WALTER A SEIFELDT, Complainant

OSHKOSH OFFICE SYSTEMS, 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 18, 2003
seifewa . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review the complainant argues that the evidence established he was able to utilize the forklifts to unload and move items in the shipping department and could arrive at 5:00 a.m. to perform his duties. The complainant points out that the respondent never told him he was not performing his job in a satisfactory manner and that his doctor indicated that, so long as the complainant stayed within his restrictions, he could continue working. The commission does not find these arguments persuasive. The complainant's job duties included moving freight in the warehouse, making deliveries, checking in freight, and cleaning the warehouse. The evidence demonstrated that, at the time his employment was terminated, the complainant was unable to perform the vast majority of his job duties and had to rely on other workers for help. Although it may be true that the complainant was able to unload and move items using a forklift, the record indicates that he only did so a few times a day. There is no reason to believe that additional use of the forklift would have permitted the complainant to perform more of his job duties, nor is there any reason to believe that reporting to work early enabled him to complete the job. The respondent's witnesses credibly testified that the complainant could not perform the job without substantial assistance from others, and it is clear from the record that continuing to provide the complainant with that level of assistance was not a reasonable accommodation which the respondent could provide without hardship. The fact that the respondent did not directly communicate its dissatisfaction with the complainant's job performance prior to terminating the employment relationship may be evidence of poor management practices, but it does not suggest that the respondent failed in its burden of providing a reasonable accommodation, and the complainant has not explained what reasonable accommodations were available which the respondent was unwilling to provide. The complainant was unable to drive, lift items weighing more than 20 pounds, or shovel snow. By the end of his employment even walking around the warehouse or carrying very light items was difficult for the complainant, and he was repeatedly observed to stop and rest against a table or wall. It is, unfortunately, clear that, at the time his employment ended, the complainant was simply unable to perform the job. The commission can envision no accommodation which would have altered this situation.

In his petition the complainant also argues that he should have been granted an adjournment and that the administrative law judge's ruling regarding his witnesses was improper. The commission disagrees. Although the commission can appreciate the difficult situation the complainant faced when his original attorney withdrew, the complainant did not notify the administrative law judge that he was having difficulty securing new counsel and did not request a postponement until July 2, eight days before the scheduled hearing, at which point the respondent had already submitted its witness and exhibit list and was prepared to go forward. The administrative law judge's refusal to grant a postponement at that juncture was not inappropriate. Regarding the complainant's witness list, the administrative law judge had the discretion to preclude testimony of those witnesses who were not disclosed until two days before the hearing. The respondent argued that it would have been prejudiced had the complainant been permitted to present such testimony, and the administrative law judge evidently agreed. The commission also notes that the complainant has not explained what matters his witnesses would have testified to, had they been permitted to testify, and the commission sees no reason to believe that further witness testimony would have advanced the complainant's case. Because the commission agrees with the administrative law judge that the complainant failed to demonstrate he was discriminated against in the matter alleged, the dismissal of his complaint is affirmed.

cc: 
Attorney Matthew L. Goldin
Attorney David J. Praska

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uploaded 2003/12/22