VIVIAN GANT, Complainant
MT CARMEL HEALTH AND REHABILITATION CENTER, Respondent
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 conclusions in that decision as its own, except that it makes the following modifications:
1. The following paragraph is added as paragraph 9 of the FINDINGS OF FACT:
"The only basis Ms. Gant offered in support of her claim of disability discrimination was that she believed that the respondent had already completed a check of her references. However, Ms. Gant conceded that no one had told her that her reference check had been completed at the time Ms. Steele extended an offer of employment to her. (Summary of Proceedings, pp. 2-3). Further, she admitted that she had no other information that would tell her whether the reference check was done before or after Ms. Steele extended the offer of employment to her. Id."
2. Paragraph 3 of the CONCLUSIONS OF LAW is deleted and the following paragraph is substituted therefor:
"Alternatively, assuming that Ms. Gant is an "Individual with a disability" as defined in Wis. Stat. § 111.32(8), she failed to establish probable cause to believe that the respondent discriminated against her on the basis of disability."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 30, 2001
gantviv2 . rmd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ James A. Rutkowski, Commissioner
Vivian Gant alleges that the respondent, a nursing home, discriminated against her in violation of the Act by refusing to employ her on the basis of disability -- hepatitis B. The commission finds that Ms. Gant failed to present sufficient evidence to indicate that a reasonable ground exists to believe that a violation of the Act has been committed, however.
On October 28, 1999, Ms. Gant completed an application for employment with the respondent as a certified nursing assistant (CNA). Ms. Gant subsequently had two interviews with the respondent during November 1999. Ms. Gant testified that her next contact with the respondent was when Ms. Steele called and told her that "I was hired." At the respondent, offers of employment are extended to individuals conditioned on, among other things, receipt of favorable references, and, depending on the position, a physical examination. (See Respondent's Exhibit #1, page 4.)
Ms. Gant testified that she then scheduled a physical as instructed by Ms. Steele.
Upon satisfactory completion of all the conditions required for employment, Ms. Gant was to begin a six-week training course starting in January 2000.
On the date Ms. Gant was scheduled for a physical, she stated on a form, apparently a health questionnaire, that she had hepatitis B. Ms. Gant was then given a physical.
Ms. Gant testified that her next contact with the respondent was in December 1999, when she called to inquire if she would be starting the CNA training class in January 2000. Ms. Gant testified that Ms. Steele informed her that she would not be hired, and that the reason was because "something was wrong" with her references.
The only basis Ms. Gant offered in support of her claim of disability discrimination was that she believed that the respondent had already completed a check of her references. However, Ms. Gant conceded that no one had told her that her reference check had been completed at the time Ms. Steele extended an offer of employment to her. (Summary of Proceedings, pp. 2-3). Further, she admitted that she had no other information that would tell her whether the reference check was done before or after Ms. Steele extended the offer of employment to her. Id.
The ALJ apparently concluded that Gant had no disability on the basis of her testimony that the only symptom she has is a slight pain in her liver.
Under the Fair Employment Act the term disability is defined much broader than that, however. Wisconsin Statute § 111.32(8) provides as follows:
"(8) 'Individual with a disability' means an individual who:
(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;
(b) Has a record of such an impairment; or
(c) Is perceived as having such an impairment."
The Attorney's Textbook of Medicine, 227.41, Matthew Bender & Co. Inc., 3d Edition, states the following about hepatitis B:
"Hepatitis B is transmitted parenterally (through blood), especially in connection with IV drug use, sexually, and perinatally and becomes chronic in 20 percent of cases (Aach, et al., 1990). The chronic state carries a high risk of sequelae such as cirrhosis and hepatocellular carcinoma."
Further, this treatise states that:
"Approximately 80 percent with hepatitis B and 50 percent of those with hepatitis C also recover; the rest develop chronic hepatitis and other late sequelae and/or become chronic carriers of the virus (Aach, et al.,)(see 227.48). In rare cases, usually involving hepatitis B or C, a fulminant disease develops. This is characterized by hepatic coma and liver failure and has a potentially fatal outcome."
Id., at 227.42.
Nevertheless, due to Ms. Gant's admissions that no one had told her that her reference check had been completed at the time Ms. Steele extended an offer of employment to her and that she had no other information that would tell her whether the reference check was done before or after Ms. Steele extended the offer of employment, the commission finds that there is no probable cause to believe that the respondent refused to hire Ms. Gant on the basis of disability. While it is possible that the respondent could have refused to hire Ms. Gant on the basis of disability, the record fails to demonstrate probable cause to believe that the respondent refused to hire her for that reason. The concept of probable cause set out in Wis. Admin. Code § DWD 218.02(8) focuses on probabilities, not possibilities. Boldt v. LIRC, 173 Wis. 2d 469, 475, 496 N.W.2d 676 (Ct. App. 1992).
Contrary to Ms. Gant's hearing testimony that no one had told her that her reference check had been completed at the time Ms. Steele "told her that she was hired," on appeal Ms. Gant asserts that when Ms. Steele "offered her the job," Ms. Steele stated that a reference check had been done and that everything looked good. However, in addition to the obvious fact that the assertion on appeal is inconsistent with Ms. Gant's hearing testimony, it also cannot be considered as evidence by the commission since it was not presented at the hearing. The commission cannot consider factual assertions made in the petition for review, which were not also made at the hearing.
In fact, Ms. Gant makes a number of assertions in her petition that were not presented as testimony at the hearing before the ALJ. (They include assertions about taking another physical, being told by a nurse that having been infected with hepatitis "could (affect her employment with the respondent) if it was contagious," and being told by the nurse that she needed to have her doctor fax a letter stating whether or not her hepatitis was contagious, but the nurse "never gave me the fax to give to my doctor so that he could fax her over the information she needed.")
The law, however, requires that the commission's review be based solely on the testimony and documents presented at the hearing before the ALJ. For this reason, the commission cannot consider factual assertions made in the petition for review, which were not also made at the hearing. Since the commission's review must therefore be based on the evidence submitted at the hearing that has already been held, the commission will not address or consider the factual assertions made by Ms. Gant that are not supported by the record.
cc: Sabin S. Peterson
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