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



ERD Case No. CR200203879, EEOC Case No. 26GA202310

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, except that it makes the following modifications to more accurately reflect the evidence of record:

(1) Finding of Fact 6. is modified to read as follows:

6. Mr. Lester applied for work with Morrison, and was interviewed by Daniel Hernandez and Ms. MacDonald. During this interview, Mr. Lester stated that he had a foot infection, but that he was able to deal with it if he got the job. Mr. Lester did not request any accommodation for his foot condition. Mr. Lester was aware at the time that the job for which he was interviewing would require him to be on his feet most of the time.

(2) The following sentences are added to Finding of Fact 7.:

During Mr. Lester's 90-day probationary period, Morrison considered his work performance to be satisfactory, and he was issued no counselings, warnings, or discipline. Mr. Lester successfully passed probation.

(3) The final sentence of Finding of Fact 15. is modified to read as follows:

Mr. Lester said that he had not, but that he had been trying to get it from the foot doctor who had been treating him.


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

Dated and mailed March 22, 2005
lestera . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Disability Discrimination

The complainant's initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one who:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

An "impairment" for purposes of the WFEA is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). The test to determine whether an impairment makes achievement unusually difficult is whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). The inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis. 2d 706, 350 N.W.2d 120 (1984); Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).

The evidence of record does not establish that complainant's foot condition placed a substantial limitation on complainant's normal life functions or on a major life activity. It is not enough to state a diagnosis, i.e., "foot infection," or to list symptoms, i.e., pain and swelling with standing and walking. The complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for him. Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC August 25, 2000).

The only evidence offered by the complainant in this regard is his testimony that he occasionally experienced foot pain and swelling while standing or walking, and that he sought medical treatment for this condition. This testimony is not sufficiently specific as to the degree of pain or swelling, or the extent to which this pain and swelling limited the complainant's ability to walk or stand, to sustain the complainant's burden to prove a substantial limitation. Moreover, medical treatment is sought for conditions which are disabling as well as for conditions which are not, and the mere fact that complainant sought medical treatment for his foot condition is insufficient to support a conclusion that this condition necessarily constituted a disability as a result.

Finally, the complainant failed to offer any competent medical evidence establishing that his foot condition placed a substantial limitation on his life functions or activities during the period of his employment for Morrison. See, Wal-Mart v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633; Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC Sept. 16, 2004); Thompson v. Ashley Furniture Industries, Inc., ERD Case No. CR199903292 (LIRC July 15, 2003).

The complainant also failed to show that his foot condition limited his capacity to work. Mr. Lester offered no competent medical evidence to establish such a limitation. Moreover, he performed his job duties satisfactorily during his initial 90-day probationary period despite experiencing the symptoms of his foot condition at that time. Finally, the evidence of record does not establish a link between complainant's subsequent work performance deficiencies and his foot condition.

The record does not support a conclusion that the respondent perceived the complainant to be disabled within the meaning of the WFEA. Mr. Lester advised respondent at the time of his hire that, although he had a foot infection, it would not affect his ability to do the job. Although respondent became aware that Mr. Lester was undergoing treatment for his foot condition and requested documentation of any medical restrictions or recommended accommodations, Mr. Lester failed to supply such documentation. Knowledge that Mr. Lester was receiving medical treatment, without more, does not demonstrate that respondent necessarily or reasonably would have perceived complainant to be an individual with a disability within the meaning of the WFEA. As discussed above, medical treatment is sought for conditions which are disabling as well as for conditions which are not. See, e.g., Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Moller v. Metavante, ERD Case No. 200102621 (LIRC Nov. 13, 2003).

Even if the complainant had established that he was an individual with a disability within the meaning of the WFEA, he failed to prove that respondent discriminated against him on that basis or failed in its duty of reasonable accommodation.

The complainant admits many of the performance deficiencies cited by the respondent as the basis for his termination, and fails to offer any evidence that non-disabled employees with a comparable performance record were retained by the respondent.

Moreover, although respondent repeatedly requested documentation of medical restrictions or recommended accommodations, the complainant failed to provide any.

Finally, although the complainant testified at hearing that he was harassed by the respondent based on disability, this was not alleged by the complainant in his charge, and is not, as a result, one of the issues under consideration here.

The complainant failed to sustain his burden to show probable cause to believe that he had been discriminated against on the basis of disability as alleged. 

Age Discrimination

An employee alleging age discrimination with respect to termination from employment makes a prima facie case by showing: (a) he is forty or older, (b) he was discharged, (c) he was qualified for the job, and (d) either he was replaced by someone not within the class or others not in the class were treated more favorably. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 173 (Ct. App. 1985); Theusch v. Steel Craft Corp. of Hartford, ERD Case No. 199601535 (LIRC May 22, 1998).

The complainant, by failing to show that he was replaced by a younger worker or was treated less favorably than younger workers, did not establish a prima facie case of age discrimination here.

If the complainant had succeeded in establishing a prima facie case of age discrimination, the burden would then shift to the respondent to articulate a legitimate, non-discriminatory reason for its discharge of complainant. The record supports a conclusion that the respondent attributed its actions to continuing deficiencies in the complainant's work performance, a reason legitimate and non-discriminatory on its face.

The burden would then shift to the complainant to demonstrate pretext. The indirect evidence offered by complainant essentially consists of excuses for certain of his performance deficiencies. Even accepting such excuses, however, the remaining deficiencies demonstrate a continuing failure to meet the respondent's reasonable performance standards. Pretext has not been demonstrated here.

The complainant's direct evidence of age discrimination is his testimony that Hernandez made a comment to him impliedly linking his performance deficiencies to his age. However, because Hernandez left his position with Morrison in June of 2002, the record does not support a conclusion that any discriminatory animus Hernandez may have held would have played a part in the complainant's final three disciplinary actions or his discharge.

The complainant failed to sustain his burden to show probable cause to believe that he had been discriminated against on the basis of age as alleged. 

Hearing Procedure

In his petition for commission review, the complainant states that the administrative law judge improperly excluded certain evidence he offered at the hearing.

It should first be noted that the administrative law judge, despite the fact that the complainant had failed to respond to Morrison's discovery requests or to file copies of potential exhibits prior to hearing as required, permitted the complainant to review the case file and to offer any documents from the file as hearing exhibits. In essence, the administrative law judge excused the complainant from any of the possible consequences of his failure to properly prosecute his charge of discrimination.

The commission assumes that the complainant is taking issue with the administrative law judge's ruling that certain documents the complainant offered as hearing exhibits would not be received into the hearing record. The commission has carefully reviewed these documents and agrees with the administrative law judge, as to Exhibits C-8, C-9, C-11, C-12, and C-13, that they had little if any probative value or relevance to the matters in issue, and, as to Exhibit C-14, a letter ostensibly written by the complainant's treating physician after the date of discharge, that the document, as uncorroborated hearsay, did not constitute competent medical evidence, and was not otherwise shown to be relevant and material to the matters in issue.

Exhibit C-10 consists primarily of the complainant's notes as to an incident for which he received a disciplinary report. The commission disagrees with the administrative law judge's rationale for his exclusion of this document from the hearing record, but concludes that the exhibit would properly be excluded based on the complainant's failure to comply with applicable prehearing procedures.

The commission notes that the receipt into the hearing record of any of the exhibits excluded by the ALJ would not change the result here.


cc: Attorney Mary Aileen O'Callaghan

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uploaded 2005/03/25