ESTATE OF LEON P SZLESZINSKI, Complainant

TRANSHIELD LEASING COMPANY, Respondent A

MIDWEST COAST TRANSPORT, Respondent B

TRANSHIELD LEASING COMPANY, Respondent C

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 makes the following:

1. Complainant was diagnosed with Wilson's Disease in 1981, when he was 22 years old. Wilson's disease, or hepatolenticular degeneration, is a disease marked by an increased output of copper in the urine, deposits of copper in the tissues, cirrhosis of the liver, pigmentation of the cornea, and degenerative changes in the central nervous system. Complainant's medical records state that, in July of 1980, he reported to his physician that he had some tremors in his hands, particularly after working in the woods. Complainant's medical records state that, in August of 1981, he was observed to have some ataxia (lack or loss of muscular coordination resulting in irregularity of muscular movements), and posturing of his hands; to have experienced a significant drop in test results over the last two years compatible with decreased cerebral function; and was prescribed the medication Penicillamine to relieve certain of the symptoms of Wilson's disease. Complainant's medical records state, in May of 1986, that he was moderately mentally retarded secondary to Wilson's disease, and that he was on several medications, including some for treatment of psychiatric disorders. Complainant's medical records state that, in 1989, complainant's mother reported that he suffered from "fits" due to Wilson's disease. Complainant's medical records state that, in August of 1992, he complained that he could drive only 100 miles before becoming fatigued, he suffered from whole body weakness and was weaker than he was five years before, and he was having difficulty sleeping.

2. Complainant was employed as a truck driver for 15 years prior to his death from complications of Wilson's Disease in March of 1999. He had only one accident during this period of time which was concluded to be the other driver's fault.

3. On June 21, 1995, complainant was hired as an over-the-road truck driver by Transhield Leasing Company (TLC) and Midwest Coast Transfer (MCT). TLC is a trucking company that leases tractors and drivers engaged in interstate travel exclusively to MCT. TLC made the decision to hire complainant and paid his wages. MCT determined whether drivers met relevant qualifications, dispatched drivers, and enforced driver work rules. Drivers employed by TLC/MCT were required to be medically certified pursuant to federal Motor Carrier Safety regulations. Transhield Trucking was not a separate employing entity during the relevant time period.

4. On June 20, 1995, L. D. Carlson, M.D., examined complainant. Based on this examination, complainant was medically certified to drive in interstate commerce. MCT was aware at that time that complainant suffered from Wilson's Disease.

5. In March of 1996, MCT received reports of erratic driving by complainant from two different sources. In both reports, complainant was alleged to have been weaving in traffic, and in one to have forced another vehicle to the shoulder of the highway. Complainant denied that this erratic driving occurred.

6. As a result of these reports and considering complainant's diagnosis of Wilson's Disease, Jeffrey Gillespie, MCT's Vice President of Safety, required that complainant be medically evaluated. On March 13, 1996, complainant was examined by Dr. Carlson. The records of this visit state that complainant told Dr. Carlson that the weaving was caused by brake problems with his vehicle. Dr. Carlson recommended the complainant be examined by a neurologist.

7. MCT arranged, upon the recommendation of Occupational Health Associates of South Dakota (OHASD), the entity upon which it typically relied for medical certification of its drivers, for complainant to be examined by Ali Choucair, M.D., a neuro-oncologist. Dr. Choucair's report states as follows, as relevant here:

. . .He does have definite dysarthria [imperfect or impaired pronunciation], and he has very mild masking of the face. He has very mild stooping of his gait. He does have diminished arm swing bilaterally. He has mild difficulty with tandem. He has Kayser-Fleischer rings on his funduscopic [eye] exam. He does have mild difficulty with finger-to-nose-to-nose. He also had very mild difficulty with heel-to-shin; again, this is really mild. He has symmetrical hyperreflexia, but the toes are bilaterally downgoing. He has no motor deficit on strength and a normal sensory exam in all detailed modalities. .

IMPRESSION:
1. Established diagnosis of Wilson's disease with very mild demonstrated deficit on the neurological examination.

PLAN & DISCUSSION: As I told Leon, as a physician, I take the complaints from his safety manager as very serious. I told him it is my responsibility to protect him as well as to protect others. I told him the report that he was seen swaying on the highway is of serious concern to me, especially when he is driving an almost 70 or 80 ton truck. I told him, by law, people who drive these vehicles need to demonstrate full ability of control. His deficit I do not believe is such that will prevent him from operating a motor vehicle. However, I am seeing him only on one instance. I have not had the opportunity to observe him. I told him, however, it is my strong conviction that he should undergo an MRI scan of the head and that he should have formal detailed psychometrics done. If he does well on these two, my next step would be to recommend that he have a road test by the DOT authorities. This was explained to him in detail.

