P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RYAN R SALZER, Complainant


ERD Case No. 9355028, EEOC Case No. 26G940531

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) issued a decision in this matter. A timely petition for review was filed.


The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:


1. In paragraph 4 of the administrative law judge’s FINDINGS OF FACT the date “June 11, 1991” is deleted and the date “January 11, 1991” is substituted therefor.


2. Paragraph 17 of the administrative law judge’s FINDINGS OF FACT is deleted and the following is substituted therefor:

“17. The initial screenings were performed by Chuck Bastings, who selected Gerald Bartoszewicz, Harvey Karnitz, Carl Hidely and the complainant to interview for the position.”

3. In the first sentence of paragraph 18 of the administrative law judge’s FINDINGS OF FACT the term “two employes” is deleted and the term “four employes” is substituted therefor.


4. The following paragraph is inserted after paragraph 1 of the administrative law judge’s CONCLUSIONS OF LAW:

“2. That the complainant is handicapped, within the meaning of the Act.”

5. Paragraphs 2 and 3 of the administrative law judge’s CONCLUSIONS OF LAW are renumbered accordingly.




The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed July 26, 1996
salzery . rmd : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner


In his petition for commission review the complainant argues that the administrative law judge erred in failing to find that he was handicapped within the meaning of the law. Although the administrative law judge's decision contains no specific finding or conclusion that the complainant was or was not handicapped, this was evidently because the administrative law judge concluded that the complainant's narcolepsy was not a factor in the adverse employment action. While the administrative law judge's failure to make any express legal conclusion on the question of whether the complainant was handicapped was not in error, the commission has nonetheless modified the decision to include a conclusion of law with respect to this question. The commission has previously held that narcolepsy is a handicap within the meaning of the law (Hennekens v. River Falls Police Department (LIRC, January 29, 1985) aff'd. City of River Falls Police Department v. LIRC, Pierce Cty. Cir. Ct. January 7, 1986) and, in this instance, the complainant's physician testified that narcolepsy, if left untreated, would make achievement unusually difficult or limit the capacity for work. Although in its brief to the commission the respondent suggests that the complainant is not considered to have a handicap because his symptoms can be controlled by medication, the respondent has failed to cite any legal authority for the proposition that an impairment which can be treated is not considered a handicap under the Wisconsin Fair Employment Act, and the commission is unaware of any such authority. Because the commission is satisfied that the complainant's narcolepsy did constitute a handicap within the meaning of the law, it has modified the administrative law judge's decision to reflect this.

While, as set forth above, the commission believes that the complainant has met his burden of establishing that he had a handicap, it concludes that he did not meet his burden of demonstrating that he was subject to an adverse employment action as a consequence. The complainant's argument is basically that his supervisor, Stan Mann, perceived that the complainant did not suffer from narcolepsy when he lapsed into sleep in 1991 and, therefore, that the complainant was not qualified as a supervisor, and that this perception was evidence of bias which manifested itself in his decision not to select the complainant for the Foreman II position. However, while the complainant's argument might have merit if Mr. Mann had decided against the complainant because of his past history of sleeping on the job, the evidence indicates that Mr. Mann's decision not to select the complainant was not based upon the sleeping incidents, but upon an assessment that the complainant lacked adequate interpersonal communication skills, a matter completely unrelated to the complainant's handicap tinder these circumstances, the fact that Mr. Marin may have doubted that the complainant's sleeping was due to narcolepsy does not warrant an inference that handicap discrimination occurred.

The complainant next contends that the respondent's only evidence of poor communication skills was a single incident involving a complaint filed by Pamela Garrison and that this complaint lacked substance. The commission disagrees. The complainant received disciplinary warnings for matters which reflected inadequate communication skills both before and after it was discovered that he had narcolepsy, and the record generally supports a finding that, under the complainant's supervision, his department was rife with interpersonal tensions. On the other hand, the individual who was ultimately selected for the position had supervised the same department for approximately one year without incident. Consequently, the commission sees no reason to believe that the respondent's explanation that it did not select the complainant for the position because of a lack of communication skills was untruthful or a pretext for discrimination.

The complainant also suggests that the respondent had a practice of assigning the Foreman II positions to the same individuals who had previously held the equivalent supervisory positions and that, if not for the fact that Mr. Mann was biased against him, he would have been offered the position. In support of this argument, the complainant points out that both Rick Follette and Paul Tanner were moved from their supervisor positions to foreman positions. This argument is unpersuasive. The fact that two other supervisors received Foreman II positions does not in and of itself prove that the respondent had a practice of assigning supervisors to the foreman positions. Further, given that the record contains no evidence regarding the qualifications of these individuals vis-…-vis any other workers who may have competed against them for the positions, there is simply no basis on which to conclude that the complainant was accorded less favorable treatment in the selection process.

Finally, the complainant argues that the administrative law judge erred in excluding evidence regarding the complainant's conversation with Don Booth, in which Mr. Booth allegedly told the complainant that he would have to be interviewed by Mr. Mann in spite of the complainant's concerns about the fairness of such an interview. The complainant contends that his testimony regarding Mr. Booth's statements to him should have been admitted as the admission of a party opponent. The commission considers it unnecessary to reach the question of whether the testimony in question would have constituted hearsay because, even presuming that it was admissible, it would have had no bearing on the outcome of this case. At most, the fact that the complainant told Mr. Booth that he did not think he could get a fair interview from Stan Mann and that Mr. Booth told him he would have to interview with Mann anyway might demonstrate that Mr. Booth was insensitive to the complainant's needs. It does not, however, demonstrate that Mr. Mann's decision not to select the complainant for the position of Foreman II, a decision which was made without consulting Mr. Booth, was based upon prohibited considerations. Further, although the complainant now contends that finding an unbiased interviewer would have been an appropriate accommodation to his handicap, there has been no assertion in this case that the respondent refused to provide a reasonable accommodation for the complainant, and the sole issue before the commission is that of whether the complainant was denied the Foreman II position because of his narcolepsy. Finally, the commission also notes that at the hearing the complainant testified only that he talked to Mr. Booth "about the fairness that I would have for an interview with Mr. Mann," but made no assertion that he explained to Mr. Booth that this concern was based upon his assessment that Mann was biased against him because of his narcolepsy. Thus, Mr. Booth's alleged refusal to select a different interviewer for the complainant could not be considered evidence of handicap discrimination.

Based upon its independent review of the record, and for the reasons set forth above, the commission concludes that the evidence failed to establish that the complainant was discriminated against in the manner alleged. Accordingly, the dismissal of the complaint is affirmed.


Note: As set forth in the first paragraph of the commission's memorandum opinion, the administrative law judge's decision has been modified to expressly include a legal conclusion that the complainant was handicapped within the meaning of the law. The remaining modifications are to correct a typographical error and to more completely set forth some of the facts relating to the interview process for the Foreman II position.


Marianne Goldstein Robbins
Fred G. Groiss

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