether a termination for exceeding the maximum number of absences allowed under a no-fault attendance policy is a termination because of disability when some of the absences were caused by a disability and others were not.

¶ 48. Stoughton argues that the application of the "in-part" test is inappropriate where an employer has a no-fault policy that is uniformly applied. Because Stoughton did not terminate Geen by proper application of its no-fault attendance policy, its argument for precluding the application of the "in-part" test must fail. We therefore determine that LIRC's application of the "in-part" test is reasonable under the facts of this case.

¶ 49. In sum, we conclude LIRC reasonably determined that Stoughton terminated Geen because of his disability. Based on LIRC's findings, we conclude Stoughton's termination of Geen violated its own no-fault attendance policy because Geen was not provided 15 days to submit documentation to avoid being assessed an "occurrence" under the policy. As a result, Geen had not accrued the requisite number of "occurrences" necessary for termination. Accordingly, we conclude that Stoughton is not entitled to whatever protection its no-fault policy may provide. We conclude that the circumstances surrounding Geen's termination demonstrate that LIRC's conclusion that Stoughton was terminated because of his disability was reasonable.

B

¶ 50. Having affirmed LIRC's conclusion that Stoughton terminated Geen because of his disability, we turn to the issue of reasonable accommodation. Because Stoughton does not assert that accommodation of Geen's disability would pose a hardship on it, the only issue remaining for review is whether Stoughton reasonably accommodated Geen's disability.

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¶ 51. We consider first the proper standard of review to apply to LIRC's interpretation and application of the WFEA's reasonable accommodation requirement. Stoughton contends that our review of this issue should be de novo because LIRC's decision regarding reasonable accommodation is contrary to its first decision in this case, and to its longstanding rule that employees do not have a right to the accommodation of their choosing. We conclude that LIRC's treatment of the reasonable accommodation issue is entitled to great weight deference.

¶ 52. This court addressed the standard of review generally applicable to reasonable accommodation determinations in Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, 264 Wis. 2d 200, 664 N.W.2d 651, and Hutchinson Technology, Inc. v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343. In Crystal Lake, this court, relying in part on the court of appeals' decision in Target Stores v. LIRC, 217 Wis. 2d 1, 13-14, 576 N.W.2d 545 (Ct.App. 1998), concluded that LIRC's interpretation and application of reasonable accommodation was entitled to great weight deference. Crystal Lake, 264 Wis. 2d 200, ¶¶ 29-30. The Crystal Lake court reasoned that great weight deference was appropriate because of the expertise LIRC had developed after having "had many opportunities to address th[e] issue" of reasonable accommodation under the WFEA. Id.

¶ 53. In the following term, this court applied great weight deference in another reasonable accommodation decision of LIRC, stating "[o]ur decision in Crystal Lake makes it clear that great weight deference is the appropriate standard of review for LIRC decisions regarding reasonable accommodation . . . under the WFEA." Hutchinson, 273 Wis. 2d 394, ¶ 24 n. 9. Following Crystal Lake and Hutchinson, we conclude LIRC's reasonable accommodation determination in this case is entitled to great weight deference. To the rationale explained in Crystal Lake and Hutchinson, we add only that the reasonableness of an accommodation necessarily depends upon the facts of a given case, and is the sort of determination for which LIRC, by virtue of its experience in applying the relevant legal principles to a range of different sets of facts, has developed expertise meriting great weight deference.

¶ 54. Stoughton cites no published case in which a Wisconsin court has applied de novo review to a reasonable accommodation decision of LIRC. Moreover, we disagree with Stoughton's arguments for applying de novo review in this case. Regarding the fact that LIRC reached a different conclusion here than in its first decision, we note that LIRC's second decision was influenced by the court of appeals' decision and order of remand. More importantly, and unlike LIRC's treatment of the "because of question, LIRC applied the same legal standard for reasonable accommodation that it has applied in prior cases. Finally, for reasons discussed later, we disagree with Stoughton's argument that LIRC's decision violates the rule that an employee has no right to pick his or her own accommodation.

¶ 55. We therefore conclude that great weight deference is the proper standard of review here. Accordingly, "[w]e will uphold LIRC's interpretation of [the] statute, if it is reasonable and compatible with the plain meaning of the statute even if another interpretation may be more reasonable." Hutchinson, 273 Wis. 2d 394, ¶ 24.

2

¶ 56. In addressing the requirement of reasonable accommodation, this court has recognized "the important role that management prerogatives play in the success of a business." Hutchinson, 273 Wis. 2d 394, ¶ 29. As this court has explained, "a business must have the right to set its own employment rules to encourage maximum productivity," but "such rules do not exist in a vacuum, [and] must bend to the requirements of the WFEA." Id. To reasonably accommodate an employee with a disability under Wis. Stat. § 111.34(1)(b), an employer need only provide an accommodation that is reasonable under the circumstances, though it may not be the accommodation preferred by the employee. However, this court has also described "the WFEA [as] `a remedial statute [that] should be broadly interpreted to resolve the problem it was designed to address,'" and has specifically applied this principle when interpreting the reasonable accommodation requirement of § 111.34(1)(b). See Crystal Lake, 264 Wis. 2d 200, ¶ 46 (citation omitted).