8. The relevant medical records state that Dr. Choucair, as a part of his examination, asked complainant for his medical history, and that complainant advised Dr. Choucair that he had no history of weakness, ataxia, involuntary muscle movements, problems with his gait, problems with his speech, problems with thinking, or depression.

9. Once it received Dr. Choucair's report, MCT forwarded complainant's medical records to OHASD. These records were reviewed by Dana Windhorst, M.D., Medical Director. Dr. Windhorst issued a letter upon the completion of his review which states as follows, as relevant here:

I have reviewed Mr. Szleszinski's records, specifically the note from Ali Choucair, M.D., Neurologist.

The neurological examination did indicate some mild neurological deficits, specifically in the area of coordination, and possibly some extrapyramidal [relating to involuntary or incomplete muscular movements] problems as well.

In addition, there is the history, apparently twice, of this driver being observed to swerve on the highway suggesting some problem with functional coordination during his driving.

Wilson's disease is a progressive neurological disease, and this is of grave concern, given the responsibilities of driving large commercial vehicles on the highways. The Department of Transportation Conference on Neurological Disorders and Commercial Drivers, dated July 1988, recommends, without exception, disqualification for individuals with confirmed diagnosis of Wilson's disease. Putting all this together, I cannot make a recommendation for this individual to be medically certified for DOT Licensure. It is also my opinion that, regardless of the results of psychometric testing and MRI, that I would not change this recommendation.

10. The conference to which Dr. Windhorst referred in his letter was convened in April of 1988 by the Office of Motor Carriers (OMC), Federal Highway Administration, U.S. Department of Transportation, to review the current medical standards for commercial motor vehicle drivers with neurological disorders. There were 28 participants, including physicians and scientists experienced in the care of people with neurological disorders, and representatives from the motor carrier industry. Four major categories of neurological conditions were reviewed by four task forces, discussed at a plenary session, and analyzed by the conference steering committee. The conference specifically concluded that, unlike certain other progressive neurological disorders for which referral to a neurologist for a detailed and qualified evaluation of an applicant's neurological status was recommended, the progressive neurological conditions of dementia, motor neuron disease, malignant tumors of the central nervous system, Huntington's disease, and Wilson's disease should "unequivocally indicate disqualification."

11. On March 26, 1996, MCT, based on OHASD's refusal to medically certify complainant, notified him by phone and letter that it had terminated his qualification to drive equipment leased to MCT.

12. Complainant's medical records state that, on March 26, 1996, complainant called Dr. Choucair's office to cancel his follow-up appointment, indicating that he would be seeing instead a neurologist in Madison, that he made the change because TLC supervisor Lou Rogers did not know about the Madison neurologist, and that Rogers had been making trouble for him because of past personal problems with complainant's mother.

13. In April of 1996, neurologist Stanley Skinner, M.D., examined the complainant at his request and concluded that the diagnosis of Wilson's disease should have no influence on complainant's occupation as a truck driver. Also in April of 1996, Gary A. Johnson, M.D., reviewed an MRI of complainant's head at his request and concluded it was normal.

14. After his termination from MCT/TLC, complainant continued to work as a truck driver until his death in 1999.

15. Complainant believed that the only reason MCT wanted to get rid of him in 1996 was his refusal to "run over 70 hours on his log book."

1. Transhield Trucking is not an employer within the meaning of the Wisconsin Fair Employment Act, or a proper respondent party in this matter.

2. TLC and MCT are employers within the meaning of the WFEA and proper respondent parties in this matter.

3. Complainant sustained his burden to prove that he was a disabled individual within the meaning of the WFEA.

4. Complainant failed to sustain his burden to prove that he was terminated by respondents because of his disability.

Dated and mailed February 24, 2004
szlesle . rrr : 115 : 9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The complainant's initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

An "impairment" for purposes of the WFEA is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985); Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC Aug. 25, 2000).

Even if complainant had failed to offer sufficient medical evidence to establish that he suffered from an actual impairment, respondents' effective termination of his employment based on his Wilson's Disease diagnosis supports a conclusion that respondents perceived complainant to be disabled, i.e., perceived that Wilson's Disease limited his capacity to work as an over-the-road truck driver.

