P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

THOMAS W. GRECO, Complainant


ERD Case No. 200200350, EEOC Case No. 26GA200695

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 May 27, 2004
grecoth . rsd : 110 : 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


This case concerns the allegation of Thomas Greco, a tool crib attendant for Snap-On Tools, that he was discriminated against because of disability when he was not allowed to return to work after being off work with back problems.

The ALJ concluded that Greco had not established that he had a disability within the meaning of the WFEA because, at the time of the challenged actions, it had not been established that the complainant had any permanent disability. The ALJ also expressed the opinion that the respondent's written disability leave policy was within the scope of Wis. Stat. § 111.322(2), prohibiting written statements which imply or express discrimination or an intent to discriminate, but she did not find a violation of this section because it had not been investigated or identified as an issue in the notice of hearing. The complainant argues that the ALJ erred in these aspects of her decision, and he also complains of a ruling by the ALJ to quash a subpoena for a witness the complainant planned to present.

Disability discrimination --  The complainant argues that he did establish that he had a permanent condition which would constitute a disability. However, the ALJ's decision resulted from her conclusion that the complainant had not been diagnosed as having a permanent disability at the time of the respondent's challenged action. The commission believes that this reflects a correct analysis of the situation here. This analysis follows from the application of two important principles about disability discrimination which have been repeatedly recognized by the commission.

One is the principle, which has been generally accepted and followed for over 20 years, that a temporary condition is not to be considered a disability under the Wisconsin Fair Employment Act. See, Falk v. WIPC LLC (LIRC, December 18, 2003) ("back impairment due to slow recovery from surgery" not a disability where medical evidence indicated it was a temporary condition); Reinke v. Pick `n Save Mega Food Centers (LIRC, Jan. 28, 2000) (disabilities which are merely temporary do not fall within what is intended to be covered by the Wisconsin Fair Employment Act's prohibition on discrimination because of disability); Wollenberg v. Webex, Inc. (LIRC, Nov. 8, 1991) (temporary eye irritation caused by exposure to chemicals not a handicap); Keith v. AFK (LIRC, August 14, 1981) (affirming ALJ decision that pneumonia, as a temporary illness, not a handicap); Terrell v. Pabst Brewing (LIRC, March 4, 1981)(short-term illness such as bronchitis is not considered a handicap); Lockington v. La Crosse Rubber Mills (LIRC, April 8, 1981) (affirming ALJ decision that temporary tendinitis condition is not a handicap); Pizl v. Waukesha Bearing (LIRC, March 9, 1983) (temporary disability incurred while on the job is not considered a handicap). (1)

The other important principle at play here is the principle that if an employer's decision is based on certain limitations or inabilities of an employee that could be the result of something other than a disability and the employer is not shown to have been aware that they were in fact the result of a disability, the employer cannot be found to have made its decision because of disability.

An example of this can be seen in Horner v. Village Square Apartments (LIRC, May 21, 1991), in which a complainant with very limited reading and writing ability was denied a promotion, allegedly for that reason. By the time of the hearing, he had been diagnosed as suffering from dyslexia, but the evidence showed that while the employer had been aware of his poor reading and writing skills it had assumed that this was because the complainant had never gotten the necessary education. The commission noted that an inability to read or write due to lack of education is not a handicap, and thus concluded that the employer's decision to not promote the employee because of such an understanding about the reason for his limited abilities was not discrimination on the basis of disability.

The commission's decision in Horner was affirmed in Horner v. LIRC (Dane Co. Cir. Ct., October 1, 1992). The court's opinion clearly explained and agreed with the view that an employer does not discriminate because of handicap, even where it takes an action with respect to an employee because of some physical or mental inability of that employee, where the inability is one that can result from conditions or cause which are not disabilities within the meaning of the Act and the employer does not know that the inability results from a condition which is a disability:

