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



ERD Case No. 200600147, EEOC Case No. 26G-2006-00634C

An administrative law judge for the Department of Workforce Development issued a decision in the above-captioned matter on April 23, 2007, dismissing the complainant's complaint of discrimination based upon disability and age. The complainant has filed a timely petition for review of the administrative law judge decision.

Based upon a review of the applicable law, records and evidence in this case, the Commission hereby issues the following:


The decision of the administrative law judge is set aside and this matter is remanded to the Division for continued proceedings before this administrative law judge, and, after the presentation of all the evidence by the parties, the issuance of a new decision on the complainant's complaint of discrimination.

Dated and mailed February 15, 2008
cappege . rpr : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The complainant brought this action under the Wisconsin Fair Employment Act alleging that the respondent denied him a reasonable accommodation for his disability and terminated his employment based upon his disability and age. This matter came before the administrative law judge, and is now before the commission, on probable cause. The complainant's burden in a probable cause proceeding is a lesser one than in a case on the merits. Probable cause has been defined as "somewhere between a preponderance and a suspicion." Hintz v. Flambeau Medical Center (LIRC, Aug. 9, 1989).

The administrative law judge granted the respondent's motion to dismiss the matter at the close of the complainant's presentation of evidence, concluding that the complainant failed to demonstrate he has a disability, within the meaning of the statute, failed to demonstrate that he was denied a reasonable accommodation, and failed to prove his employment was terminated. The commission considers that it was error to grant the respondent's motion for dismissal made at the end of the complainant's case in chief. While the commission does not disagree that the complainant's evidence does not indicate his employment was terminated, it concludes that he did meet his burden of demonstrating probable cause to believe that he has a disability within the meaning of the statute and that he requested and was denied a reasonable accommodation.

To prove disability discrimination under the Wisconsin Fair Employment Act (hereinafter "Act"), a complainant must establish that he or she is disabled, within the meaning of the Act. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term "disabled individual" as an individual who (a) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) has a record of such an impairment; or (c) is perceived as having such an impairment. An "impairment" for purposes of the Act is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. AMC v. LIRC, 19 Wis. 2d 706, 350 N.W.2d 120 (1984).

The complainant testified that he is a severe diabetic who takes insulin on a regular basis. The complainant did not explain whether or not his diabetes makes achievement unusually difficult for him, but indicated that it limits the capacity to work in that it interferes with his ability to work the night shift, since his blood sugar levels are adversely affected by work at those hours. The complainant indicated that he has worked the night shift in the past and has experienced this problem.

In support of his contentions, the complainant presented two letters from his physicians. One letter, written by the complainant's endocrinologist, states that rotating shifts would be detrimental to the complainant's medical condition (diabetes and hypertension), and that he should remain strictly on first shift. The second letter, written by the complainant's cardiologist, states that the complainant's diabetes is difficult to control on evening shift and recommends he be put back on the day shift. (See Exs. 1 and 2.)

The commission considers it unnecessary to decide whether the foregoing evidence is sufficient to establish probable cause to believe that the complainant has an actual disability because, even were it to conclude that it is not, the commission is nonetheless satisfied that the complainant met his burden of demonstrating probable cause to believe that the respondent perceived him as being disabled. (1)   The complainant testified that he told the respondent when he was hired that he had diabetes, and that his supervisor was aware of his diabetes. The complainant testified that he provided the respondent with the notes from his doctors indicating that, because of his diabetes, he should work on the day shift. Given those facts, the commission is persuaded that the complainant demonstrated probable cause to believe that the respondent perceived him as being disabled; i.e. having an impairment that limits the capacity to work. This is sufficient to render the complainant a "disabled individual" under Wis. Stat. § 111.32(8).

The evidence further demonstrates probable cause to believe that the complainant requested, and was denied, a reasonable accommodation. The complainant testified that his union committeeman, Mark Karaszewski, offered to trade shifts with him, that he notified the respondent of this offer, and that Mr. Karaszewski confirmed with the respondent that he was amenable to the arrangement. When the complainant proposed the shift-swapping arrangement to the respondent, his supervisor's response was, "We'll see," and the maintenance manager stated he would think it over. However, neither of these individuals raised the issue with the complainant again. The complainant testified that he made the request in late September, but by early October, when the new shifts went into effect, he had not been given permission to trade with Mr. Karaszewski, so began working on third shift.

