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

RANDY S BESAW, Complainant


ERD Case No. CR200703703, EEOC Case No. 26G200800103C

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. Paragraph 10 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"On or about August 21, 2006, the Department of the Army decided not to deploy Mr. Besaw, and released him from active duty effective September 1, 2006."

2. In the first sentence in paragraph 13 of the administrative law judge's FINDINGS OF FACT "Mr. Montgomery" is deleted and "Ron Montgomery, a human resources/labor relations specialist for the county," is substituted therefor.


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

Dated and mailed  November 30, 2012
besawra . rmd : 164 : 5


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


Factual findings

In the brief in support of his petition for commission review the complainant expresses disagreement with many of the findings of fact made by the appeal tribunal. However, the commission's review of the record reveals that the significant and material findings of fact made by the administrative law judge are supported by credible evidence. The commission has modified the administrative law judge's decision to correct a minor factual error identified by the complainant with respect to the complainant's release from National Guard service, and to provide clarification as to the identity of an individual referenced in the decision. Those minor modifications notwithstanding, the commission agrees with and adopts the findings of fact made by the administrative law judge.

Discrimination based upon disability

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, 119 Wis. 2d 706, 350 N.W.2d 120 (1984).

The commission and courts have held that, where the existence of a disability is in dispute, the complainant must present competent medical evidence establishing the nature, extent, and permanency of the alleged impairment. Erickson v. LIRC & Quad Graphics, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398 (2005). The complainant has not met his burden of presenting such evidence in this case. The complainant testified that he suffers from migraine headaches. In support of this assertion, he presented a document entitled "Chronological Record of Medical Care," which indicates that the complainant reported to a physician's assistant that he had a history of migraines for which he has taken prescription medications. However, the report does not contain a physician's diagnosis and does not constitute competent evidence of a permanent impairment. Attached to the complainant's medical record is an MRI report, which indicates a normal brain appearance but notes that the basilar artery is small in caliber. There is, however, no evidence in the report, nor any medical testimony elsewhere in the record, to suggest that this condition is connected to migraine headaches or that it constitutes an impairment.

Moreover, even if it could be found that the complainant was diagnosed as having migraine headaches, and that this condition constituted an impairment under the Act, the complainant has failed to meet his burden of establishing that such impairment amounted to a disability. The complainant testified that his headaches were occasional  (1)   and could be controlled by medication. He made no contention that the headaches placed any limitations on his normal functions or affected his ability to engage in major life activities. While the complainant did contend that the migraines limited his capacity to perform his job for the respondent, the evidence does not support this assertion. The complainant explained that he was often able to stay at work and perform his job duties even with a headache, but that the headaches caused him to report late for work or leave early on occasion--roughly one time every two to three months. The commission has specifically held that headaches that cause occasional absences from work are not considered to be disabilities within the meaning of the Act. Tschida v. State of WI UW-River Falls, ERD Case No. CR200503086 (LIRC Dec. 30, 2008); Wucherpfennig v. Personal Development Center, ERD Case No. CR200201383 (LIRC June 29, 2006). To the contrary, an impairment that requires little accommodation and does not interfere with the ability to perform the job is not one that can be said to limit the capacity to work. Tschida, supra.

In support of his contention that he has a disability, the complainant also presented a document from the Department of Veterans Affairs (hereinafter "VA") showing that he was assigned a 30% "service connection" for migraine headaches. However, the fact that the VA assessed a disability rating is not proof that the complainant has an impairment that amounts to a disability under the Act. The record does not include the medical evidence upon which the VA based its findings, and it contains nothing to establish that there was ever a medical diagnosis of a condition that would constitute a permanent impairment. Moreover, nothing in the report from the VA addresses the question of whether the complainant's headaches made achievement unusually difficult for him or limited his capacity to work. The complainant presented no evidence establishing what criteria were utilized in arriving at the disability rating, and the commission is unable to conclude that the criteria applied by the VA were the same as that applied in determining that an individual has a disability under the Act. See, Smith v. Actuant, ERD Case No. 200501651 (LIRC July 27, 2007).

In the brief in support of his petition the complainant also contends that the respondent perceived him as having a disability. However, while the complainant's supervisors were generally aware that the complainant suffered from migraines, there is no reason to presume that they perceived him as having a disability. Not every medical condition amounts to a disability protected under the Act, and an employer's knowledge of an employee's medical condition does not necessarily give rise to an inference that the employer viewed the employee as having a disability. In this case, the complainant never presented the respondent with any doctor's notes or medical restrictions, and never requested any accommodation other than to be able to leave a little early or report a little late if he had a headache, an accommodation of which he availed himself on only a very infrequent basis. See, Fields v. State of Wisconsin, ERD Case No. CR200302716 (LIRC Feb. 12, 2007)(the relative infrequency of the absences/tardiness attributed to the complainant's migraine headaches would tend to militate against a conclusion that the respondent perceived her as having a disability).