In the present case, it is undisputed by the parties that Horner had dyslexia and is currently a "handicapped individual" within the meaning of sec. 111.32(8), Stats. However, it was not until February 5, 1988, some nine months after resigning from Village Square, that Horner was diagnosed as having dyslexia with a learning disability. The question is thus whether or not Horner was perceived by Village Square as having a physical or mental impairment making achievement unusually difficult or limiting the capacity to work at the time of his employment at Village Square. Section 111.32(8)(c), Stats.
. . .
A review of the record reveals no facts from which to conclude that Village Square believed that Horner had a condition which, if it in fact existed, would constitute an actual impairment. A reasonable employer would not reasonably believe that Horner had "a lessening or deterioration or damage to a normal bodily function or bodily condition, or the absence of such bodily function or bodily condition." LaCrosse Police Comm. [v. LIRC], 139 Wis.2d [740] at 761. It is undisputed that Horner himself did not know that he was dyslexic until some nine months after resigning from Village Square. According to the testimony of Broihahn, which the ALJ accepted, this was the first indication Village Square received that Horner's illiteracy was caused by a handicap rather than a lack of education. Although Horner testified that he told Broihahn that he could not read and write at normal levels, that he could not seem to keep up with the other kids in school and that he was placed in special education classes, the ALJ stated that testimony by Broihahn (that Horner explained during his second interview that he could not read beyond a third or fourth grade level due to lack of education), was more credible than Horner's. It is well accepted that this court cannot substitute its judgment for that of the Commission in respect to the credibility of witnesses or the weight to be accorded to the evidence supporting any finding of fact. West Bend Co. v. LIRC, 149 Wis.2d 110, 118, 438 N.W.2d 823 (1989).

Further, in his resignation letter, Horner refers on several occasions to his lack of education as a possible reason for not receiving the promotion to the Maintenance I position. All indications are that, although Village Square was aware that Horner could not read and write at normal levels, it had no reason to suspect that the cause was anything other than lack of education. The unfortunate reality is that some adults are unable to read and write at normal levels. This does not mean that all of these individuals are handicapped within the meaning of 111.32(8), Stats.

In Polesky v. United Brake Parts (LIRC, Aug. 30, 1996), the commission affirmed an ALJ's decision which had found no discrimination because of handicap in a case in which the complainant's handicap (a reading disability) was not diagnosed until after he was fired and neither the employee nor the employer knew or believed during his employment that the deficiencies in his performance were related to a disability. The commission's decision in Polesky was affirmed in Polesky v. LIRC (Washington Co. Cir. Ct., March 31, 1998). In the decision in that case, the court said, in part:

Motivation is a pertinent and necessary inquiry in a discrimination case. . . It is important to note that during his employment, neither Mr. Polesky nor any of the management representatives of the employer were aware of any handicap or disability of Mr. Polesky. It would be, therefore, impossible for them to have the motive, and necessary intent, to terminate him because of an unknown handicap.

See also, Menzner v. LIRC (Family Service Association of Fox River Valley (Calumet Co. Cir. Ct., 02/05/85) (employee not fired because of her handicap when the employer did not know about her alcoholism at the time the decision was made - not handicap discrimination to discharge an employee for deficiencies in work performance where the employer is unaware that the employee has a handicap that is allegedly the cause of those deficiencies).

The former Wisconsin Personnel Commission also recognized this general principle. In Lane v. DOC (Personnel Comm., June 7, 2001), the employee's many claims included some based on an alleged disability of stress. The Personnel Commission said:

The Commission first notes that it is clear from Petitioner's objections to the proposed decision that he equates the respondent's knowledge of his medical condition to mean that respondent knew he was disabled . . . This reasoning is flawed because not every medical condition rises to the level of a disability protected under the FEA.

The Personnel Commission then referred to a statement by the Court of Appeals in its unpublished decision affirming the Washington County Circuit Court's Polesky decision, supra, to the effect that "[s]imply because a person is unable to perform a particular job because of an individual characteristic or mental inaptitude does not automatically mean that the employee must be deemed to be handicapped." Continuing in its analysis, the Personnel Commission noted the limited information which had been provided to the employer about Lane from his physicians, and stated that "the focus is on what the employer knew about Petitioner's medical condition". It reasoned that the information which was available to the employer at that time was insufficient to support a belief that the employee was an individual with a disability. Discussing its conclusion that the respondent did not perceive the complainant as having an impairment which met the definition of handicap in the WFEA, the Personnel Commission noted, "[t]he only related history was his recent leave which respondent reasonably believed was a temporary condition caused by stress associated with the investigation". (emphasis added).

