THOMAS RICK, Complainant

FORE WAY EXPRESS, INC., Respondent

An examiner of the Department of Industry, Labor and Human Relations issued an ORDER OF DISMISSAL in the above-captioned matter on December 6, 1984. Complainant filed a timely petition for review by the Commission and both parties subsequently submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

That the attached decision of the examiner is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed July 25, 1985

/s/ David A. Pearson, Chairman

/s/ Hugh C. Henderson, Commissioner

/s/ Carl W. Thompson, Commissioner

In a complaint filed with the Equal Rights Division on February 29, 1984, the Complainant alleged that he was discriminated against by the Respondent on the basis of handicap in regard to conditions of employment. Specifically, the Complainant, a truck driver, alleged that he could not drive the leased tractor provided him by the employer because it was not large enough to accommodate his size, 6'5" and 240 lbs. Complainant asserted that the Respondent had other equipment available which he was able to drive and has driven in the past, but the Respondent unreasonably refused to accommodate him.

An initial determination of no probable cause was issued on May 10, 1984. The matter was subsequently noticed for hearing following an unsuccessful attempt at conciliation. A hearing was scheduled for November 27, 1984.

Prior to the hearing the examiner advised the parties that no hearing would be held and that an order of dismissal would be entered because the Complainant was not handicapped within the meaning of the Act based on the Wisconsin Supreme Court's decision in American Motors Corporation v. LIRC, 119 Wis. 2d 706, 350 N.W. 120 (June 1984). (In AMC, the employer rejected a woman (Basile) 4'10" tall and weighing 105 lbs. for employment as an unskilled hourly production worker because it believed she was too small to perform the jobs. The Wisconsin Supreme Court held that Basile's stature did not constitute a handicap because she did not have a disability or impairment; that her height was not such a substantial deviation from the norm as to make achievement unusually difficult or try limit the capacity to work. Further, that for there to be a discrimination on the basis of perceived handicap, there must be an actual impairment, which need not, in fact, be a handicap to job performance.) The examiner subsequently issued a written order of dismissal in the matter on December 6, 1984.

In his petition of the examiner's decision the Complainant asserts that prior to hearing and in accordance with the Equal Rights Division's rules of procedure, he submitted exhibits to be introduced at the hearing among which were medical reports from D. B. Anderson, M.D. and J. R. Allen, M.D., which conclude that Complainant has peripheral lower extremity problems which cause impairment of function; that these problems include numbness in the anterior aspects of both thighs progressing down to the feet. Complainant asserts that he believes that the condition described in the medical reports constitutes a handicap within the meaning of the Act and that, at hearing, Complainant would establish that the Respondent unlawfully discriminated against him. Further, Complainant asserts that the dismissal of his complaint without hearing, without Respondent having filed a motion and without affording Complainant the opportunity to respond violates the Act and Complainant's right to due process of law.

Later, in his brief to the Commission Complainant argued that had the examiner permitted testimony, he would have been able to present facts which would have distinguished this case from AMC; that the evidence would have shown that Complainant has a medical impairment which constitutes a handicap within the meaning of the Act; that the lower peripheral problems described in the medical reports would have been shown to include chondromalacia of the patella. (Chondromalacia means a softening of a cartilage; patella refers to the kneecap.)

Complainant further argued that in this case, the examiner, on his own motion, dismissed Complainant's complaint prior to hearing, without formal notice, without an opportunity for the parties to be heard, without an opportunity for the parties to present evidence, arguments or briefs, all in violation of Complainant's right to due process of law under the state and federal constitutions and under Wisconsin Statutes. In support of this position Complainant quoted the following language from Kropiwka v. DILHR, 87 Wis. 2d 709 (1978);

"Proceedings under s. 111.31-111.37, Stats., 1973, the Wisconsin Fair Employment Act, are subject to the full and fair hearing due process provisions of chapter 227, Stats. Mr. Kropiwka was entitled to a full and fair hearing under s. 227.07, Stats., 1973, which provides (in pertinent part):

. . . prior to the final disposition of any contested case, all parties shall be afforded opportunity for full, fair, public hearing after reasonable notice . . ."

