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

DWAYNE BAILEY, Complainant


ERD Case No. 199801010, EEOC Case No. 26G980964

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.


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

Dated and mailed June 30, 2000
baileyd.rsd : 101 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


In the brief filed in support of his petition for commission review, the complainant contends that the employer discharged him based on its perception that he had a disability arising from drug use, and therefore considered him the main suspect in a workplace theft. The complainant also points out that incidents underlying the disciplinary measures taken against him -- sleeping, tardiness, missing work, demanding money from coworkers, and not following protocol -- are drug behavior characteristics. He asserts that it was only after he mentioned his drug use to the employer and began treatment that he was discharged. The complainant finally suggests that his attorney did not have sufficient time to prepare his case.

Mr. Perez testified he first became aware that the complainant used excessive amounts of alcohol and that the complainant had "a drug problem" on February 17, 1997, when the complainant told him he planned to get treatment for a substance abuse problem. Thereafter, Mr. Perez helped the complainant complete paperwork to obtain a medical leave of absence to obtain treatment. In other words, the employer and Mr. Perez knew the complainant had problems with cocaine, or alcohol, or both, and had received treatment for those problems. However, the record does not indicate that Mr. Perez, or any member of the employer's management, was provided with a definitive report from a qualified practitioner diagnosing a nonvolitional substance abuse problem, or drug addiction.

The absence of a definitive report from a doctor or other practitioner explaining the nature of the complainant's condition -- and establishing that the complainant's substance abuse problem rose to the level where a disability could be perceived -- is critical in this case. The commission has previously explained:

"The significance of [the absence of a definitive report from a health professional about the nature of a substance abuse problem] lies in the unique nature of substance abuse `handicap.' A `drinking problem' for example, may or may not be a handicap, depending on whether it has progressed to the stage that it is `non-volitional.' See, Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 408, 271 N.W.2d 206 (1979). Apart from this inherently subjective point -- a point which must be passed on by a medical expert, Id. at 407 -- the nature of the problem as it appears to laypersons witnessing it may be the same in both cases. So while the evidence [may] show that [an employer's] agents perceived [an employe] as having a substance abuse `problem,' there [must be] clear evidence as to whether their perceptions extended to the necessary level of diagnosis. Basically, a complainant can not prove a `perceived' substance abuse problem adequate to meet the statutory test unless there is direct evidence that the agents of respondent alleged to have had the `perception' that there was such a problem, had actually been provided (and accepted) information that what the person was suffering from was medically assessed as non-volitional and thus potentially within the Connecticut General standard for a handicapping substance abuse problem. Here, no such information was apparently provided to respondent's agents, so there is no basis for concluding that they formed such a perception."

Elizabeth Geske v. H.C. Prange Company, ERD case no. 9102344 (LIRC, December 9, 1993).

Given this standard, the record establishes that the complainant neither has nor was perceived by the employer as having a non-volitional substance abuse problem or a substance addiction, nor did the employer perceive him as a having a history of such a condition. Despite his assertions about the adequacy of his attorney's preparation, nothing in the complainant's petition or brief leads the commission to question that conclusion. The ALJ properly dismissed the complaint with prejudice.

cc: Brenda S. Kasper

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