Applying the two principles discussed above to this case leads the commission to conclude that the ALJ was correct in deciding, as she did, that there was no prohibited discrimination here in view of the fact that the complainant had no diagnosed permanent disability at the time of the challenged decisions and actions by the employer. It was not disputed that prior to the time that he reported his inability to work on March 14, 2001, the complainant had never told the employer that he had any sort of back (or other) disability, and the employer had no belief that he did. What the employer learned after that time, was that the complainant had slipped on the ice, fallen, and hurt his back. However, nothing that the employer was given or told gave it any reason to believe that the complainant had sustained any kind of permanent disability as a result of this fall. The March 26, 2001 return to work slip gave no indication of a permanent disability; on the contrary, it would most reasonably have been read as suggesting the opposite, since it stated that the restrictions described on it would be in effect for 21 days and that the complainant was expected to see the doctor again in 3 weeks. At that time, the complainant's physician had not determined that the complainant had any permanent disability as a result of the fall, and the complainant neither felt that he had such a disability nor communicated any such idea to the employer.

Of course, the employer was aware that the complainant had medically-diagnosed physical problems which prevented him from doing his job. However, as noted in Lane, supra, not every medical condition rises to the level of a disability. Temporary disability resulting from an injury is not a "disability" protected by the prohibition against disability discrimination. Here, the employer believed that the complainant's physical problems were temporary consequences of an injury. This was thus a situation like that in the cases discussed above, in which the problems affecting the ability to work were things that could be caused by something other than a "disability" within the meaning of the WFEA, and the employer in fact believed that the problems were caused by something other than a "disability" within the meaning of the WFEA.

For the reasons discussed above, the commission agrees with the ALJ on the disability question. At the time that the events in this case were playing out in March and April 2001, the respondent had no particular reason to think that what it was dealing with was a matter of a permanent disability and permanent restrictions. Nothing in the medical information it was given at the time indicated this, and the complainant never asserted this. The complainant's own physician had not determined at that point that there was any permanent element to the complainant's disability or restrictions. The respondent would have had every reason to think that what it was dealing with was a situation of temporary disability caused by an injury. The situation was not materially different than it would have been if, instead of hurting his back when he slipped on the ice and fell, the complainant had broken his arm. In such a case it would have been clear that what was involved was an injury resulting in a purely temporary disability which would persist during the period it took the effects of the injury to heal.

The commission would also note, that it agrees with the assessment of the ALJ (reflected primarily in Finding of Fact paragraph 17) that in any event, the physical restrictions on the complainant during this period prevented him from doing his job. One of the factual issues that was much in dispute here was the matter of the complainant's ability to move tools in and out of the drawers in the cabinets in the tool crib. These cabinets had multiple drawers extending basically all the way down to the floor. The commission believes that the record persuasively establishes, as the ALJ found, that the complainant could not have done this given the bending restriction he was under. The complainant's theory about being able to do such work by squatting with a straight back did not seem plausible to the ALJ and it does not seem plausible to the commission. Also, apart from the matter of getting things in and out of these basically floor-level drawers, there were other elements of the complainant's job that would have been problematic, given the pushing and pulling restrictions, as the ALJ noted in her findings.

The ALJ was substantially affected in her resolution of the factual questions about what complainant's job involved and what he would have been able to do, by her assessment that his testimony lacked credibility. The commission agrees with her persuasive discussion of this issue, contained in her Memorandum Opinion. While the complainant argues with the conclusions drawn by the ALJ from the evidence about the complainant's use of oxycodone prescribed by Dr. Hennessy, the commission believes that her findings were supported. Dr. Hennessy's March 14, 2001 notes indicate that he "add[ed] oxycodone one to two tablets every four as needed to his regimen. Sixty tablets and no refills are provided". Dr. Hennessy's March 26, 2001 notes indicate, ". . . no work with power tools or machinery because he is still using the oxycodone. He is averaging 3 or 4 a day, and 60 more tablets were provided" (emphasis added). This was plainly inconsistent with the complainant's testimony (T. 176-77) that he only took two tablets of oxycodone and then stopped it. The commission believes that the ALJ was justified in crediting the contemporaneous notes of the physician. The commission also agrees with the ALJ that, based on the other evidence in the record about the nature of the complainant's work, his testimony about how he would have or could have managed to continue doing it notwithstanding the restrictions that had been imposed on him seemed to be stretching things.

