CARMEN ARROYO, Complainant

BEELINE, 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 conclusions in that decision as its own, except that it makes the following modification:

Paragraph 4 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed June 30, 2004
arroyca . rmd : 125 : 9

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Apparently in February 2003, Carmen Arroyo applied for a part time position with the respondent, a lingerie store. Arroyo's stepson, who worked as a security guard at the mall where the respondent's store was located, had notified Arroyo that the respondent was looking for help. The position involved making retail sales, cashiering, putting items on hangers for display, putting lingerie away, cleaning the floor and watching for shoplifting.

After ascertaining that Arroyo's children would not interfere with her ability to work because they were grown children, the owner of the respondent asked Arroyo why she was not already working. When Arroyo responded that it was because she had asthma, the owner immediately interrupted her and stated that the job was "too hard for her."

After the owner cut her off without providing a chance to say anything further, Arroyo concluded that she was not going to get the job, so she did not believe it worthwhile to relate her work experience. Arroyo had previously worked as a bartender, cashier, and even in a very cold meat packing plant, without any problems despite her asthma. Arroyo had last worked at a casino but had to leave that employment due to an automobile accident. Arroyo had never before been refused hire or terminated from any job by an employer because of her asthma.

Arroyo's asthma has been getting worse during the past two years, and that is why she had not been currently working. However, she has no medical restrictions because of her asthma. Arroyo uses a nebulizer each morning, and she uses an inhaler or drinks water when she starts to cough.

The respondent claimed that it did not remember Arroyo applying for the position and that it did not know what asthma was. However, the ALJ, who was present at the hearing to observe the demeanor of the witnesses, found Arroyo and her stepson to be credible witnesses and the commission finds no reason to question his credibility assessment. Indeed, the respondent's own testimony that she hires the "healthier person" which is "better" for the respondent supports the fact that it refused to hire Arroyo because of her health condition. The respondent, however, simply perceived that Arroyo would be unable to perform the job due to her asthma. No evidence was presented to show that Arroyo was physically unable to perform this part time job with or without reasonable accommodation.

Although the respondent's counsel filed a timely petition and requested an opportunity to submit written arguments, no written arguments were submitted in this matter. Further, the respondent's petition for review does not specifically challenge any procedural or evidentiary rulings made by the ALJ, nor does it challenge any specific findings of fact as being unsupported by the record, or specifically assert whether and why any conclusions of law are claimed to be in error. Notwithstanding this, the record in this matter has been carefully reviewed for the purpose of determining whether the findings and conclusions of law made by the ALJ are supported. Concluding that they are, the commission has adopted them as its own.

cc: Attorney Lilah J. Zajac

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uploaded 2004/07/06