FREDERICK C.  REICH, Complainant


ERD Case No.  8951618

An Administrative Law Judge issued a decision on December 5, 1991 concluding that the complaint in this matter was not filed within the time required by section 111. 39, Wis.  Stats. , and dismissing it on that basis.  The Complainant filed a timely petition for Commission review. 

Based on a review of the record, the Commission makes the following:


1.  Frederick C.  Reich, the Complainant in this matter, has worked for Ladish Company for 26 years.  Mr.  Reich has held several different positions with the company.  Between 1973 and 1982, he was employed as a lubricator. 

2.  In 1988, Mr.  Reich was the successful bidder on a lubricator position.  Frank Kontaro, the head of the Maintenance Department, informed Greg Albright, the Manager of Safety and Plant Security, that he questioned Mr. Reich's ability to perform the duties of the lubricator position because Mr.  Reich had experienced physical problems while working on cranes in the two preceding years.  Mr. Albright asked Dr. William P.  Potes, the physician for Ladish Company, to review Mr. Reich's medical records.  Mr. Albright explained the duties of the lubricator position to Dr. Potes.  He informed Dr. Potes that the position required lubricating various pieces of equipment, including hammers, presses and cranes.  Mr. Albright estimated that 25 percent of the lubricator's time would be spent working at significant heights of up to 38 feet above the ground. 

3.  Dr. Potes reviewed the documents in Mr. Reich's medical file at Ladish Company.  Those documents indicated that Mr. Reich has bronchial asthma.  The medical records also indicated that during the two preceding years, Mr. Reich had, on four separate occasions, experienced the sudden onset of weakness, dizziness and respiratory difficulties while in the workplace.  Dr. Potes concluded that Mr. Reich should be disqualified from working as a lubricator. 

4.  Dr. Potes gave Mr. Albright his recommendation that Mr. Reich be disqualified from the lubricator position on March 1, 1988.  Mr.  Reich was informed on that date that he was medically disqualified from the lubricator job. 

5.  On July 3, 1989 Ladish Company posted notice of an opening in the lubricator position, and on July 13, 1989 Reich bid on the position. 

6.  On July 18, 1989 Ladish Company closed the bidding on the lubricator position with the indication that there was no "qualified" bid. 

7.  There is reason to believe that Ladish Company refused to consider Reich's July 13, 1989 bid on the lubricator position that was then open, because it perceived him to have some medical condition which rendered him not medically qualified for the position. 

Based on the FINDINGS OF FACT made above, the Commission makes the following


1.  The Respondent, Ladish Company, is an employer within the meaning of the Wisconsin Fair Employment Act. 

2.  The complaint in this matter was filed within 300 days of the alleged violation, a refusal to promote on July 18, 1989, as required by sec. 111. 39(1), Stats. 

3.  There is probable cause to believe that Respondent  discriminated against Complainant because of handicap, in violation of the Wisconsin Fair Employment Act, when it refused to consider his bid for the position of lubricator in July 1989. 

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission now makes the following:


This matter is remanded to the Equal Rights Division for efforts at conciliation pursuant to sec.  111. 39(4)(b), Stats. 

Dated and mailed March 30, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


Timeliness -- The Administrative Law Judge dismissed the complaint in this matter on the grounds that it was filed more than 300 days after March 1, 1988, when Reich was told that he was "medically disqualified" from the position of lubricator.  In his petition for commission review, Reich objected that he had in fact bid on and been rejected for another lubricator opening in July 1989, only days before he filed his complaint.  Reviewing the file, the Commission determined that there was not a shred of evidence in the record made at hearing which supported this claim of a July 1989 refusal.  For reasons which are anything but clear, Complainant's attorney failed utterly to put in any evidence at hearing of anything post-dating March 1988.  Thus, if the record made at hearing were all that it looked at, the Commission would affirm, since a decision may not be based on factual claims made in a petition for Commission review which are not supported by the record. 

However, the complaint in this matter specifically alleged a refusal to promote Reich to a lubricator position in July 1989, and Respondent filed a formal Answer to the complaint in which it specifically and expressly admitted those allegations of the complaint.   In these unusual circumstances, the Commission believes that it is appropriate to make findings of fact based on those admitted allegations. 

Based on those findings of fact, the Commission concludes that the complaint was timely.  The opening for a lubricator position in 1989 was a new event, as was Respondent's failure to consider Reich's bid at that point.  The fact that Respondent may have earlier decided that it would never consider Reich for any opening that arose in a lubricator position, does not mean that there is only one act of discrimination.  Whenever there is a refusal to hire or promote into a new vacancy which is motivated by a prohibited consideration, there is a new act of discrimination, even if the motivation was originally arrived at earlier.  Therefore Reich's complaint about being denied a lubricator position in July 1989 was timely. 

Handicap Discrimination -- The record leaves no doubt whatsoever that Respondent's motive for refusing to consider Reich's bid for the lubricator position in July 1989 was that it viewed him as medically disqualified.  Respondent's arguments, that Reich is not handicapped or is now disclaiming handicap, are without merit.  It clearly perceived him as suffering from some medical condition which it  saw as limiting his ability to safely perform the lubricator position.  When an employer acts on the basis of such a perception it does so at its own risk:  it must be prepared to prove that it is right.  The Respondent certainly failed to do so here, where it introduced absolutely no competent medical evidence into the record.  A finding of probable cause is therefore warranted. 

Attorney John S.  Joyce
Attorney Lawrence C.  Hammond

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