Violation of § 111.322(2) - An issue has arisen in this case as to whether a finding of discrimination should or could have been found premised on a violation of the provisions of § 111.322(2) concerning printing or circulating statements which imply or express discrimination or an intent to discriminate. The ALJ concluded that this issue was not before her because it was not investigated or noticed for hearing. She nevertheless expressed her opinion on the issue in her Memorandum Opinion. The complainant argues that the issue was ready for decision and should have resulted in a finding of discrimination. The respondent argues that the ALJ's opinion was incorrect.

The first question that must be decided is whether the issue was appropriately before the ALJ for decision.

The complaint in this matter (which was drafted for the complainant by his attorney) alleged that the respondent "discriminated against [the complainant] on the basis of disability in violation of the Wisconsin Fair Employment Act (WFEA) and the Americans with Disabilities Act by failing to accommodate [his] disability." The complaint also alleged that the respondent "discriminated against [the complainant] in the terms and conditions of [his] employment because of [his] disability, in violation of the WFEA and the ADA, including, but not limited to, failing to reasonably accommodate [his] disability", "failing to engage in the interactive process required by the WFEA and the ADA", and "failing to return me to work despite having appropriate medical clearance". The focus of the investigation, it is fair to say, was on the respondent's actions in refusing to allow the complainant to return to work as of March 29, 2001, or thereafter. The Initial Determination found that there was probable cause to believe that the respondent may have violated the WFEA by discriminating against the complainant in terms and conditions of employment because of disability and refusing to reasonably accommodate a disability. The Notice of Hearing stated that the hearing would be held to determine whether the respondent, as alleged in the complaint, violated the WFEA by discriminating against the complainant in terms or conditions of employment because of a disability and refusing to reasonably accommodate a disability.

Resolving the question of whether the § 111.322(2) issue was appropriately before the ALJ for decision must start with recognition of the structure of § 111.322, the provision of the WFEA which specifically describes the types of conduct prohibited by the Act. There are four distinct categories of prohibited conduct under the Act. § 111.322(1) is the basic prohibition on employment discrimination; § 111.322(2) is the prohibition on printing or circulating statements expressing discrimination; § 111.322(2m) is the prohibition on retaliation for the exercise of rights under a number of other laws; and § 111.322(3) is the prohibition on retaliation for the exercise of rights under the WFEA.

The commission believes that the description of the issues in the allegations of the complaint, in the Initial Determination, and in the Notice of Hearing, are most reasonably understood as relating to the prohibitions contained in § 111.322(1), which states that it is an act of employment discrimination to, inter alia, discriminate against any individual in terms, conditions or privileges of employment because of any basis enumerated in s. 111.321 (and through it to § 111.34(1)(b), which states that it is an act of employment discrimination because of disability to refuse to reasonably accommodate an employee's disability). The description of the issues in the allegations of the complaint, in the Initial Determination, and in the Notice of Hearing, are not reasonably understood as raising an issue under § 111.322(2).

The commission concludes that the types of violations covered by Wis. Stat. § 111.322(2) are sufficiently distinct from those covered by § 111.322(1) that they need to be specifically alleged and noticed as an issue. One consideration leading to this conclusion is that on the same set of facts it would be possible to have different outcomes on those issues. For example, there could be a situation in which an employer clearly had printed and/or circulated some kind of statement expressing an intent to discriminate but had not actually discriminated against the particular complainant in the case; there could also be a situation in which an employer had discriminated against a particular complainant but had not printed or circulated any statement running afoul of § 111.322(2). For this reason, it would make sense to require that these things be specifically and separately alleged as a claimed violation of the Act in a complaint. Another consideration weighing in favor of treating these issues as sufficiently distinct that they should be specifically alleged and noticed as an issue, is the fact that there are some specific elements of proof bearing on the issue which parties might not normally think of addressing if they had not been put on notice that the particular theory was being advanced. For example, an important issue under § 111.322(2) is whether the statement in question has been "printed or circulated", and whether a statement is deemed to have been "printed or circulated" can depend on a number of facts concerning its adoption and promulgation, see, e.g., Valla v. Wal-Mart Distrib. Center (LIRC, Nov. 30, 2001), Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). The commission noted the distinction between the elements of proof under the basic prohibition on employment discrimination in § 111.322(1), and the prohibition on printing or circulating statements expressing discrimination in § 111.322(2), in Schramm v. Farm and Fleet (LIRC, May 14, 2003).

