JOHN J GRELL, Complainant

BACHMANN CONSTRUCTION CO INC, Respondent

Two administrative law judges (ALJs) for the Equal Rights Division of the Department of Workforce Development issued decisions 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 ALJs. Based on its review, the commission agrees with the decisions of the ALJs, and it adopts the findings and conclusions in those decisions as its own, except that it makes the following modifications:

In the decision issued by ALJ Cohn on September 16, 2004, the final two sentences of the final paragraph of the decision section, which follow the statutory citation, are deleted, and the following substituted:

The complainant's charge that the respondent failed to reasonably accommodate his disability was not timely filed and is required to be dismissed as a result.

The decisions of the administrative law judges (copies attached), as modified, are affirmed.

Dated and mailed July 15, 2005
grelljo . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

On December 21, 2002, the complainant filed what he characterized as an amended charge, alleging that the respondent failed to reasonably accommodate his disability of osteoarthritis when, continuing until his last day of work on January 18, 2002, it continued to assign him duties outside his work restrictions; in July/September 2000, rejected his treating physician's recommendation that he be appointed to a supervisory position; and, during 1999, refused his request to be appointed to a safety officer position.

An initial determination was issued on April 9, 2003, finding no probable cause in regard to the age/disability discrimination issue, and probable cause in regard to the reasonable accommodation issue. Then, for reasons not apparent to the commission, the department scheduled separate hearings on these issues.

Notice that hearing on the discrimination issue would be conducted on August 28, 2003, was mailed to the parties on June 3, 2003.

In a letter to ALJ Brown dated August 15, 2003, complainant's apparently newly retained counsel stated that she was representing the complainant, and was providing notice that she "would like to depose Al Bachmann...on Monday, August 25 at 9:00." This letter does not indicate that a copy was sent to respondent. Respondent was not represented by counsel at the time.

In a letter to respondent dated August 19, 2003, ALJ Brown explained that counsel for complainant had informed the ERD that complainant intended to take Al Bachmann's deposition, and that this could be accomplished any time on or after August 25, 2003.

In a letter to ALJ Brown dated August 22, 2003, counsel for complainant indicated she had spoken to Al Bachmann that day and he had told her that, due to vacation and work conflicts, he would be unavailable to be deposed prior to the August 28 hearing; and, because she had not received a copy of the respondent's list of hearing witnesses, she would object to the testimony of any witness offered by respondent at hearing.

In a letter to ALJ Brown dated August 22, 2003, Al Bachmann indicated that he had been unaware until that day of the complainant's intent to take his deposition prior to hearing; due to vacation and work commitments, he would be unavailable on or after August 25 to be deposed until the late afternoon of August 27; the complainant's list of hearing witnesses/copies of hearing exhibits (which ERD received on August 18) was received by the respondent on August 22; and the respondent's list of hearing witnesses/copies of hearing exhibits had been mailed to the complainant on August 14 because the respondent was not aware at that time that the complainant was represented by counsel.

On August 25, 2003, respondent's counsel filed a notice of appearance.

There is no indication in the case file that the complainant ever filed a notice of deposition as required by Wis. Stat. § 804.05, or a motion to compel discovery.

Hearing was held on August 28, 2003, as scheduled. There is no mention of a deposition of Al Bachmann, or of an attempt to depose him, in the hearing record.

On December 12, 2003, ALJ Brown issued his decision finding no probable cause to believe that age/disability discrimination had occurred as alleged.

Notice that hearing on the reasonable accommodation issue would be conducted on April 20, 2004, was mailed to the parties on January 21, 2004.

On February 3, 2004, the respondent filed its answer to the reasonable accommodation allegation, stating as affirmative defenses that complainant's claim was barred by the applicable statute of limitations, there had been a failure to mitigate damages, complainant did not qualify as an individual with a disability within the meaning of the WFEA, and ERD had already issued a decision concluding that complainant had not been discriminated against in regard to his effective termination.

On February 5, 2004, counsel for complainant filed notice that she was no longer representing the complainant.

The hearing on the reasonable accommodation issue was convened by ALJ Cohn as scheduled on April 20, 2004. Prior to taking evidence, ALJ Cohn granted the respondent's motion to dismiss, relying upon the requirement that, to establish the existence of an actual disability, a complainant must offer expert medical testimony, and the complainant's acknowledged failure to provide notice that any medical expert would be testifying, or any certified medical records would be offered, as part of his case.  
 

Discrimination issue

In his petition, the complainant takes issue with the fact that Al Bachmann was not deposed prior to hearing.

However, although complainant's counsel properly provided notice to the respondent, pursuant to Wis. Adm. Code § DWD 218.14(2), of complainant's intent to depose Al Bachmann, the file in this matter does not indicate that a notice of deposition was ever served on Al Bachmann or on the department as required by Wis. Stat. § 804.05 and Wis. Adm. Code § DWD 218.14. In addition, although the complainant implies in his petition that ALJ Brown denied a request to postpone the hearing to allow the complainant additional time to complete discovery, there is no reference to this in the file or in the hearing record. Moreover, even if such a request had been presented to ALJ Brown, its denial would have been appropriate given that the complainant had many months to retain counsel and to undertake discovery, but waited until immediately before the hearing before doing either.

