ERD Case No. 8451573

On August 13, 1984, Complainant filed a charge of discrimination with the Equal Rights Division of the Department of Industry, Labor and Human Relations alleging that Respondent discriminated against him on the basis of his handicap (Reiter's Syndrome) in regard to his discharge, in violation of section 111.34 of the Fair Employment Act. On February 7, 1985, an Initial Determination was issued by the Department which found no probable cause to believe discrimination occurred as alleged. Complainant then filed a timely petition for hearing and the matter was certified to hearing. Pursuant to notice, a hearing was held on October 9, 1985, before John A. Grandberry, a duly authorized Hearing Examiner for the Department. On January 28, 1986, the hearing examiner issued a decision which affirmed the Initial Determination. As a result, the hearing examiner ordered that the charge of discrimination (complaint) be dismissed. The Complainant filed a timely petition for Commission review of the examiner's decision. Both parties submitted written arguments to the hearing examiner prior to the issuance of his decision. Both parties submitted briefs to the Commission. The written arguments and the briefs were considered by the Commission in its review.

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


1. Complainant began his employment with the Respondent on January 16, 1984, as a Shipping Clerk in the Shipping and Receiving Department. Complainant's duties consisted of filling orders, shelving merchandise and related duties as directed.

2. Complainant was interviewed and hired for the position of Shipping Clerk by Respondent's Warehouse Manager,. Mr. Jim Foshey.

3. On January 13, 1984, the day Mr. Foshey interviewed Complainant for the job, Complainant filled out a job application. Complainant noted on the application that he had no serious illness or handicap. Complainant's representation regarding his physical status on the application form was truthful as to that point in time because Complainant had no serious illness prior to that date.

4. On Complainant's first day of work, Mr. Foshey gave Complainant a copy of Respondent's Policy Manual for employes. Mr. Foshey told Complainant to read the manual and to ask him about any questions he had regarding the manual. Complainant never raised any question to Mr. Foshey about the manual or the rules contained therein.

5. Respondent's Policy Manual provides on page four, as follows:

"All employees who are sick must call in and report to their immediate supervisor before 9:00 a.m. Anyone who does not call in an illness will be given a written warning. A second instance without a doctor's excuse, will result in immmediate termination."

6. Respondent's accounts receivable clerk, Ms. Christina Westfall, started work between 7:00 a.m. and 7:30 a.m. each morning. Respondent's receptionist, Ms. Barbara Peterson, started work at 8:00 a.m. each morning. When Ms. Peterson was present, she took all incoming calls for Respondent. If an employe called in sick while she was at work, she would forward the calls to the appropriate supervisor. If the supervisor was not yet at work or was otherwise unavailable, she would tell the employe to call back and talk to their supervisor. Ms. Peterson was told to follow this procedure by Mr. John DeGlopper, Respondent's President. Ms. Westfall would take calls during the early morning hours before Ms. Peterson arrived at work. If an employe called in sick, Ms. Westfall would simply take a message and give the message to the appropriate supervisor. Ms. Westfall was never told by Respondent that it was improper for her to forward messages from employes who called in sick.

7. Respondent stated that its written call-in policy required employes to call in and speak to their supervisors directly. Respondent stated that if their supervisor was not available, employes were expected to keep calling back until they could speak to their supervisors directly. Respondent stated that employes violated the written policy if they called and simply left a message with the person answering the phone, without the required conversation with their immediate supervisor. Complainant's immediate supervisor was Mr. Foshey.

8. Complainant worked for Respondent 35 days. He was absent 11 of those 35 days. Part of those absences included a period of hospitalization, during which Complainant was diagnosed as suffering from Reiter's Syndrome, an inflammatory arthritic condition. The medical release to work given to Respondent after Complainant's hospitalization, did not describe Complainant's medical condition.

9. For several of his absences, Complainant called Ms. Westfall and simply left a message of his illness with her to be forwarded to Mr. Foshey. Mr. Foshey said he spoke to Complainant about a week before Complainant was terminated telling Complainant that Complainant had to talk to Mr. Foshey directly. Complainant denied that Mr. Foshey ever warned him that he should call his illnesses in directly to Mr. Foshey.

10. On March 5, 1984, Complainant called in to work between 7:30 a.m. and 7:45 a.m. to report that he was ill and would not be in to work that day. Complainant spoke with Ms. Westfall. Complainant asked Ms. Westfall to make sure that Mr. Foshey would be told of his absence. Complainant also told Ms. Westfall that Complainant was going to ask his physician to call Respondent regarding his illness. Ms. Westfall told Complainant that Mr. Foshey usually arrived around 8:30 a.m., and that Complainant should have his physician call at that time to make sure that the physician could talk to Mr. Foshey.

