Wis.LIRC ER Decision: Neitzer, David - March 28, 2001 - Disability discrimination - allegation that union refused to refer member for jobs because of his disability (artificial leg following amputation) and his earlier disability discrimination complaint

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

DAVID L. NEITZER, Complainant

LABORERS LOCAL NO 931, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199801981, EEOC Case No. 26G981512

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:

Paragraph 3 of the CONCLUSIONS OF LAW is deleted and the following two paragraphs are substituted therefor:

"3. Mr. Neitzer failed to establish by a preponderance of the evidence that Local #931 violated the Wisconsin Fair Employment Act by discriminating against him in terms, conditions or privileges of labor organization membership because of his disability.

4. Mr. Neitzer failed to establish by a preponderance of the evidence that Local #931 violated the Wisconsin Fair Employment Act by discriminating against him in terms, conditions or privileges of labor organization membership because he has made a complaint under the Act."

DECISION

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

Dated and mailed March 28, 2001
neitzda . rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, David Neitzer, is a union member of the respondent, Laborers Local #931. He has been a union member since 1987. Pursuant to a labor agreement with various general contractors, the respondent refers its members to contractors who request construction laborers. As a result of a motorcycle accident in 1994, the complainant's right leg was amputated above the knee. In 1996 he filed a complaint against the respondent alleging that he was not being referred to jobs because of his disability. The complainant and respondent settled that complaint in 1997.

In the present complaint filed in June 1998, and amended in July 1998, the complainant alleged that the respondent would not call him for work in retaliation for his having filed the earlier complaint and because of his disability. The ALJ concluded that the complainant failed to establish that the respondent violated the Fair Employment Act and dismissed his complaint. The ALJ found that the respondent treated the complainant like it treated other members, except that it did not refer him to jobs that he would not be able to perform because of his work restrictions. Those work restrictions, which were imposed by the complainant's doctor in 1996, included not lifting over 50 pounds, not climbing a ladder greater than 8-10 feet in the air and not balancing at high locations without upper extremity support. The ALJ also noted that the complainant never provided the respondent with a doctor's note that modified his work restrictions.

In addition, the ALJ noted in his memorandum opinion that prior to the hearing the complainant was required to have specified what referrals he thought he should have received, but he failed to do so. The ALJ therefore limited the complainant to claiming that his disability or his having filed a complaint was a factor in his not receiving the five referrals mentioned in the initial determination and the one mentioned in his amended complaint. The ALJ also noted that the complainant conceded that: (1) he was on occasion called for work; (2) he did in fact have work restrictions that prevented him from doing some jobs, and (3) Local 931 was required by contract to call people in a certain order. That is, union members in group A first, then group B members, etc. Further, the ALJ noted that the respondent presented evidence showing that the complainant had been considered for other work but he ended up not working because: (1) he declined the assignment; (2) the job was not within his work restrictions, or (3) the employer did not want him. The ALJ noted that there was nothing presented regarding the work assignments where the complainant was considered, but did not receive the assignment, that indicated the respondent had not fully complied with the law.

On appeal the complainant argues that there was sufficient evidence to find that he was, in fact, treated differently than other members of the union, and that this treatment was a direct response to the initial complaint he filed against the union in "1997" (sic). As evidence, the complainant argues that while Tricia Leitermann, office manager for Local 931, testified that Thomas P. Sprader & Associates specifically asked that he not be sent on at least three occasions, and that he was on an "unwanted list," Steven DeClerc, who has been employed by Thomas P. Sprader & Associates for the past 13 years, testified that the complainant was never on any unwanted list and that they would have found work for the complainant had he been called.

This argument fails. As noted by the respondent, DeClerc had no first-hand knowledge concerning its behavior towards the complainant. First, DeClerc knows "very little" about the labor agreement between Sprader and Local 931. Second, he has no contact with the referral process. Rather, technicians, like himself, ask office employees to contact the respondent for referrals. Third, DeClerc was unfamiliar with the complainant's work limitations, and thus has only a partial understanding of what the complainant could or could not do.

Unlike DeClerc, however, Leitermann took general contractor calls for laborers, completed the work referral cards with information about the calls for laborers and referred union members out to work. Leitermann identified her notation on an August 27, 1996 work referral request by Jenny, an office employee of Sprader, stating that "Sprader said they don't want Dave Neitzer!" Leitermann (and the complainant himself) testified that under the contract referral procedure an employer can advise the union that it is rejecting laborers on the list. Leitermann testified that after August 27, 1996, up until this dispute arose, the respondent did not call the complainant for work at Sprader because Sprader said it did not want him.

Leitermann also identified two other laborers, neither of which had a disability, that Sprader said it did not want referred. Further, there was also evidence that other general contractors had advised the respondent that they did not want the complainant. Moreover, the evidence shows that even before his accident the complainant had never been a regular employee of a contractor and that he was not known as a productive worker.

Accordingly, the commission has affirmed the administrative law judge's decision dismissing the complainant's complaint.

NOTE: The commission has modified paragraph 3 of the ALJ's conclusions of law to make specific conclusions of law with respect to the complainant's claims of retaliation and discrimination on the basis of disability.

cc: Brian P. Beisenstein
Matthew R. Robbins

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