Turning to the merits of the age/disability discrimination issues, the commission agrees with ALJ Brown that the complainant failed to sustain his burden to show probable cause.

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 parties stipulated at hearing that, for purposes of the effective termination (layoff/failure to recall) issue only, the complainant qualified as an individual with a disability within the meaning of the WFEA.

Complainant next has the burden to prove that he was laid off and then effectively terminated because of his disability or age. Target Stores, supra.; Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see, also, Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

It will be assumed for purposes of analysis that the complainant succeeded in establishing a prima facie case of disability and age discrimination here. See, U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983)(the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken); Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).

The respondent has articulated a legitimate, non-discriminatory reason for its layoff of the complainant in January of 2002, i.e., lack of work and the complainant's shortest tenure as an expediter; and its effective termination of the complainant, i.e., his failure to return tools owned by the respondent.

The burden would then shift to the complainant to demonstrate pretext.

The complainant asserts in regard to his layoff that pretext is demonstrated by the fact that the respondent had never laid off an expediter before, and that, although he had been an expediter a shorter period of time than the other four workers, he had more seniority with the respondent and was qualified to perform a wider range of construction tasks than they were.

However, the complainant did not successfully rebut the respondent's evidence that the number of projects the respondent was working on had significantly declined in January of 2002, and, since the role of expediters is to coordinate the transportation of materials to and from projects, the need for expediters declined accordingly.

In addition, there was a sound business reason for the selection of the expediter with the least experience in that position as the one to be laid off, and the complainant's greater overall seniority and ability to perform other tasks were not necessary, or even particularly relevant, factors for the respondent to consider in making that determination.

The complainant asserts in regard to the respondent's decision not to recall him from layoff that pretext is demonstrated by the fact that Al Bachmann failed to conduct a thorough and objective investigation before concluding that the complainant had improperly converted hand and power tools belonging to the respondent. However, the record establishes that, not only was Al Bachmann told by Mike Grell that the complainant had told Mike just to keep one of the respondent's power tools, but Al Bachmann also contacted Jim Bunker, who corroborated Mike's version of events. Moreover, during the period of time he was considering whether to recall the complainant from layoff, Al Bachmann gave the complainant the opportunity to return tools he admitted he possessed, but the complainant failed to do so. Al Bachmann was therefore justified in his belief that the complainant had effected a conversion of certain of the respondent's property.

In addition, since intent is a pertinent and necessary inquiry in a discrimination case (see, Greco v. Snap-on-Tools, ERD Case No. 200200350 (LIRC May 27, 2004)), the question of whether an employer's asserted nondiscriminatory reason is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true. See, Moncrief v. Gardner Baking, ERD Case No. 9020321 (LIRC July 1, 1992); Turner v. Manifold Services, Inc., ERD Case No. 200000679 (LIRC Jan. 31, 2002). The trier of fact need only determine that the employer in good faith believed in those reasons and that the asserted reasons for the action were not a mere pretext for discrimination. See, Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996). As a result, even if the complainant's brother and Jim Bunker had misrepresented to Al Bachmann the complainant's actions in regard to the power tool, the fact that the record shows that Al Bachmann reasonably believed them, particularly after the complainant engaged in consistent conduct by failing to return the other tools he admitted he possessed, would militate against a conclusion that pretext had been demonstrated in this regard.

In addition, it should be noted that one of the other workers not recalled by the respondent after the January 2002 layoff, Paul Washington (dob 11/7/70), was not only younger than the complainant, but not in the protected age group; and that the four workers other than the complainant not recalled (Washington, Scott Fredericksen, Ray Einerson, James Baier) had no work restrictions or other indicia of disability at that time. This evidence would tend to support a conclusion that the decision not to recall the complainant from layoff was based on something other than age or disability.

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

Reasonable accommodation issue

The separate hearing on this issue was convened by ALJ Cohn as scheduled on April 20, 2004. Prior to taking evidence, ALJ Cohn granted the respondent's motion to dismiss, relying upon the requirement that, to establish the existence of an actual disability, a complainant must offer expert medical testimony, and the complainant's acknowledged failure to provide notice that any medical expert would be testifying, or any certified medical records would be offered, as part of his case.