The offer to swap shifts was, on its face, a reasonable accommodation that would have permitted the complainant to continue performing his job. The respondent's failure to respond to the complainant's request prior to implementing the new shift structure appears to have been, without more, tantamount to a denial of the request. The commission, therefore, believes that the complainant presented sufficient evidence to establish probable cause to believe that he is a disabled individual under the statute, and that he requested and was denied a reasonable accommodation. (2)

The respondent requested and was granted a dismissal at the close of the complainant's case, before putting on any evidence of its own. Consequently, no evidence was presented from the respondent regarding its understanding of the nature or extent of the complainant's medical condition, nor was any evidence presented regarding what, if any, steps had been taken to provide him with an accommodation. Had the respondent gone forward with its case, it may have been able to demonstrate that it did not perceive the complainant as being disabled, that the accommodation the complainant sought was not a reasonable one, or that to provide it would have created a hardship for the respondent.

The commission has repeatedly cautioned against the premature dismissal of a complaint before both parties' evidence has been heard. In a recent decision the commission noted, in relevant part:

"A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. . . ."

Roberge v. Department of Agriculture, Trade and Consumer Protection (LIRC, May 31, 2005). See, also, Holcomb v. American Convenience Products (LIRC, March 25, 1988)("Caution must be exercised in granting a request to dismiss at the close of a complainant's case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing.")

Often a respondent has a strong defense which could be presented expeditiously and without unduly prolonging the hearing, yet it opts to request a dismissal on the mistaken belief that such a resolution best serves its interests. The respondent may be better off taking the time to put on its evidence than run the risk that a higher level decision-maker will disagree with the administrative law judge's conclusion that the complainant failed to meet his evidentiary burden, as has happened here. As this case illustrates, granting the request for dismissal does nobody any favors -- the parties must undergo a second probable cause hearing, the administrative law judge who sought to shorten the process must now hold an additional hearing, and the commission is unable to finally resolve the case before it, because the record is incomplete. For these reasons, the commission strongly recommends that mid-hearing dismissals be granted only after careful consideration and in the most narrow of circumstances.

cc: Attorney C. Ann Martin

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) Prior to the hearing the administrative law judge sent a letter to the parties in which she erroneously advised the complainant that he would have to present competent medical evidence establishing he has an "actual disability." (emphasis in original) Since the statute specifies that a complainant can establish discrimination based upon a perceived disability, evidence of an actual disability may not be strictly necessary, and the administrative law judge's instruction on this point was incorrect. The injunction that the complainant must provide evidence of an actual disability was not the only piece of misleading information contained in the pre-hearing letter to the parties. The letter also advised the parties that hearsay would not be considered, although it is well-established law that hearsay may be admissible in an administrative proceeding and can be relied upon, provided that no ultimate finding of fact is based solely on hearsay, and understated the types of remedies that are available in a discrimination case. Even if the administrative law judge's letter contained no such inaccuracies, the commission would still question the propriety of the administrative law judge's endeavor to provide legal guidance to the parties in the presentation of their cases. The Division routinely provides the parties with a copy of its rules prior to hearing, as well as information on how to access a copy of the Equal Rights Decision Digest. The commission takes the view that further exposition by the administrative law judge with respect to hearing procedures and legal standards prior to the hearing is neither necessary nor appropriate.

(2)( Back ) While not reflected in the administrative law judge's decision, the administrative law judge found on the record that the respondent provided a reasonable accommodation by offering the complainant a lubricator position on the day shift. However, the complainant testified that the lubricator position would have entailed a substantial pay cut. Although an employee cannot always expect to receive the accommodation of his or her choice, transfer to a different position paying substantially less than what the complainant had been making at his regular job cannot be considered a reasonable accommodation, particularly in light of the availability of an alternative accommodation which would have enabled the complainant to continue working as a maintenance mechanic at his same rate of pay.


uploaded 2008/02/20