ALLAN W KRUEGER, Complainant

NORDBERG INC, 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 conclusion in that decision as its own.

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

Dated and mailed December 27, 2001
kruegal . rsd : 164 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In the petition for commission review the complainant argues that the clinic notified the respondent he had a heart murmur and could not be cleared for employment. The complainant contends that the respondent did not hire him because it perceived he had a disability. The commission has considered the complainant's argument, but does not find it persuasive. Although the clinic informed the respondent that the complainant had a heart murmur, this information would not necessarily warrant a conclusion that the complainant had a disability, and the commission sees no reason to believe that the respondent perceived him as being disabled. The respondent was notified by the clinic that the complainant's medical clearance had been temporarily deferred and that his examination was on hold while the clinic waited for further information. The respondent's production manager, Edmond Delwiche, testified that this information did not cause him to lose interest in hiring the complainant, but that he did not believe he could proceed until he received the results of the physical examination. Based on these facts, the commission sees no reason to conclude that the respondent perceived the complainant as disabled or that it took any adverse employment action against him as a result.

In his petition the complainant also argues that he did follow up with the clinic and did just about everything that could reasonably be expected of him. However, while the complainant submitted information prepared by a nurse practitioner about his electrocardiogram, Dr. Harms had requested and was expecting to receive the actual test results. There appears to have been a misunderstanding regarding what the complainant was to submit to the clinic in order to complete his pre-employment physical examination, and an argument might be made that the clinic should have notified the complainant that the information he had submitted was inadequate. However, whether or not one believes the clinic could have been more diligent, the fact remains that Dr. Harms never decided the complainant had a disability that rendered him unable to work, and communicated no such decision to the respondent.

Finally, the complainant asserts that once an employer gains complete knowledge of an applicant's health history through a pre-employment medical screen, the burden should be placed firmly on the employer's shoulders to either hire the applicant or articulate an explanation as to why the applicant cannot be hired for safety reasons consistent with the Wisconsin Fair Employment Act. However, this argument assumes that the respondent received complete information about the complainant's health history, when the record indicates it did not. In this case, the commission does not find that the respondent had any particular responsibility vis-à-vis the complainant, nor does it find that the respondent discriminated against the complainant in the manner alleged. Accordingly, the dismissal of the complaint is affirmed.

cc: 
Attorney Brian C. Hough
Attorney Dennis W. Rader

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uploaded 2002/01/03