STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MIKE RAMOS, Complainant

STOUGHTON TRAILERS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199503384, EEOC Case No. 26G952032

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, except that it makes the following modifications:

1. The third sentence in paragraph 34 of the FINDINGS OF FACT is deleted and the following sentences are substituted therefor :

2. "Ramos did not receive the annual bonus for 1993. In 1993 Doverspike also promised Ramos a raise of $1,500 for 1994."

2. In paragraph 3 of the ORDER, the language contained in the parentheses beginning on line 2 is deleted and the following language is substituted therefor :

"(including a bonus calculated at the appropriate percentage of his 1993 salary and a promised raise of $1,500 for 1994)"

3. Paragraph 5 of the ORDER is deleted and the following is substituted therefor:

"That within 30 days of the expiration of time within which an appeal may be taken herein, Stoughton Trailers shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708.

DECISION

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

Dated and mailed March 26, 1999
ramosmi.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The respondent petitions for a review of the administrative law judge's decision which found that the respondent discriminated against the complainant by failing to recall him to work and by terminating his employment because of a perceived disability.

The respondent asks the commission to reverse the ALJ's decision and dismiss Ramos' complaint. As reasons therefor, the respondent argues that there has been no showing that the respondent perceived him as disabled or considered his medical condition as limiting his capacity to work, and that the complainant was not recalled and his employment terminated because there was no supervisory position available at the end of his disability leave. The commission finds, however, that considering that the complainant had been off work on medical leave for an extended period of time, that he had had numerous discussions with his supervisor and the personnel office about how bad a shape he was in physically, including notice to his supervisor after released to return to work that he was worried about returning to work because his condition was such that he would sometimes go 20 hours without sleeping, and that the respondent terminated his employment without even bothering to ascertain from his physician how his physical condition would impact upon his ability to resume work, it can be reasonably inferred from this evidence that the respondent perceived the complainant to be disabled.

Also, the record fails to support the respondent's argument that the complainant was not reemployed because there were no supervisory positions available at the end of his disability leave. As stated by the ALJ at page 13 of her decision:

".(N)one of the (respondent's) witnesses were able to provide a clear picture of how the new paint system, which was not yet in operation in October of 1994 and did not in fact, begin running until August of 1995, impacted on Stoughton Trailers' decision to terminate Ramos' employment.

Stoughton Trailers' witnesses did not explain why, if Morris was `covering' for Ramos in Plant 6 during his medical leave and Wheeler was `covering' for Morris in Plant 3, Stoughton Trailers could not have placed Ramos back in his old position in Plant 6, sending Morris back to Plant 3 and Wheeler back to his position as a working foreman, or retaining Morris in Plant 6 and placing Ramos in Morris' Plant 3 supervisor position."

The respondent further argues that the commission should disregard the ALJ's credibility determinations of its key witnesses because her impressions of them were erroneous. The ALJ found the complainant to be a credible witness, noting that his earnest rendition of the conversations he had with Stoughton Trailers' personnel during his medical leave was consistent throughout the hearing, while she found the testimony of Stoughton Trailers' witnesses to be forgetful, vague and inconsistent at crucial points. The commission is satisfied that the ALJ correctly assessed the witnesses' credibility.

Lastly, the respondent argues that there is no support for the ALJ's order that it provide the complainant with a $1,500 bonus for 1993 because he never testified that he was promised a bonus, he testified that he was expecting to receive a $1,500 raise. The respondent is correct in that the complainant did not specify the amount of bonus money that was owed him for 1993, his testimony was that he was promised a $1,500 raise in 1994. There can be no dispute that he was also entitled to a bonus, however. Supervisors were paid an annual bonus based upon a set percentage of their salary. Apparently the complainant had requested but not received from the respondent information regarding the percentage figure that was used for bonuses.

cc: Julie Ramos
Brenda S. Kasper

Appealed to Circuit Court.  Affirmed January 24, 2000.

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