ALJ Cohn ruled at hearing that, in view of the complainant's failure to file a list of potential witnesses prior to hearing, he would only be permitted to call as witnesses himself and Al Bachmann, the only witness other than the complainant noticed by respondent, because the complainant had received instructions relating to the notice requirement, had presented no explanation for his failure to file a witness list, and to permit him to call other witnesses would prejudice the interests of the respondent. This ruling was proper and, in fact, generous to the complainant. ALJ Cohn also ruled that, in view of the complainant's failure to file copies of potential exhibits prior to hearing, he would only be allowed to offer those documents noticed by the respondent. This ruling was also proper and generous to the complainant. These documents generally consisted of written statements made to the department investigator by the complainant, the agreement between the respondent and the union assigning him expediter duties due to his medical condition, and a document which indicated in part that the complainant was restricted to light duty in January of 2000 and moved to expediting due to work restrictions in November of 2001.

However, the commission does not agree with the rationale underlying ALJ Cohn's decision to grant the respondent's motion to dismiss.

In her decision, ALJ Cohn states as follows:

Section 111.34(1)(b), Wis. Stats., states, "Employment discrimination because of disability includes, but is not limited to: [r]efusing to reasonably accommodate an employee's...disability unless the employer can demonstrate that the accommodation would pose a hardship on the employer's program, enterprise or business." Wisconsin case law has held that lay testimony is insufficient for the purpose of drawing the legal conclusion that an individual is disabled under the Wisconsin Fair Employment Act. See Wollenberg v. Webex, Inc., (LIRC, 11/08/91), Bauman v. Specialties (DILHR, 10/03/75)....

Given the state of the law in this regard, this is too sweeping a pronouncement.

Competent medical evidence is required to establish the existence, nature, extent, and permanency of an impairment, if disputed as a matter of fact. Connecticut General Life Ins. Co. v. DILHR, 86 Wis.2d 393, 273 N.W.2d 206 (1979). See, also, Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003); Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC Sept. 16, 2004). Here, although the respondent disputes that the complainant was an individual with a disability within the meaning of the WFEA, it is not clear, particularly given its response to the original charge and the evidence of record in the first hearing, whether the respondent is disputing that the complainant was diagnosed with osteoarthritis, the claimed disability, or the nature, extent, or permanency of this condition.

Moreover, even if the evidence the complainant could have offered at hearing would have been insufficient to establish the existence of an actual impairment, he presumably could have offered evidence, through his testimony and that of Al Bachmann, consistent with that offered in the first hearing to the effect that the complainant provided medical documentation of his diagnosis of osteoarthritis to the respondent which included the imposition of permanent work restrictions, sufficient to establish that the respondent had reason to perceive the complainant to be disabled. See, Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004).

ALJ Cohn, in her statements on the hearing record, appears to be under the impression that no duty of reasonable accommodation arises as a result of a perceived disability. However, in Mateski v. Nuto Farm Supply, ERD Case No. CR200200727 (LIRC Feb. 15, 2005), the commission specifically noted that it had not previously addressed this question and it was unnecessary to do so under the facts in that case. The commission also noted in its decision in Mateski that the federal courts were "not in complete agreement on whether or not the duty of reasonable accommodation is limited to plaintiffs who have an actual disability." Given the unsettled nature of the law in this regard, it was inappropriate for ALJ Cohn to grant the motion to dismiss offered by the respondent.

However, other bases exist for dismissing the complainant's reasonable accommodation claim.

Given that this allegation centered on a different set of facts, i.e., different "transactions," than the original charge, it should have been processed as a new charge rather than as an amendment. As a new charge, it was untimely filed since it encompassed actions, i.e., assignment to work outside his restrictions and failure to appoint to supervisory or safety officer positions, which occurred outside the 300-day filing period specified in Wis. Stat. § 111.39(1). The reasonable accommodation allegation was filed on December 21, 2002, more than 300 days after January 18, 2002 (337 days), the last day the complainant could have been assigned to perform work outside his restrictions; more than two years after the respondent allegedly rejected his physician's recommendation to place him in a supervisory position; and at least three years after the respondent had allegedly refused the complainant's request to be appointed to a safety officer position. Since the 300-day filing limit specified in the WFEA is not considered a jurisdictional requirement but instead a statute of limitations, the commission may not address the untimely filing issue sua sponte. However, in its answer filed February 3, 2004, the respondent raised the issue as an affirmative defense. See, Wilson v. Burnett County Sheriff's Department, ERD Case No. 9202769 (LIRC Sept. 29, 1995).

Moreover, even if it were arguable that certain of the facts underlying the reasonable accommodation allegation were not properly viewed as separate transactions but instead as actions inextricably linked to the effective termination at issue here, in view of the commission's affirmance of ALJ Brown's decision that the complainant was selected for layoff and not recalled because of lack of work, his tenure in the expediter position, and his failure to return tools owned by the respondent, not because of disability, there would no longer be any reason to address the reasonable accommodation issue in this context. See, Potts, supra. (issue as to whether complainant had been harassed based on disability, or denied reasonable accommodation, moot after commission decided complainant had been constructively discharged because of respondent's poor financial condition, not disability).

cc: Attorney Bradley C. Fulton

Appealed to Circuit Court. Affirmed February 22, 2006.

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