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



ERD Case No. 200501177, EEOC Case No. 26G-2005-01024

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development 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 conclusions in that decision as its own, except that it makes the following modification:

The date "March 9, 2005" in paragraph 9 of the FINDINGS OF FACT is deleted and the date "March 3, 2005" is substituted therefor.


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

Dated and mailed April 16, 2007
schlech . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


Charles Schlesner appeals from the ALJ's decision which concluded that he failed to prove he has a disability within the meaning of the Act, and failed to establish probable cause to believe the respondent violated the Act by discriminating against him in his terms and conditions of employment because of a disability, by refusing to reasonably accommodate a disability or by discriminating against him because he opposed a discriminatory practice under the Act.

Schlesner, who filed his instant discrimination charge on March 29, 2005, asserts that he has disabilities which include "a total left hip replacement, [an] anxiety and depression disorder and a left shoulder replacement." While there is testimony that Schlesner was for periods of times off work on medical leaves for these conditions, Schlesner failed to establish by competent medical evidence at the hearing the nature or permanency of these conditions, or how or to what degree these conditions made achievement unusually difficult for him or limited his capacity to work. In correspondence on appeal Schlesner asserts that his psychiatrist's office failed to supply his medical records for the hearing, and he asks whether he can now have these documents forwarded to the commission to prove he has a mental impairment which makes achievement unusually difficult and limits his capacity to work. However, he can not since the commission is unable to consider documents which were not part of the evidentiary record made at the hearing. By law, the commission is required to conduct its review based on the evidence submitted and received at the hearing. Sec. 111.39(5), Wis. Stats. Reinke v. Pick 'N Save Mega Food Centers (LIRC, 01/28/00).

Schlesner alleges that he was harassed by his supervisor, Marge Miller. For instance, Schlesner asserts that Miller didn't like the fact he was not coming in for overtime and expressed that there was nothing in the shop that hurts his arm when he complained that a certain job was hurting his shoulder, that Miller told him he needed to be back to work because a medical leave he was on had ended but she was wrong, that Miller moved him around to different jobs and that after one week back on the job following one medical leave he had been on for months she told him he had to "start hurrying up." However, Schlesner has presented no reason to believe that Miller had said or done these things because she believed he had a disability. What Schlesner's assertions about Miller wanting him to work overtime and stating he needed to be back to work before his leave ended indicate, if anything, is that Miller did not believe that he had a disability. Elizabeth Swiderski, who was the respondent's HR Manager at the time, testified that Schlesner, along with other employees, were regularly moved around to meet business needs. Also, Schlesner himself and Swiderski respectively described Miller as a "pretty strict boss" and "a tough supervisor." In addition, Swiderski testified that Schlesner's complaints regarding Miller were investigated and no evidence was found that Miller was treating Schlesner any differently than any other employee.

Schlesner also alleges that he was harassed by a co-worker. Schlesner asserts he believed the co-worker was harassing him on the basis of disability because the co-worker "knew when he got me upset I would go home." Schlesner asserts that the co-worker would "make faces at him, like cross his eyes and look in the air like I'm retarded, yelling out loud." In early 2005 Schlesner complained about two incidents involving the co-worker to HR personnel. Swiderski investigated the incidents by questioning Schlesner, the co-worker and other employees working in the area at the time of the incidents. Swiderski learned that in the first incident the co-worker became angry because of a work mistake made by Schlesner and called Schlesner a "dumb jack ass." In the second incident Schlesner had asserted that the co-worker threatened to "kick his fucking ass" but Swiderski was unable to obtain substantiation for this assertion. Swiderski concluded that the nature of conflict between Schlesner and the co-worker was work-related do to their different styles of work. Swiderski denied that Schlesner ever said words to the effect that the co-worker was picking on him because of a disability. Swiderski testified that on March 8, 2005, Schlesner and the co-worker were told of the company's expectations of them working together with dignity and respect and advised of the possibility of disciplinary action if any sort of disruptive behavior occurred. Swiderski further testified that she did not hear any complaint from Schlesner after this.

Schlesner has not made clear the basis for his claim that the respondent refused to reasonably accommodate a disability. He agrees that the respondent has granted him various medical leaves on various occasions. And although he asserts that he was denied use of sick days "on a couple of occasions", he admits that he did use sick days in 2004 and 2005. Also, while he has asserted that Miller had harassed him because she expected him to meet production demands, he admits that at the time he had been released to return to work it was to work 40 hours per week.

Finally, while Schlesner apparently claims that he was discriminated against because he opposed a discriminatory practice under the Act in that Miller had harassed him because of his complaint against the co-worker, Schlesner has failed to present any evidence which would support this assertion.


cc: Attorney Peter L. Albrecht

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