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



ERD Case No. 199803085, EEOC Case No. 26G990038

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 November 30, 2001
vallagr . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


In her petition for commission review the complainant argues that the credible medical testimony at the hearing established the existence of a disability. The complainant contends that her doctor assessed permanent restrictions on her ability to work, and that these restrictions clearly constitute a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work. The complainant takes issue with the administrative law judge's conclusion that, because her doctor was willing to remove her restrictions in order to preserve her job, it was reasonable for the respondent to have relied on the independent medical examiner rather than on the recommendations of Dr. Stoeckeler. She states that Dr. Fielden saw her only once, performed no injection therapy, saw no x-rays or films, and did not consult with her treating doctor. The commission has considered these arguments, but finds them unpersuasive.

Dr. Stoeckeler's original diagnosis was that the complainant suffered from lumbar strain, but that there was no disc injury. Nothing about this diagnosis suggests that the complainant's condition was anything other than temporary. After gradually decreasing the complainant's work restrictions, Dr. Stoeckeler agreed to lift them entirely, and for the next year the complainant performed her work without any restrictions whatsoever. (1)   Although Dr. Stoeckeler subsequently reinstated the complainant's restrictions, this was done at her own request, without any further medical examination. The complainant never demonstrated to the respondent that she was having difficulty performing the job, nor did she present it with any documentation justifying the reimposition of restrictions. Given all of these circumstances, and considering that Dr. Fielden examined the complainant in a manner that was not shown to be incomplete or incompetent, and concluded that there was no physical abnormality nor any indication that her activities should be restricted, the commission is in agreement with the administrative law judge that the complainant failed to demonstrate she was an individual with a disability, within the meaning of the Wisconsin Fair Employment Act.

In her petition the complainant also argues that the administrative law judge erroneously found that, because the respondent did not believe she was disabled, there could be no publication violation regardless of what was told her, a ruling which the complainant asserts is preposterous. The complainant's argument on this point relies on a fundamental misreading of the administrative law judge's decision. The administrative law judge's comment that the respondent did not believe the complainant had a disability is in reference to the fact that the memo related to the respondent's policy with regard to workers with temporary restrictions, and not to workers with permanent disabilities. The administrative law judge noted that the respondent has a separate policy mandating priority consideration for transfer for employees with disabilities. In light of these factors, the administrative law judge found the memo not to discriminate on any basis enumerated in the statute. Notwithstanding the complainant's suggestion to the contrary, there is nothing in the administrative law judge's decision to imply that, if an employer believes an individual is not disabled, it can print or circulate any type of statement it wishes with impunity.

The commission further notes that the document in question was an internal memo to the respondent's legal advisors, and, as such, cannot be considered a "publication" or an "advertisement" within the meaning of Wis. Stat. § 111.322(2).  While it might be considered a "statement" within the broadest sense of that term, for purposes of the statute it was neither printed nor circulated. The "print" provision of the statute has been interpreted by the Court of Appeals to mean "to publish in print," while the term "circulate" contemplates a wide degree of distribution. See, Guthrie v. UW (Wis. Personnel Comm., August 28, 2000), citing, Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991);  Williams v. DOC (Wis. Personnel Comm., November 3, 1999). Adhering to that interpretation, it seems clear that an internal memo addressed to the Wal-Mart Legal Team is not considered to be printed or circulated. Consequently, the memo in question does not fall within the purview of Wis. Stat. § 111.322(2), regardless of the nature of the representations contained therein.

Attorney Carol S. Dittmar
Attorney William J. Holloway

Appealed to Circuit Court. Afirmed April 3, 2002.

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(1)( Back ) Although the complainant disputes this, insisting that her co-workers assisted her with lifting, none of the co-workers in question appeared at the hearing and the complainant's supervisors indicated they were unaware the complainant was receiving help. While in her petition the complainant argues that the assistance of her co-workers could have presumably escaped the observation of her supervisors, the commission believes that the complainant's supervisors would have been aware that she was receiving help if indeed this were the case. The commission also rejects the complainant's argument that her own testimony established she received such assistance. The complainant's testimony on this point is self-serving and, lacking any independent corroboration, the commission finds it unconvincing.


uploaded 2001/12/06