STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
TOM KRIEGL, Complainant
SAUK COUNTY/AGRICULTURE AND EXTENSION COMMITTEE, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199602791
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 conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed: August 26, 1998
kriegto.rsd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
The complainant, Tom Kriegl, appeals from the ALJ's grant of the respondent's motion to dismiss his complaint of alleged discrimination. Specifically, Kriegl appeals from the dismissal of his claim that the respondent discriminated against him by forcing him to resign from his position as Sauk County Agricultural Agent on the basis of perceived communication disability.(1)
In the dismissal order the ALJ noted Kriegl's allegations that the respondent became dissatisfied with Kriegl's communication and interpersonal skills, allegations that he was referred to as "goofy" and/or "screwed up" and that he was compared to the character Hank Kimball on the television show "Green Acres." The ALJ concluded, however, that while it is unfortunate if such remarks were made in reference to Kriegl, the remarks, even if true, do not rise to the level of indicating that the respondent perceived him to have a physical or mental impairment which made achievement unusually difficult or limited his capacity to work.
On appeal the complainant argues that the ALJ failed to explain why such remarks about his ability to communicate did not indicate the respondent perceived him to have a physical or mental impairment which made achievement unusually difficult or limited his capacity to work. He argues that moreover, the ALJ failed to explain or cite any cases defining the types of remarks that would actually rise to the level necessary to show that the respondent perceived him as having a communication impairment.
The ALJ correctly granted the respondent's motion to dismiss. As noted by the ALJ, a disabled individual is defined under the Act 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."
Wis. Stat. § 111.32(8) (emphasis added).
In City of La Crosse Police and Fire Commission v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987), the court held that "...the element of `impairment' is satisfied by showing either an actual lessening, deterioration, or damage to a normal bodily function or bodily condition, including the absence of such function or condition, or by showing that the condition perceived by the employer would constitute an actual impairment if it in fact did exist." 139 Wis. 2d at 759-760.
The complainant admitted during his sworn deposition testimony that he had taken a psychological assessment which showed that he did not suffer from any speech, communication or personality disorder. It is the complainant's burden to establish that he has a real or perceived lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or such bodily condition. 139 Wis. 2d at 761. As noted by the respondent, "The complainant has produced no authority for the assertion that calling someone `goofy' or `screwed up' or comparing the person to a fictional character is sufficient to establish that the person making those comments perceives the other as handicapped. Instead, he has simply asserted that the Respondent perceived him as having a communication handicap, based upon his characterization of the Respondent's statements....when the Complainant was asked to repeat exactly what the committee members told him, it became evident that the Respondent's remarks were aimed at the effect of the Complainant's personality and interpersonal skills on his job performance. The Complainant's discomfort with the Respondent's comments does not transform those remarks into a perception of disability."
Accordingly, the commission has affirmed the ALJ's order dismissing the complainant's case.
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(1)( Back ) The obsolete term "handicap" in the Wisconsin Fair Employment Act has been replaced generally with the term "disability" by recently-enacted remedial legislation. 1997 Wis. Act 112.