¶ 57. LIRC concluded on two separate bases that Stoughton failed to reasonably accommodate Geen's disability. First, LIRC concluded that Stoughton refused to reasonably accommodate Geen by failing to provide Geen with the 15 days required under its attendance policy to submit a completed FMLA form to excuse his final disability-related absence. Second, LIRC concluded that Stoughton refused to reasonably accommodate Geen by failing to extend to him "clemency and forbearance" by temporarily tolerating his disability-related absences while the medical intervention that had already begun was allowed to take its course and eventually resolve the problem of his absences. We examine LIRC's analysis of both these grounds in turn.

¶ 58. LIRC's analysis begins by addressing the reasonable accommodation question in the terms set forth in the remand order of the court of appeals, "whether the FMLA or regulations enacted thereunder affect Stoughton's claim that it reasonably accommodated Geen's disability, and if so, how." Geen, 258 Wis. 2d 498, ¶ 36. In Geen, the court of appeals focused on Stoughton's failure to provide Geen with 15 days to submit a completed FMLA form to excuse his January 24 absence, which it concluded "suggests that Stoughton may not have fully complied with the FMLA." Id., ¶ 25. LIRC read the court of appeals' opinion in Geen to effectively reject all of Stoughton's arguments regarding its failure to provide Geen with 15 days to submit the FMLA form and its duty to reasonably accommodate. See Geen, 258 Wis. 2d 498, ¶¶ 26-30. Based on the law of the case doctrine, and on LIRC's independent conclusion that the court of appeals' analysis was more persuasive than Stoughton's, LIRC concluded that Stoughton refused to reasonably accommodate Geen by failing to provide Geen with 15 days to submit the FMLA form.

¶ 59. Stoughton contends that LIRC's decision improperly substitutes Geen's preferred reasonable accommodation for that offered by Stoughton. Stoughton maintains that it reasonably accommodated Geen by permitting him to remove the "occurrences" assessed for his extended absence from December 1996 to early January 1997 and for January 24 by providing him with an FMLA form which he could complete and submit to avoid being assessed an "occurrence." We disagree and conclude that LIRC's determination that Stoughton refused to reasonably accommodate Geen by failing to allow him sufficient time to submit documentation to avoid being assessed an "occurrence" was reasonable.

¶ 60. Stoughton attempts to conflate its treatment of Geen's December 1996 to January 1997 extended absence with its treatment of his final absence that put him over the number allowed by Stoughton's attendance policy. We note that Geen has not challenged Stoughton's assessment of an "occurrence" for his extended absence from December 1996 to early January 1997. And it would appear that Stoughton provided Geen with ample opportunity to avoid this first "occurrence" by submitting a completed FMLA form, but Geen failed to do so.

¶ 61. Stoughton treated this first disability-related "occurrence" very differently than the second disability-related "occurrence." Contrary to Stoughton's claims, it did not provide Geen with sufficient time to submit a completed FMLA form to avoid being assessed an "occurrence." Stoughton terminated Geen two days after providing him with its standard letter informing him that he had 15 days to submit the FMLA form. Droessler informed Geen that he had three days to submit adequate documentation to excuse the absence, even though Geen informed her that he would be unable to get such documentation from his doctor for at least a week. On these undisputed facts, we affirm LIRC's determination that Stoughton refused to reasonably accommodate Geen by failing to give him sufficient time to submit documentation to avoid being assessed an "occurrence."

¶ 62. LIRC also concluded that Stoughton refused to reasonably accommodate Geen by failing to extend to him "clemency and forbearance" in the form of temporarily tolerating his absences while the medical intervention that was already underway had a chance to resolve the problem of his disability-related absences. LIRC highlighted the court of appeals' decision in Target Stores. There, the employee, Crivello, had sleep apnea, which caused her to doze off at work, a violation of a company "loafing" rule. After several somnolent incidents, and shortly after beginning a new treatment for her sleep apnea, Crivello was terminated. Applying a great weight standard of review, the court of appeals upheld LIRC's conclusion that Target Stores had failed to reasonably accommodate Crivello by not exercising "clemency and forbearance" in immediately discharging Crivello and not allowing sufficient time to permit the medical treatment to address the problem. Target Stores, 217 Wis. 2d at 17-18. The Target Stores court explained:

LIRC's interpretation of "reasonable accommodation" to include forbearing from enforcing the loafing rule while Crivello is undergoing treatment is reasonable. Like a leave of absence, forbearance from enforcing the loafing rule is a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility. Whether either [a leave of absence or forbearance from enforcing an employment rule] is a reasonable accommodation in a given case will depend on the facts and circumstances of that case.

Id. at 19. The court of appeals rejected Target Stores' position that "an accommodation is reasonable only if it will immediately remove the difficulty in performing job-related responsibilities caused by the handicap." Id. at 18.

¶ 63. LIRC observed that Target Stores "was similar in many respects to [Geen's] case." Geen, ERD No. 199700618 (LIRC, September 12, 2003).