Complainant next has the burden to prove that he was terminated or treated less favorably in regard to the terms and conditions of his employment because he was disabled. Target Stores, supra.; Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

Since respondents effectively terminated complainant based solely on his failure to be medically certified by OHASD, it is concluded that he was terminated because respondents perceived him to be disabled.

The respondents next have the burden of proving a defense under Wis. Stat. § 111.34. Target Stores, supra. Pursuant to § 111.34(2)(a), it is not a violation of the WFEA to take an employment action based on an individual's disability "if the disability is reasonably related to the individual's ability to adequately undertake the job- related responsibilities of that individual's employment.."

Wisconsin Statutes § 111.34(2)(b) and (c), state as follows:

(b) In evaluating whether an individual with a disability can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity, the present and future safety of the individual, of the individual's coworkers and, if applicable, of the general public may be considered. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.

(c) If the employment, membership or licensure involves a special duty of care for the safety of the general public, including but not limited to employment with a common carrier, this special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job, membership or licensed activity. However, this evaluation shall be made on an individual case-by-case basis and may not be made by a general rule which prohibits the employment or licensure of individuals with disabilities in general or a particular class of individuals with disabilities.

Complainant's primary theory here is that, since Dr. Windhorst's opinion that complainant did not qualify to be medically certified to drive a truck in interstate commerce was based exclusively on the 1988 OMC conference report, respondents' reliance on Dr. Windhorst's medical opinion violated the requirement of 111.34(2)(b) and (c) that evaluations be made on a case-by-case basis.

The commission concludes, however, that the record supports a conclusion that the evaluation at issue here was conducted on an individualized, not a generalized, basis.

First, it was reasonable for MCT, knowing that complainant suffered from a progressive neurological disorder, to refer him for evaluation given its receipt of two unsolicited recent reports from individual citizens that the truck complainant was driving was observed weaving in traffic and endangering the safety of other drivers. Those engaged in interstate trucking are held, as they should be, to stringent safety standards, and MCT was obligated as a result to investigate any potential basis for complainant's apparently erratic driving. Boynton Cab Co. v. ILHR Department, 96 Wis. 2d 396, 291 N.W.2d 850 (1980)(common carrier owes a duty to exercise the highest degree of care reasonably to be expected from human vigilance and foresight).

In addition, an individual assessment of complainant's medical condition was conducted both by Dr. Choucair and by Dr. Windhorst. Although complainant contends that Dr. Choucair concluded that complainant's "condition did not prevent him from safely operating a motor vehicle," Dr. Choucair's written assessment, when considered in its entirety, is actually much less emphatic and much more guarded than that, and Dr. Choucair actually recommends further testing and observation. It should also be noted in this regard that Dr. Choucair completed his assessment without the benefit of complainant's complete medical history, i.e., not only did he characterize the written medical records provided to him as "scanty," but complainant proved to be a poor historian when orally relating his medical history to Dr. Choucair.

Moreover, contrary to complainant's contention here, Dr. Windhorst did not rely exclusively on the 1988 OMC conference report in his assessment of complainant's medical qualification to drive. He specifically states in his letter to MCT that he reviewed Dr. Choucair's report, as well as the conference report, in reaching his conclusion.

In addition, the conclusion in the 1988 conference report upon which Dr. Windhorst relied is not one based on broad generalizations or unsubstantiated stereotypes. It is not a blanket disqualification of those with neurological disorders or even those with progressive neurological disorders. Instead, it is a narrowly tailored conclusion representing the collective opinion of physicians and scientists with expertise in the field of neurology and relates specifically to the interstate commerce occupational area at issue here. Reliance on the conference report could be considered to be akin to consulting a learned treatise or a noted specialist to assist in rendering a medical opinion. The conclusion in the conference report is not a perception of disability based on "myth, fear, or stereotype," upon which an employer may not rely to escape liability for discrimination. EEOC v. Texas Bus Lines, 923 F.Supp. 965 (S.D. Tex. 1996) (1).