The Commission disagrees with Complainant's assertion that the conditions described in the medical reports constitute a handicap within the meaning of the Act. The medical reports of Drs. Allen and Anderson do not establish that Complainant has a handicap. Those reports simply indicate that when Complainant is in a tractor where he cannot fully extend his legs to the gas and brake pedals because of his height, it causes lower extremity problems, i.e., numbness.

Moreover, those reports specifically state as follows: "Examination of the legs is normal. The pulses are excellent. Reflexes are normal." Consequently, the "peripheral lower extremity problems" are nothing more than a manifestation of the symptoms caused by his height when operating a tractor too small for his size.

As for Complainant's reference to chondromalacia of the patella, not only is this asserted diagnosis contrary to the diagnosis of Complainant's initial doctors, it is a medical diagnosis that would not have been entitled admission into evidence at the hearing. Ind. 88.14 of the Wisconsin Administrative Code requires that the parties file and exchange copies of exhibits which they intend to utilize at the hearing at least 10 days before the hearing. This "medical diagnosis" was not obtained by Complainant until on or about January 11, 1985, which was 45 days after the scheduled hearing date.

The Complainant was not denied due process of law. The Kropiwka decision is not applicable here. The question before the court in Kropiwka was whether Kropiwka's lack of fluency in the English language prevented him from being afforded a full and fair hearing of his employment discrimination claim and resulted in a denial of due process. There was no question that Kropiwka, who suffered from a back problem, was handicapped within the meaning of the Act. Unlike Kropiwka, the Complainant has not alleged a handicap that is recognizable under the Wisconsin Fair Employment Act. The Complainant has failed to state a claim upon which relief can be granted. Because Complainant failed to state a claim upon which relief can be granted, the examiner was within his authority to dismiss the complaint prior to the hearing.

". . . The department has the inherent right to dismiss a complaint made under the Wisconsin Fair Employment Act at any stage of the proceedings before it, either at the request of a party, or upon the department's own motion, for failure to state a claim upon which relief may be granted. This is because there is no sense in conducting a hearing on a complaint where even if the facts alleged are proven, they do not amount to a violation of law upon which relief can be predicated." Lambert v. DILHR, Dane Co. Cir. Ct., Case #x154-212 (July 25, 1977).

Finally, Respondent asserts that Complainant's appeal is frivolous, unreasonable and without foundation and that Respondent should be entitled to all costs and attorney's fees for defending the appeal. In support of this claim Respondent states that "the Wisconsin Supreme Court rendered its decision regarding handicap as it relates to 'stature' on June 30, 1984. Despite the Complainant's notification of said decision, he pursued his complaint." Respondent argues that under the rationale used by the Supreme Court in Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W. 2d 482 (1984), a respondent should be entitled to recover attorney's fees in cases such as this one.

The Commission has previously denied such a request. In Dantzler v. Briggs and Stratton Corporation (Commission decision decided February 19, 1985), the Commission stated:

"In Watkins, the Court concluded that DILHR's authority to award reasonable attorney's fees to a prevailing Complainant could be fairly implied when the language of section 111.36(3)(b) [now 111.39(4)(c)] is construed in light of the purposes of the Act and the legislative mandate to liberally construe the Act. Specifically, the Court noted that the two purposes of the Act were to make victim of discrimination whole and to discourage discriminatory employment practices; that under 111.36(3)(b) once the department found that a respondent had engaged in discrimination the department was specifically authorized to order such action by the respondent as will effectuate the purpose of the Act. However, in contrast, DILHR's authority to award attorney's fees to a prevailing employer cannot be fairly implied. In addition to a lack of support based on the purposes of the Act, section 111.39(4)(d) simply provides that if the examiner finds that the respondent has not engaged in discrimination as alleged in the complaint, the department shall serve a certified copy of the examiner's findings on the complainant together with an order dismissing the complaint." (Emphasis in original)

Accordingly, the Commission hereby denies Respondent's request for costs and attorney's fees.

125

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/04/29