In this case, Geen's migraine condition was sometimes causing him to miss work. However, as was the case in Target Stores, Geen's problem had only recently been diagnosed, and he was still at a fairly early stage of treating his disorder. As Crivello had been, Geen was still working with physicians to determine effective medications and to adjust them. It was entirely possible, that development of an appropriate treatment regimen would significantly reduce or even eliminate the problem of periodic absences due to migraine attacks.

Id. at pp. 18-19. LIRC noted that this court in Crystal Lake accepted LIRC's interpretation that a reasonable accommodation did not necessarily require that an employee be able to perform all job-related duties, only some or most, and that as long as the employee could perform some of the job duties, modification of the duties could be a reasonable accommodation required of the employer. See Crystal Lake, 264 Wis. 2d 200, ¶ 52.

¶ 64. Applying great weight deference to the second part of LIRC's reasonable accommodation determination, we conclude that LIRC's determination that Stoughton refused to reasonably accommodate by failing to extend "clemency and forbearance" was also reasonable.

¶ 65. LIRC reasonably concluded that an employer should exercise "clemency and forbearance" by not immediately terminating an employee where, as here, the employer knows a medical intervention is already underway that has not had the chance to take effect to potentially resolve the problem of the employee's absences.

¶ 66. LIRC's conclusion is consistent with Wis. Stat. § 111.34(1)(b), and is in harmony with both the express purpose of the WFEA "to encourage and foster to the fullest extent practicable the employment of all properly qualified individuals" regardless of disability or other protected status, and its directive that its provisions "be liberally construed for the accomplishment of this purpose." Wis. Stat. § 111.31(3).

¶ 67. As set forth in LIRC's decision, "clemency and forbearance" is not an open-ended requirement mandating that an employer indefinitely suspend its attendance requirements for the disabled employee. Such a mandate would not be a reasonable accommodation within the meaning of the WFEA. Rather, "clemency and forbearance" requires that an employer "forbear" by temporarily tolerating an employee's disability-related absences under circumstances similar to those presented in this case. It requires "a temporary accommodation to permit medical treatment which, if successful, will remove the difficulty in performing the job-related responsibility." Target Stores, 217 Wis. 2d at 19. Here, where Stoughton immediately discharged Geen, LIRC's determination that Stoughton did not exercise "clemency and forbearance" is reasonable.

C

¶ 68. Finally, Stoughton challenges the remedy ordered by LIRC. Stoughton contends that if the "in-part" test set forth in Hoell applies, as we concluded it does under the unique facts of this case, supra, ¶ 48, the remedy ordered by LIRC, reinstatement and back pay, was not authorized by Hoell. We disagree, and conclude that LIRC properly exercised its discretion in determining the award based upon the correct interpretation of the WFEA and the "in-part" test as described in Hoell.

¶ 69. Under Wis. Stat. § 111.39(4)(c), LIRC (or DWD) may award reinstatement and back pay. In general, LIRC (or DWD) has the discretion to award to a prevailing complainant some or all of the remedies available under subchapter II of Chapter 111. Wis. Stat. § 111.39(4)(c).

¶ 70. In Hoell, 186 Wis. 2d at 608-11, the court of appeals endorsed LIRC's statement of the remedies specific to a "mixed-motive" case. As noted above, when the court determines in a "mixed-motive" case that the termination would not have occurred in the absence of the impermissible motivating factor, LIRC has the discretion to award some or all of the following remedies: a cease and desist order, reinstatement, attorney's fees, back pay and interest. Id. at 609-610. Only when LIRC determines that the termination would have occurred even in the absence of the impermissible factor is the remedy limited to a cease and desist order and attorney's fees. Id.

¶ 71. In this case, LIRC expressly concluded that Geen would not have been terminated but for his disability-related absences. LIRC apparently determined that the full scope of remedies was appropriate here. We conclude that LIRC properly exercised its discretion in making this determination based upon a correct application of the legal standard provided in Hoell and the WFEA.

III

¶ 72. In sum, we conclude a more reasonable basis for LIRC's decision is that Stoughton did not follow its own no-fault attendance policy in terminating Geen when it failed to provide him with 15 days, as allowed under the policy, to submit documentation to avoid being assessed an "occurrence." Because Stoughton did not follow its own no-fault attendance policy, it may not claim whatever protection that policy may provide in its termination of Geen. Thus, LIRC's conclusion that Geen was terminated because of his disability is more reasonably grounded on the circumstances surrounding that termination. Based on these circumstances as set forth earlier in this opinion, we conclude that LIRC's conclusion that Stoughton terminated Geen because of his disability was reasonable. We therefore do not address the issue of whether a termination for exceeding the maximum number of absences permitted under a no-fault attendance policy is because of disability under the WFEA when some of the absences were caused by disability and others were not.

¶ 73. We further conclude that LIRC reasonably interpreted and applied the WFEA in determining that Stoughton failed to reasonably accommodate Geen. Additionally, we conclude that its ordered remedy was reasonable. Accordingly, we affirm. By the Court. — The decision of the court of appeals is affirmed.

¶ 74. PATIENCE D. ROGGENSACK, J., did not participate.