MAE N. GREEN-BROWN, Complainant

MIDWEST EXPRESS AIRLINES, 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 conclusion in that decision as its own.

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

Dated and mailed September 16, 2004
greenma . rsd : 110 :

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In her petition for review, the employee asserts that there is evidence in the file that could not be admitted at the time of the hearing because it had to come from a medical professional. The commission believes that what the employee is referring to, has to do with her attempts to testify about her medical condition. The respondent objected that the employee was not competent to testify about her medical condition because she was not a medical expert and no expert evidence had been introduced concerning her condition. The administrative law judge noted this objection, and stated that the testimony by the employee about her condition could be considered as relevant to the question of whether the employer perceived her as having an impairment sufficient to make her an individual with a disability within the meaning of Wis. Stat. § 111.32(8)(c). This was the correct approach. The testimony of the employee, a layperson, could not suffice as proof that she actually had particular medical conditions. Expert testimony must be adduced concerning matters involving special knowledge, skill or experience on subjects which are not within the realm of the ordinary experience of mankind, Wal-Mart Stores v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633, and an employee will be found to have failed to establish that they actually had an impairment constituting a disability where they fail to introduce sufficient expert medical evidence to establish that point. Plaski v. Blue Cross/Blue Shield United of Wis. (LIRC, 05/21/93).

In any event, the record supports the conclusion that there was no discrimination against the complainant because of perceived disability. As the administrative law judge correctly noted, the majority of the instances of absence counted against the complainant under the employer's attendance policy were unrelated to the medical issues the complainant described in her testimony. Furthermore, as the administrative law judge noted, the employer could not be found to have refused a reasonable accommodation to the complainant in connection with its decision not to allow her to transfer to Milwaukee, where the complainant never informed the employer that she needed such a transfer because of medical issues or a medical condition. (1)

In addition, the record supports the conclusions arrived at by the administrative law judge, that there is no reason to believe that the employer discriminated against or discharged the employee because of a belief that she had attempted or would attempt to enforce a right under the FMLA, and that there is no reason to believe the employer terminated the employee because of a perception that she had a disability or because of her race. It is clear from the record, that the employee was terminated as part of an overall reduction in force in which selections for layoff were made based on performance, and that the complainant was selected for reduction because she was on provisional status due to continuing poor attendance.

In her petition for review, the employee asserts that she still firmly believes that she was discriminated against because of her race as well as her disability. However, the evidence offered at the hearing was simply insufficient to establish that fact. Therefore, the commission has affirmed the decision of the administrative law judge.

cc: Elizabeth A. McDuffie, Attorney for Respondent

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(1)( Back ) This assumes that a reasonable accommodation issue would even be presented in a case such as this, where there was no competent proof of an actual disability and the applicability of the disability discrimination protections of the Act thus depended entirely on a perceived disability theory. It is difficult, to say the least, to see how the concept of reasonable accommodation could be applied in a case in which there was no evidence that any condition which could be accommodated actually existed.

uploaded 2004/10/13