11. Complainant then called his physician sometime before 8:00 a.m. on March 5, 1984. Ms. Valerie Graf-Fleck, the physician's assistant, took the call because she was the only person at the physician's office at that time of the morning. Complainant told Ms. Graf-Fleck that he was not feeling well. He asked her to call his doctor and to call his employer regarding his absence. He told her he was worried he might be fired if the doctor did not call the employer.

12. Sometime later that morning, at around 8:00 a.m., Ms. Graf-Fleck called Respondent's office and spoke to a woman whose name she could not recall. Ms. Graf-Fleck told the unidentified woman that Complainant would not be able to work that day. She also explained that Complainant was suffering from Reiter's Syndrome and the nature of the illness. Ms. Graf-Fleck said if the employer had any questions, either herself or the doctor could be reached by phone.

13. Ms. Westfall said she was the person who received Ms. Graf-Fleck's call. Ms. Westfall said she left a note on Mr. Foshey's desk relating to the call from Ms. Graf-Fleck. She said she later spoke with Mr. Foshey to make sure he saw the message. According to Ms. Westfall, Mr. Foshey said he saw the message but he was not going to call the physician's office back. Mr. Foshey said he did not know whether he received the note from Ms. Graf-Fleck or not.

14. On May 5, 1984 at 3:00 p.m. or 4:00 p.m., Mr. Foshey called the emergency contact number listed on Complainant's job application. The number was for Complainant's brother-in-law. The brother-in-law answered the phone. Mr. Foshey asked him where Complainant was. The brother-in-law said Complainant was at work. Mr. Foshey then said this was Complainant's boss calling and Complainant was not at work. Mr. Foshey told the brother-in-law that the brother-in-law should tell Complainant that Complainant was terminated.

15. Respondent said Complainant was terminated for his failure to report his absence directly to Mr. Foshey.

16. Mr. Foshey and Mr. DeGlopper acknowledged that Respondent's call-in policy required Respondent to provide a written warning to Complainant prior to his termination. Mr. DeGlopper was not aware that Complainant had not received a written warning until Mr. DeGlopper heard the testimony at the hearing. Mr. Foshey did not explain why Complainant was not given a written warning.

17. Ms. Westfall began living with Complainant "quite awhile" after Complainant was terminated. At the time of the hearing she was still working for Respondent, having been promoted to the office manager.

18. Complainant's handicap was a factor in Respondent's decision to discharge him.


1. Respondent is an employer within the meaning of the Fair Employment Act.

2. Complainant is a handicapped individual, within the meaning of the Fair Employment Act.

3. There is probable cause to believe Respondent discriminated against Complainant on the basis of handicap in regard to his discharge on March 5, 1984.


That the hearing examiner's decision be reversed and that the allegations raised in Complainant's charge of discrimination be referred to the department for conciliation, pursuant to Chapter IND 88.07(2) of the Wisconsin Administrative Code.

Dated and mailed February 18, 1987

/s/ Hugh C. Henderson, Chairman

Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


In order to establish a case of handicap discrimination, the complainant must show that he is handicapped and that he was discharged because of his handicap. If the complainant shows those factors, the burden shifts to the respondent to show that the discharge was permissible under section 111.34 of the Statutes.

A complainant's burden of proof is less in a probable cause proceeding than it would be at a hearing on the merits. In a probable cause proceeding, the complainant's burden is to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred.

The hearing examiner's decision of no probable cause was based upon the examiner's finding that Respondent did not know about Complainant's handicap at the time the decision was made to terminate Complainant. This finding was erroneous in light of Ms. Graf-Fleck's testimony that she informed Respondent on behalf of complainant's physician not only of Complainant's diagnosis of Reiter's Syndrome but also of its nature and in light of the testimony from Ms. Westfall that Respondent's supervisor was notified of the contents of Ms. Graf-Fleck's call. Mr. Foshey's inability to say whether or not he received Ms. Graf-Fleck's message was not sufficient in a probable cause proceeding to dispel the inference that Respondent knew of Complainant's handicap.

Respondent argued that Ms. Westfall's testimony should be disregarded because she lives with Complainant. The Commission disagrees. The Commission determined that any incentive which Ms. Westfall may have to misrepresent or color her testimony in favor of Complainant based upon their living arrangement was more than offset by her incentive not to misrepresent the facts based upon her continued employment with Respondent and her resulting dependence on Respondent for her livelihood.

Once Ms. Westfall's testimony is accepted as believable, the record must be analyzed to determine whether Complainant was terminated because of his handicap. The record established that Complainant was discharged without the benefit of Respondent's requirement of a written notice prior to his termination. The record suggested that Complainant was the only employe discharged for failing to comply with Respondent's call-in requirements without first receiving a written warning. The Respondent's failure to offer an adequate reason for failing to give the written warning raises the inference in the probable cause proceeding that Complainant was terminated because of his handicap.


Robert B. Moodie
Daniel G. Vliet

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