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

THOMAS L HAGGERTY, Complainant

LEAR SEATING CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603734, EEOC Case No. 26G962002

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 June 16, 2000
haggath.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In his petition for commission review the complainant argues that the respondent's failure to file its answer until the third day of hearing resulted in a denial of due process. The complainant states that it is not fair he was required to plead each and every aspect of his claim or have it thrown out, while the respondent was not required to serve and file an answer. This argument fails. While the Division's rules specifically provide that a statute of limitations defense may be deemed waived if not raised in a timely filed answer, they do not contemplate the waiver of other affirmative defenses not timely raised. Moreover, the rules do not provide for a default judgment as a remedy for failure to file a timely answer. Instead, the commission has held that, if the complainant raises a timely objection to the respondent's failure to file an answer, and can demonstrate that he was prejudiced because of that failure, the complainant is entitled to a new hearing after receipt of the answer. See Smith v. Prairie Homes (LIRC, August 12, 1981). Here, the respondent's failure to file a timely answer resulted in no prejudice to the complainant, who was aware of the respondent's position well in advance of the hearing, and prepared and presented his case accordingly. Thus, while the complainant may not consider it fair that the respondent was permitted to submit its answer in an untimely fashion, he cannot credibly argue that he was denied due process as a result.

Next, the complainant takes issue with the administrative law judge's finding that there is no other example of a "sit-down only" restriction. The complainant maintains that the administrative law judge should not have ruled out employe Todd Feger, whose restriction was "sedentary job." This argument also fails. As the respondent's ergonomics expert testified at the hearing, sedentary work is not the same as "sit-down" work--the latter contemplates a complete prohibition on any standing activity, the former does not. Further, and more importantly, the evidence indicates that the respondent was unable to accommodate Mr. Feger's restriction, because it had no sedentary job available. Thus, even if the complainant could establish that he and Mr. Feger were similarly situated, this would not assist him in proving that a reasonable accommodation was available which the respondent refused to provide.

The complainant also contends that the administrative law judge improperly excluded all of the testimony of the complainant and his brothers because of inconsistencies in their testimony, but failed to provide enough specifics for the complainant to refute the claimed discrepancies. He further argues that the administrative law judge failed to mention the gross inconsistencies in the testimony of the respondent's witnesses vis-à-vis their prior depositions and responses to interrogatories. Again, this argument lacks merit. In the first place, the administrative law judge's decision does contain a fairly detailed explanation of the administrative law judge's credibility impressions, and addresses the complainant's arguments regarding the depositions and interrogatories. Further, the commission has independently reviewed the record and, based upon that review, agrees with the administrative law judge's credibility assessment. Moreover, the fact that the administrative law judge found the respondent's witnesses to be more credible than the complainant's does not mean that he excluded all of their testimony. While greater weight may have been accorded the testimony of the respondent's witnesses, it is clear from the decision that the complainant's witnesses were heard and their testimony considered. The disposition of this matter does not depend solely upon an assessment of witness credibility but hinges, in large part, on testimony that was unrebutted and, in some instances, supported by written documents. The respondent's occupational health nurse and ergonomic evaluator testified, without rebuttal, that they reviewed all of the job descriptions to determine whether a job existed which the complainant could perform with or without an accommodation, but concluded there was no such position. The written job descriptions contained in the record support this conclusion. Although the complainant maintained that there were jobs he could have done, he failed to demonstrate this was the case, and it is clear that, pursuant to the collective bargaining agreement, any job specifically created to comply with his restrictions would have to be posted and awarded on the basis of seniority. For these reasons, along with the other reasons discussed by the administrative law judge in his decision, the commission concludes that no violation of the Wisconsin Fair Employment Act occurred. Accordingly, the dismissal of the complaint is affirmed.

cc:
Richard R. Grant
William W. Ehrke

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