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


RONALD J. KLEIN, Complainant

NEENAH JOINT SCHOOL DISTRICT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199601132, EEOC Case No. 26G960943


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:

In paragraphs 12 and 13 of the FINDINGS OF FACT, the dates "May 26, 1996" are deleted and replaced with the date "May 26, 1995."

DECISION

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

Dated and mailed: November 14, 1997
kleinro.rmd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, Ronald Klein, was employed a little over three years as a custodian for the respondent, a school district. Klein, who suffered from depression and panic attacks, signed a separation agreement on the advice of his union representative on May 26, 1995, resulting in the termination of his employment with the respondent. Klein apparently first provided indication of his condition in April of 1995 after becoming emotionally upset over his performance evaluation during a meeting with his supervisors. Klein subsequently saw a psychiatrist who prepared a prescription slip dated April 27, 1995, which indicated that he should be on medical leave until further notice. Thereafter, although released by his physician to return to work on May 11, 1995, Klein did not feel that he was ready to return to work. Klein was eventually re-released to return to work on May 23, 1995. David Brotski, the respondent's director of human resources, testified that he then scheduled a meeting for May 26, 1995, to discuss Klein's return to work and that at that time Klein's union representative asked to discuss a separation agreement. On May 26, 1995, a separation agreement was negotiated, resulting in the termination of Klein's employment.

In a complaint filed with the Equal Rights Division Klein alleged that he had been discriminated against on the basis of handicap. The division found no probable cause to believe that handicap discrimination had occurred and Klein appealed. After the hearing on Klein's complaint of alleged handicap discrimination, the administrative law judge issued a decision concluding that Klein had failed to establish probable cause to believe that the respondent had discriminated against him by refusing to reasonably accommodate a handicap or by terminating his employment because of a handicap, in violation of the Wisconsin Fair Employment Act. Specifically, the ALJ found that the May 26 meeting was intended to resolve Klein's request to return to work with accommodation and that the respondent was prepared to allow Klein to return to work with the accommodation he sought. Further, the ALJ found that the respondent did not terminate Klein's employment because of a handicap, Klein voluntarily terminated his employment on the recommendation of his union representative.

On appeal Klein apparently contends that Brotski's testimony that the meeting scheduled for May 26, 1995, was for the purpose of returning him to work should not be believed because Brotski lied in other testimony, including testimony that he (Klein) had not disclosed at a April 25, 1995 meeting that he had a medical problem and was under medication for it, and because Brotski stated that he was not aware prior to the May 26, 1995 meeting of any separation agreement, when the respondent's counsel had contacted his union representative two days before that meeting to discuss a possible separation agreement. Klein's contention cannot be sustained. There is no reason to conclude that Brotski's testimony about the purpose of the May 26, 1995 meeting should not be believed. Klein's union representative himself testified that prior to the May 26 meeting he had only "discussed the possibility" of a settlement with the respondent's counsel, that in his mind on May 26, 1995, he thought it would be best to get a separation agreement and that he felt that if they did not reach a satisfactory settlement the respondent would have taken Klein back.

Klein apparently further contends that the purpose of the May 26, 1995 meeting was not about returning him to work because his union representative had advised him that district administrators were afraid of him, and that if he tried to maintain his employment with the district the district would find a way to get rid of him. Klein has also asserted that apparently his only viable alternative was a separation agreement. These arguments also fail. Klein's union representative knew that the respondent was ready to return Klein to work if a satisfactory separation agreement could not be worked out. It was only speculation by Klein's union representative that the respondent would find a way to get rid of him. Klein was not forced to sign the separation agreement. There is no evidence which suggests that the respondent would try to get rid of Klein if he returned to work.

Finally, Klein has also made a vague claim about the state "work(ing) so hard to discredit a disabled persons right to fair and equitable employment," and the respondent "sabotaging" his job search with negative references. Klein has offered nothing to substantiate his claim about the state having worked so hard to discredit his right to fair and equitable employment. Further, as for the respondent's alleged sabotaging of his job search with negative references, this claim is not properly before the commission. The complaint form on which Klein had filed his claim of handicap discrimination provided written notice that it was also illegal to retaliate against a person who had filed a discrimination complaint. Accordingly, his recourse was to file a complaint with the division alleging retaliation. Klein apparently has not filed a complaint alleging retaliation.

cc: Robert Torgerson


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