In this case, the complainant was represented by an attorney from the very beginning. Until the ALJ alluded to it in her decision, however, the complainant's attorney had never raised any argument that the respondent had engaged in an independent violation of § 111.322(2) by its written policy on returns to work. Even in the post-hearing brief which the complainant's attorney filed with the ALJ, the argument about the respondent's return to work policy did not cite § 111.322(2) or in any fashion refer to what that statute section covers; instead, it argued that the return to work policy discriminated in terms, conditions and privileges of employment (this being one of the subjects of discrimination prohibited by § 111.322(1)), on a disparate impact theory.

In James v. Associated Schools, Inc. (LIRC, Nov. 27, 1991) and other decisions, the principle was recognized that where an issue is not raised by a complaint, the Equal Rights Division's Investigation Bureau is without authority to issue an Initial Determination making a conclusion on that issue, and the Equal Rights Division is without authority to conduct a hearing on that issue. Findings and orders under the Wisconsin Fair Employment Act may not be broader than that specified in the complaint and notice of hearing. Haynes v. National School Bus Service (LIRC, Jan. 31, 1992). Consistent with these principles, and for the reasons discussed above, the commission believes that the ALJ was correct in concluding that the issue of whether there was a § 111.322(2) violation here was not properly before her for decision.

That having been said, the commission would add that it does not join in the expressed opinion of the ALJ that the respondent's written disability leave policy would appropriately be found to be in violation of the statute were the issue to be properly presented. The commission expressly disclaims any opinion on that question. As noted above, there are elements of proof relevant to § 111.322(2) issues which parties might not normally think of addressing in a § 111.322(1) case. Precisely because of the fact that the § 111.322(2) issue was not adequately raised or litigated, the record is insufficient here to allow an informed opinion on the question.

Quashing of subpoena - On motion of the respondent at the beginning of the hearing, the ALJ quashed a subpoena directed to Jerry Susnik, an employee of respondent. Complainant argues that the ALJ abused her discretion in so doing. The commission disagrees.

When respondent's attorney moved to quash the subpoena, he represented without contradiction by the complainant that the subpoena had been left at Susnik's house at 8:30 P.M. on the evening before the hearing, and that Susnik had only actually received it and become aware of it when he got home from his second-shift work schedule that morning at 1:30 A.M. The complainant had no explanation for why Susnik was served such a short time prior to the hearing, other than to state that the subpoenas had been given to a process server 5 days before and that the complainant had not been aware that Susnik had not been served.

The respondent's counsel stated that he was objecting to the subpoena both on behalf of Susnik directly (he had apparently come to the hearing location and was outside the hearing room, waiting on the disposition of the motion to quash), and on behalf of the respondent. He argued that the respondent was prejudiced by the late service because, even though Susnik's name had been listed on the pre- hearing witness and exhibit disclosure filed by the complainant, they had inferred from the fact that he had not been subpoenaed, as other witnesses had, that the complainant had decided not to call him, and therefore when they were preparing for the case they did not talk to Susnik.

There is nothing in the WFEA itself which specifically addresses the use of subpoenas in connection with hearings. However, the ERD's rules provide, in DWD § 218.15(1):

(1) SUBPOENAS. The department or a party's attorney of record may issue a subpoena to compel the attendance of a witness or the production of documents. . . Subpoenas may be enforced pursuant to s. 885.11, Stats.

The referenced section, Wis. Stat. § 885.11, provides in part:

885.11 Disobedient witness. (1) Damages recoverable. If any person obliged to attend as a witness shall fail to do so without any reasonable excuse, the person shall be liable to the aggrieved party for all damages occasioned by such failure, to be recovered in an action.
. . .
(4) Same. Unexcused failure to attend a court not of record shall be a contempt, and the witness shall be fined all the costs of the witness's apprehension, unless the witness shall show reasonable cause for his or her failure; in which case the party procuring the witness to be apprehended shall pay said costs.

(emphasis added). In addition, hearings before the ERD are contested case proceedings subject to the Administrative Procedure Act, which provides, in Wis. Stat. § 227.46(1):

(1) . . . Subject to the rules of the agency, examiners presiding at hearings may: 
      . . .
     (b) Issue subpoenas authorized by law and enforce subpoenas under s. 885.12.