Finally, the complainant has contended that he established he had a record of a disability. The complainant has failed to elaborate upon this argument other than to assert that the records in question consisted of a) orders from the United States Army that returned him to work early; b) medical records; and c) the records provided in conjunction with the fitness for duty process. However, none of the documents referenced by the complainant in his brief establish that he had a record of a disability, within the meaning of the Act. Neither the medical records submitted by the complainant nor the documents prepared by the Department of the Army indicate that the complainant had an impairment that made achievement unusually difficult or limited the capacity to work. The records submitted in conjunction with the fitness-for-duty process are not part of the hearing record and, further, were offered at the hearing for the sole purpose of establishing the dates of appointments and costs that were incurred.

For the reasons set forth above, the commission agrees with the administrative law judge that the complainant failed to meet his burden of demonstrating that he is an individual with a disability, within the meaning of the Act. Moreover, the commission affirms the administrative law judge's findings of fact, and it agrees with the overall conclusion that no employment decisions were based upon the fact that the complainant had a disability or upon a perception that this was the case.

Discrimination based upon National Guard membership

The statute governing this decision provides that no employer may engage in an act of employment discrimination against any individual on the basis of "membership in the national guard, state defense force or any reserve component of the military forces of the United States or this state." Wis. Stat.  § 111.321.  (2)

The complainant's contentions are not that the respondent discriminated against him based upon his status as a member of the National Guard or because of his obligation to perform military service, but that the respondent discriminated against him once it learned that he had not been deployed to Iraq and was released from active duty. As noted in the administrative law judge's decision, it is not clear that these contentions, even if proven, would state a claim under the Act. The Act protects "membership in the national guard" and, as was clarified in the revised statute, prohibits discrimination because an individual performs, has performed, applies to perform, or has an obligation to perform military service.  (3)

Moreover, assuming, without deciding, that the Act's protections do extend to the status of not being deployed or of being removed from active duty, the evidence would not support a finding of discrimination. The complainant contends that the landfill manager, Jim Morris, exhibited animus towards him and created a hostile work environment based upon his inability to be mobilized, and that his actions in this regard were directly linked to the adverse job actions taken against him. However, the evidence adduced at the hearing does not support this. Mr. Morris denied having made any negative remarks about the complainant's inability to be deployed to Iraq, and the credible evidence suggests that the only time the subject came up was when the complainant raised it himself--when asked whether something was distracting him from doing his job safely, the complainant told Mr. Morris that he was upset about not being deployed and was considering suing the government. Mr. Morris responded by suggesting that the complainant consider availing himself of the respondent's employee assistance program, but made no further comment regarding the complainant's National Guard service. There is no credible evidence in the record to indicate that Mr. Morris, or anyone else at the respondent, harbored any animus towards the complainant based upon his failure to be deployed to Iraq or that it considered his status as a member of the National Guard in any of the employment actions at issue.


Attorney Michael Kuborn
Attorney Annie Raupp
Attorney John Haase

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(1)( Back ) In his petition for commission review the complainant argues that the administrative law judge incorrectly found that his migraine headaches were "occasional," when the evidence showed they were "chronic, periodic and prostrating." However, the administrative law judge's finding that the headaches were "occasional" is supported by the complainant's testimony that they occurred every two to three months. The administrative law judge made no finding regarding the severity of the headaches.

(2)( Back ) The statute has been amended subsequent to the filing of this complaint. Effective March 28, 2008, the Act provides that it is unlawful to discriminate against an individual based upon "military service," which is defined as "service in the U.S. armed forces, the state defense force, the national guard of any state, or any other reserve component of the U.S. armed forces." See Wis. Stat.  § 111.321 and  § 111.32(12g). The statute also provides, at 111.355(1):  Employment discrimination because of military service includes an employer . . . refusing to hire, employ, admit, or license an individual, barring or terminating an individual from employment, membership, or licensure, or discriminating against an individual in promotion, in compensation, or in the terms, conditions, or privileges of employment because the individual is or applies to be a member of the U.S. armed forces, the state defense force, the national guard of any state, or any reserve component of the U.S. armed forces or because the individual performs, has performed, applies to perform, or has an obligation to perform military service. . . .

(3)( Back ) Although this version of the statute was not yet in effect when the complainant filed his complaint, the Wisconsin Supreme Court has held that subsequent amendments to statutes may be accorded some weight in determining what the legislature intended in an earlier statute. State v. Cole, 2003 WI 59,  40, 262 Wis. 2d 167 (2003).


uploaded 2012/12/07