It should also be noted that MCT disqualified complainant because the medical director of the entity upon which it routinely relied for medically certifying its drivers refused to certify complainant. Complainant argues that MCT cannot escape liability under the WFEA through this reliance, particularly since Dr. Windhorst violated § 111.34(2)(b) and (c) by failing to make an individualized assessment of complainant's medical fitness. As discussed above, the commission does not conclude that Dr. Windhorst failed to make such an individualized assessment. Moreover, there is a body of law which supports the conclusion that an employer is entitled to rely on the medical opinion of a medical professional when such reliance is reasonable and in good faith. Bay v. Cassens Transport Co., 212 F.3d 969 (7th Cir. 2000) (employer not required to second-guess medical determination, and reliance on determination valid defense to discrimination claim); Campbell v. Federal Express Corp., 918 F.Supp. 912 (D.Md. 1996) (employer is entitled to rely on medical determinations made by its medical professionals). Exceptions include reliance on a physician's disqualification decision where the subject medical condition is not referenced even in general terms in DOT regulations, (Texas Bus Lines, supra,) (reliance on medical disqualification based on obesity not reasonable given that DOT regulations do not establish weight restrictions or list impaired mobility or obesity as potentially disqualifying conditions); and where an employer is working in collusion with a medical professional to deny certification, (Bay, supra,) (although a conflict of interest could place medical determination in question, mere ongoing relationship between a company and a health organization does not present such a conflict). Here, unlike the circumstances under consideration in Texas Bus Lines, the relevant federal DOT regulations, 49 C.F.R. § 391.41, reference both neuromuscular conditions and nervous diseases; and the record does not show that the relationship between MCT and OHASD, an independent entity with whom MCT had a contractual relationship, presented a conflict of interest. There is also authority for reliance on advisory and non-binding opinions in regard to common carrier medical certification (Tate v. Farmland Industries, Inc., 268 F.3d 989 (10th Cir. 2001) (no disability discrimination found where employer's physician relied on advisory, non-binding supplement to DOT medical certification regulations).

In addition, it is important to note that the complainant was not required to helplessly accept Dr. Windhorst's refusal to medically certify him. Federal regulations provide an appeal mechanism through which disputed DOT medical certifications can be reviewed. In fact, the commission, in Hermann v. ORT Trucking Co., ERD Case No. 9301203 (LIRC Dec. 13, 1994), ruled as follows:

. . . in view of the fact that the complainant's qualification to drive is governed by the Federal Motor Carrier Safety Regulations, and such regulations provide for resolution of disputes over conflicting medical evaluations,.the respondent should not be held to have acted in violation of the Wisconsin Fair Employment Act unless and until there has been a determination under the federal safety regulations that the complainant is qualified to drive, and the respondent refuses to permit him to drive.

Complainant, however, failed to utilize this federal appeal mechanism. Complainant attempts to distinguish Hermann from the present case by arguing that the complainant in Hermann was applying for initial certification in contrast with complainant Szleszinski who had been previously medically certified. This distinction, however, is not persuasive, particularly given the fact that MCT had reasonable grounds due to changed circumstances for initiating a review of complainant's medical fitness, and complainant has failed to prove that the federal appeal mechanism would not have been available to him.

Finally, it should be noted that, in his deposition, (2)  the complainant does not attribute his termination to his medical condition, but instead to MCT's displeasure with his refusal to "log more than 70 hours." Although such a motive would be a presumably illegal one, it would not constitute a discriminatory one under the WFEA.

Much effort was expended by the parties in determining whether TLC or MCT was the employer here. However, given that TLC hired the complainant and issued his paychecks, and MCT assigned and supervised his driving and assessed his fitness to drive, both TLC and MCT are proper respondent parties in this matter. Transhield Trucking, however, was not a separate employing entity during the time period relevant here, and is not, therefore, a proper respondent party.

Due to the commission's conclusion that complainant failed to sustain his burden to prove the alleged discrimination, the commission need not address the issue of attorneys' fees.

NOTE: The commission did not consult with the administrative law judge as to witness credibility. The facts were essentially undisputed, and the commission's reversal was not based upon a different view as to the credibility of witnesses but instead upon a different interpretation of the relevant law.

cc: 
Attorney Matthew A. Biegert
Attorney Janice A. Rhodes
Attorney James B. Sherman

Appealed to Circuit Court. Affirmed October 19, 2004. Appealed to the Court of Appeals.  Reversed September 27, 2005, sub nom. Szleszinski v. LIRC, Midwest Coast & Transhield, 2005 WI App 229, 287 Wis. 2d 775, 706 N.W.2d 345;  Court of Appeals decisions aff'd, Szleszinski v. LIRC, Midwest Coast & Transhield, 2007 WI 106, 304 Wis. 2d 258, __ N.W. 2d __.

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(1)( Back ) The commission has relied on federal equal rights decisions for guidance in interpretation and application of the WFEA. Such reliance is particularly appropriate here in view of the interplay in this case between federal motor carrier requirements and anti-discrimination law.

(2)( Back ) Due to complainant's death between the date of his deposition and the date of hearing, his deposition testimony, which was received into the hearing record by stipulation of the parties, was considered competent evidence here.

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