(emphasis added). The referenced section, Wis. Stat. § 885.12, provides:

885.12 Coercing witnesses before officers and boards. If any person, without reasonable excuse, fails to attend as a witness, or to testify as lawfully required before any . . . examiner . . ., any judge of a court of record or a circuit court commissioner in the county where the person was obliged to attend may, upon sworn proof of the facts, issue an attachment for the person, and unless the person shall purge the contempt and go and testify or do such other act as required by law, may commit the person to close confinement in the county jail until the person shall so testify or do such act, or be discharged according to law. . .

(emphasis added). It is thus clear that ALJs of the Equal Rights Division have the authority to decline to enforce a subpoena if there is a "reasonable excuse" or "reasonable cause" for non-compliance with the subpoena.

Under § 805.07(3), "upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, the court may . . . quash or modify the subpoena if it is unreasonable and oppressive". While this particular subsection is not expressly referred to in the rules of the ERD or in the provisions of the APA concerning subpoenas, the commission believes that the "unreasonable and oppressive" standard is implicit in the "reasonable excuse" and "reasonable cause" standards which are expressly applicable in ERD proceedings. A witness must be considered to have a "reasonable excuse" and "reasonable cause" for not complying with a subpoena which is unreasonable and oppressive. The commission therefore concludes that ALJs of the Equal Rights Division have the authority to quash subpoenas if they are unreasonable and oppressive.

As noted, the subpoena in this matter was served on the witness only on the night before the hearing, by leaving it at his house, and it was only actually received by him when he came home from work early on the morning of the day of hearing. The complainant's assertion that the subpoena had been given to a process server some days before, does not constitute a satisfactory excuse. The complainant must be charged with responsibility for the failure of the agent he chose to serve the subpoena in a timely fashion, and that failure is unexplained. When a subpoena is served this shortly before a hearing, without a sufficient excuse being offered, it is reasonable to consider it to have been unreasonable and oppressive, and to consider the late service to be a "reasonable excuse" and "reasonable cause" for non-compliance with the subpoena. In these circumstances, the decision by the ALJ to quash the subpoena was not an abuse of discretion. See, Tate v. Rouse-Milwaukee, Inc. (LIRC, May 16, 1995) (subpoenas quashed where served the night before the hearing). (2)

Complainant's citation to complainant's deposition to establish facts -- In the brief on behalf of the complainant, his attorney cites to the complainant's discovery deposition to support a number of factual assertions and for other reasons. Presumably anticipating an objection to this (and indeed, an objection was raised in respondent's brief), complainant argued in his brief that "[p]ursuant to § 804.07(1)(b), Wis. Stats., the deposition may be used for any purpose." That is not correct. In fact, § 804.07(1)(b). provides that the deposition of a party may be used by an adverse party for any purpose. Complainant's argument ignores the "by an adverse party" limitation. It is only the party adverse to the complainant (i.e., the respondent), that is free to use the complainant's deposition for any purpose. No provision anywhere in § 804.07 allows the complainant to use his deposition in the manner attempted in his brief.

On several important points the complainant's deposition testimony was the only thing the complainant offered to support factual assertions in his brief. Thus, the assertion about the complainant having had two subsequent surgeries on his back is supported solely by reference to his deposition testimony -- which means, in effect, that there is no admissible record evidence to support that assertion. Also, the assertion that the complainant could have returned to work following these asserted subsequent surgeries, is supported only by reference to his deposition and to testimony he gave at hearing. However, as the respondent argues, that testimony was immediately objected to and the objection was sustained and the testimony ordered stricken. (T. 182). This ruling was clearly proper; the testimony was being offered to prove the truth of the matter asserted (that the complainant was physically able to return to work) and was thus hearsay, as well as relating to a matter of essentially medical fact which the complainant was not competent to pronounce upon. Because the deposition testimony could not be used by complainant, and because this hearsay testimony was properly excluded, all of the cited support for the assertion made in the complainant's brief drops away.

Attorney Sally A. Piefer
Attorney James R. Scott

Appealed to Circuit Court. Affirmed January 7, 2005.

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(1)( Back ) See also, Lane v. DOC (Personnel Comm., June 7, 2001)(no handicap on "perceived handicap" basis where the only related history was a recent leave of absence which employer believed was for a temporary stress condition).

(2)( Back ) The commission would also note that the complainant provided little if any explanation of what Susnik would have testified to. There would thus be no basis upon which to conclude that the ALJ's decision to quash the subpoena, even if erroneous, had any substantial prejudicial effect on the complainant.


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