PATRICK CLEARY, Complainant
FEDERAL EXPRESS, 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, except that it makes the following modifications:
The third and fourth paragraphs of the ALJ's decision are deleted to more accurately reflect the record and the commission's decision rationale.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed July 30, 2003
clearpa . rmd : 115 : 9
/s/ David B. Falstad, Chairman
/s/ James T. Flynn, Commissioner
/s/ Robert Glaser, Commissioner
The commission has reviewed the entire hearing transcript and agrees with the
administrative law judge's credibility assessments, except as discussed below. In
particular, the commission agrees with the administrative law judge's conclusion
that complainant's treating physician was not credible "in regard to his testimony
regarding sleep disorders and how they might apply to the complainant." Not only
did the treating physician acknowledge that, as a neurologist, he is not an expert
in sleep disorders, but also that he had not examined or even spoken to the
complainant since May of 1999. As a result, the commission agrees with the
administrative law judge that the record establishes that, in order to avoid
seizures, the complainant needs a consistent schedule but not necessarily a first
The complainant contends that the fact that he started experiencing auras, i.e., small seizures, after he was transferred to the third shift senior mechanic position at the airport, demonstrates that third shift work made him more susceptible to seizures and, as a result, that the respondent failed to reasonably accommodate his disability by denying his request to transfer to the first shift. The administrative law judge did not credit the complainant's evidence that he had in fact experienced such auras, based at least in part on his conclusion that the complainant did not offer testimony to this effect until Dr. Morris had testified that he had no record of these auras. The record shows, however, as complainant has argued, that he did in fact testify that he was experiencing such auras before Dr. Morris testified.
Even considering, however, this consistent testimony by the complainant, the
commission concludes, based primarily on the fact that the complainant did not
seek medical attention or report the onset of auras to his treating physician, that
the complainant did not experience auras while working the third shift at the
airport. Moreover, whether or not the complainant experienced these auras would
only affect the outcome here if the evidence showed that their onset would be
attributable to working third shift hours rather than to some other factor. As
concluded above, however, the medical evidence of record supports the conclusion
that a consistent schedule, not a particular schedule, would be the determining
factor, i.e., that the fact that the complainant may have suffered auras or seizures
during this time period would not, in view of his failure to follow a consistent sleep
schedule, have demonstrated that the third shift work itself was causing the
Respondent also challenges the administrative law judge's attorney's fees/costs award. The commission agrees with the administrative law judge, however, that, since the complainant did not prevail on each issue, there should be a reduction in the attorneys' fees/costs awarded, but that, since the issue on which the complainant prevailed is by far the most significant issue and the one which involved the most substantial and meaningful remedy, this reduction should only be 20%. Since the complainant did not prevail in his petition to the commission, no additional fees/costs should be awarded as a result.
Attorney Mary E. Kennelly
Attorney Sally A. Piefer
Appealed to Circuit Court (separate appeals commenced by both parties). Affirmed in part (liability, attorneys' fees for proceeding before ALJ) and reversed in part (denial of attorneys' fees to complainant for proceedings before LIRC), March 18, 2004.
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