Wis.LIRC ER Decision: Godlewski - December 14, 1999 - Disability discrimination - alcoholism - no proof of disability or of adverse action because of disability - referral to EAP not proof that employe was 'perceived' as having a disability

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

ALEXANDER F GODLEWSKI JR, Complainant

CITY OF MILWAUKEE
CITY CLERK, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199801528

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.

DECISION

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

Dated and mailed December 14, 1999
godleal.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant's burden of proof in a disability discrimination case is to show that he is disabled within the meaning of the Wisconsin Fair Employment Act and that there was an adverse employment action based upon that disability. See Copus v. Village of Viola (LIRC, December 10, 1987). The complainant devotes much of his petition to arguing that he has satisfied the first prong of that burden. On this point, the complainant maintains that the respondent's actions in referring him to the Employe Assistance Program (hereinafter "EAP"), which is operated by the Health Department of the City of Milwaukee, indicate he was perceived as having a disability. The commission disagrees. The mere fact that the respondent referred the complainant to EAP is not evidence that the respondent perceived him as having a disability and, indeed, at the hearing the complainant specifically acknowledged that employes were frequently referred to EAP for reasons unrelated to disabilities.

The complainant also states in his petition that he provided medical documentation showing his diagnosis of chronic anxiety disorder. Again, this argument fails. The document in question, which was marked as Exhibit 1, was not received into evidence due to the complainant's failure to file copies of his exhibits with the respondent within ten days of the hearing, as required under Wis. Admin. Code chap. DWD 218.17. Thus, even presuming the document in question were sufficient to establish that the complainant has a disability within the meaning of the Act--and the commission is not persuaded that this is the case--the commission would nonetheless be unable to rely upon it as a basis for finding that the complainant met the first prong of his prima facie case of disability discrimination.

Next, the complainant maintains that he deserved "protective rights" for treatment of his alcoholism as a "hidden disability," pursuant to the Americans with Disabilities Act, and that the respondent violated those "protective rights." This argument, too, is lacking in merit. In the first place, the commission notes that the instant case is before it under the Wisconsin Fair Employment Act, not the Americans with Disabilities Act. The Wisconsin Fair Employment Act (hereinafter "Act") contains no reference to "protective rights," nor is the commission aware of any provision of the Act that prohibits discrimination based upon so-called "hidden disabilities." While it is true that alcoholism can constitute a disability for purposes of the Act, the evidence adduced at the hearing failed to demonstrate that the complainant is an alcoholic or that the respondent perceived him as such.

The complainant also makes the argument that a request to accommodate his disability was triggered by his application for sick leave, which the respondent dismissed as being a "deceptive tactic" on the complainant's part and "chose to exploit by raising questions of the complainant's honesty and integrity." Although the commission is not completely certain what the complainant is alleging, it appears that he is referring to his request for sick leave beginning on July 1, 1997, a matter that cannot be construed as a request for a reasonable accommodation. To the contrary, because the evidence indicates that the complainant's request for sick leave was not in conjunction with any disability, but was related to a dental procedure, denial of the requested leave cannot be said to constitute a violation of the Act.

In addition to his arguments on the merits, the complainant also suggests that there were a variety of procedural defects at the hearing. For example, making specific reference only to his discharge notice, the complainant contends that the respondent submitted "false statements, false swearings, and documents materially altered." This argument is unpersuasive. While at the hearing the complainant contended that his copy of the discharge notice was different than the respondent's copy, the record indicates that, at the complainant's request, the administrative law judge marked his copy as an exhibit, rather than the respondent's. Thus, even if there were a basis upon which one could conclude that the respondent's document was altered in some way--and the commission does not find this to be the case--it is clear that the administrative law judge's decision was not based upon that document which the complainant finds objectionable, but upon his own unadulterated copy of the discharge notice.

The complainant also maintains that he was not allowed to enter into evidence documents which the respondent "possessed, submitted, altered and which raises questions." The complainant has not specified which documents he believes should have been admitted into evidence or why, nor has he explained what bearing those documents would have had on the outcome of his case. The commission does note, however, that because the complainant failed to submit an exhibit list prior to the hearing, as required under the administrative rules, the administrative law judge's decision to exclude from the record those documents with which the respondent was unfamiliar was fair and appropriate.

Finally, the complainant objects to the line of questioning the respondent's attorney was allowed to pursue with respect to whether or not Kenneth Ottman, his supervisor, was informed of his disability. The complainant maintains that such information is privileged and confidential. Once again, this argument fails. The complainant was the party who requested the hearing and who put his status as an individual with a disability at issue. Where the complainant alleged that he has a disability of which the respondent was aware, it was completely appropriate for the respondent to elicit testimony from him on cross-examination as to how the respondent would have become aware of that disability.

The complainant did not lose his case because he was denied a fair opportunity to submit his evidence or because the respondent was accorded an undue advantage at the hearing. Rather, the complainant did not prevail due to his own failure to meet his burden of establishing through competent evidence that he has a disability, within the meaning of the Act, and that the respondent engaged in an adverse employment action because of that disability. Where the complainant has failed to establish even a prima facie case of discrimination, dismissal of his complaint is warranted. Accordingly, the administrative law judge's decision is affirmed.

cc:
Melanie R. Swank

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