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ERD Case No. 200103866, EEOC Case No. 26GA200144

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 October 17, 2003
schlebr . rsd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


The complainant's petition for commission review in this matter does not specifically challenge any of the procedural and evidentiary rulings made by the administrative law judge, nor does it challenge any specific findings of fact as being unsupported by the record, nor does it specifically assert whether and why any conclusions of law are claimed to be in error. Thus, the commission has no specific indication as to why the complainant believes he should prevail on this record or what he claims was erroneously decided by the administrative law judge. Notwithstanding this, the record in this matter has been reviewed for the purpose of determining whether the findings of fact and conclusions of law made by the administrative law judge are supported. Concluding that they are, the commission has adopted them as its own.

It appears from correspondence in the file that the complainant believes that he was not given a full and fair opportunity by the administrative law judge to present his case at hearing, and that she should have kept the record open to permit him to submit additional medical evidence. The commission carefully reviewed the transcript of the hearing, and did not find that the administrative law judge's conduct of the hearing was improper in any way. Although the administrative law judge reminded the complainant several times of the requirement that he provide a responsive answer, she had a responsibility to do so and her reminders were appropriate under the circumstances. The complainant received due notice of the hearing and had sufficient time to prepare for it. He had a full and fair opportunity at the hearing to present evidence. The fact that he was unprepared for the hearing is not attributable to any actions on the part of the respondent or the administrative law judge, and no persuasive reason exists to allow him to present additional evidence.

The medical evidence presented by the complainant is insufficient to support a finding that he suffered from the disability of alcoholism or that he was perceived by the respondent to suffer from such a disability. The fact that respondent was aware that complainant had been arrested and convicted of driving under the influence of alcohol, and that he had spent three days undergoing inpatient treatment relating to his use of alcohol, is not sufficient to establish either that complainant was disabled or that the respondent perceived him to be disabled. As recognized in Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979), a drinking or alcohol abuse problem may or not be a disability, depending on whether it has progressed to the state that it is non-volitional. Establishing that such a non-volitional condition exists requires that complainant introduce competent, expert medical evidence to this effect. The evidence introduced by complainant here is not sufficient to satisfy this requirement. See, Geske v. H. C. Prange Co., ERD Case No. 9102344 (LIRC Dec. 9, 1993) (letter from psychiatrist indicating that complainant was being admitted to inpatient AODA treatment not sufficient to prove disability of alcoholism or to prove that respondent had reason to perceive complainant as disabled); Bailey v. St. Michael Hospital, ERD Case No. 199801010 (LIRC June 30, 2000) (the absence of a definitive report from a doctor or other practitioner explaining the nature of the complainant's condition, and establishing that the complainant's substance abuse problem rose to the level of a disability or to the level where a disability could be perceived, defeats the complainant's claim that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act).

cc: Attorney Raymond J. Pollen

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