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

DAVID L NEITZER, Complainant

LABORERS LOCAL NO 931, Respondent

ERD Case No. 200101838, EEOC Case No. 26GA10780

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 October 31, 2005
neitzda . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


In his petition for commission review and supporting briefs the complainant argues that he presented testimony at the hearing from fellow union members who were referred to various jobs and that, based upon their testimony, it is clear the complainant was qualified for those referrals. Specifically, the complainant contends that Greg Puls testified that the job at the Port Edwards mill was done on an even surface and that, while some of the equipment weighed more than fifty pounds, not all of it did. The complainant also argues that Doug Palmquist testified that the job at Boldt Construction did not require work on an uneven surface and only required him to pick up and lift chunks of clay over a ten-foot area. The complainant maintains that, although Mr. Geneske stated that Boldt Construction specifically requested Mr. Palmquist, his credibility on this point is in question. The complainant additionally argues that Bruce Shepard was referred to a job for seven days backfilling, and that the complainant was capable of performing this work.

The commission has considered these arguments, but finds them unpersuasive. Mr. Puls' testimony was that the Port Edwards mill job, which lasted only a day and a half, entailed carrying scaffolding and putting it up in the tank. Mr. Puls indicated that, while some of the planks were under fifty pounds, some weighed more than fifty pounds and, further, that they were eight to sixteen feet in length and awkward to carry. Mr. Puls also indicated that not all the work was performed on flat surfaces and that there was a gradual slope. Finally, Mr. Puls stated that the tank on which he worked was forty to fifty feet high and that he could not recall whether or not he was required to climb up to the tank. Mr. Puls' testimony did not establish that the Port Edwards mill job was work the complainant could have performed within his restrictions. Moreover, even if the complainant would have been able to perform the work, the fact remains that the job was located ninety miles from the complainant's home, well in excess of his self-imposed fifty-mile driving limitation, and was within the area covered by the Stevens Point referral list rather than the Appleton list.

With regard to Mr. Palmquist's assignment to Boldt Construction, the record did not establish that this was work the complainant could have performed, given the requirement that he not work on uneven surfaces. Although Mr. Palmquist originally stated that the surface was "more or less" flat, he subsequently acknowledged that the area around the kiln was uneven. Further, even if the complainant had been capable of performing the work in question, Mr. Geneske testified that he sent Mr. Palmquist for the job because he had been a recent employee of Boldt Construction and was specifically requested by Boldt. While the complainant contends that the credibility of Mr. Geneske's testimony on this point is in question, he has not provided any compelling reason to question that testimony, which went unrebutted at the hearing.

Turning to the complainant's argument that Mr. Shepard was offered a job performing backfilling, which the complainant could have performed, such contention is not supported by the testimony of Mr. Shepard, who stated that the job entailed working on uneven surfaces and climbing down into holes which were twelve feet or deeper. It, therefore, does not appear that the complainant could have performed this work while remaining within his restrictions.

The complainant also contends that he could have done the flagman job and that his physician supports the position that he was capable of performing this job. The commission does not find this persuasive. Mr. Geneske, the respondent's general manager, testified that the area in which the flagman job was to be performed was a very high traffic area and that a flagger must be able to react "in a heartbeat" and move out of the way fast in the event a car does not stop. He stated that, in reaching the conclusion that the complainant's disability prevented him from performing the job, he relied upon the medical report prepared by Dr. Lerner, which indicates that the complainant stated he walks slowly and occasionally falls, and that for safety purposes he should be allowed to "ambulate . . . at a reduced rate of speed." While the complainant's physician, Dr. Powley, did indicate that he believed the complainant could perform the flagman duties and could probably jump out of the way quickly using his good leg if need be, he acknowledged that his familiarity with the construction industry is limited. Given all the circumstances, the commission is satisfied that the evidence supports a conclusion that the complainant's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of the flagman position.

Next, the complainant maintains that in his memorandum opinion the administrative law judge holds the respondent to a lesser duty than a "normal" employer. The complainant contends that the respondent argued that the lack of the word "membership" in Wis. Stat. § 111.34(1)(b) excuses it from accommodating the complainant, a proposition which he maintains is contrary to the legislative intent behind the statute. The complainant maintains that the respondent should attempt to accommodate him and that this may mean offering him work which would ordinarily go to members geographically closer to the job location. The complainant's argument fails. Wisconsin Statute § 111.34(1)(b), which makes it unlawful to refuse reasonable accommodations that could be provided without hardship, refers specifically to employers. The respondent in this case is not the complainant's employer, but a union hiring hall providing job referrals. The statute does not specifically require the respondent to provide reasonable accommodations, nor can the commission envision any accommodations which a union hiring hall would be able to provide that would enable a disabled worker to perform a job. While the complainant has suggested that the respondent could disregard its referral procedures and call him for jobs off the Stevens Point list, a preference which might result in a broader list of jobs for which the complainant could be considered, this is not the type of accommodation contemplated by the statute, as it is not a measure designed to enable the complainant to perform a job notwithstanding his disability. See, Owen v. Am. Packaging Co. (LIRC, February 1, 1991)(the employer's duty to accommodate an employee is satisfied if it offers an accommodation which effectively eliminates the conflict between the handicapped employee's abilities and the job requirements and which reasonably preserves the employment status); Waldera v. Cooperative Education Service Agency #11 (LIRC, Oct. 30, 2002)(a reasonable accommodation is one which would remove the barrier to the complainant's ability to perform the job and would effectively enable him to adequately undertake the job-related responsibilities of the job).

The commission also notes that the complainant's complaint contains no allegation that the respondent failed to provide a reasonable accommodation, nor does the evidence in the record suggest that he requested one. To the contrary, the evidence indicates that the complainant specified he did not want to drive more than fifty miles, rendering it unlikely that he would have been willing to accept assignments in the Stevens Point area had they been offered to him.

In his briefs to the commission the complainant also contends that the respondent should not have asked contractors if there was work he could do, but should have simply sent him to jobs and let the people on the site make a determination as to whether there was work for him. He argues that the respondent did not do so because it does not want him to receive any work. Again, this argument fails. The respondent had no duty to send the complainant for work that was in conflict with his medical restrictions, nor would such a requirement be reasonable.

Turning next to his retaliation claim, the complainant maintains that, since his accident he has been referred to jobs that the respondent now says he cannot do, such as backfilling, fire watch, hole watch and flagman. He contends that the respondent stopped making referrals after he attempted to enforce his rights under the statute. This argument is without merit. At the hearing the complainant testified that, subsequent to his injury, he did some of the jobs referred to above and had no trouble performing the job-related responsibilities. However, it was not established that the complainant was referred to any assignments which exceeded his work restrictions, and the commission is unable to conclude that the complainant was treated differently with respect to job referrals after he filed his discrimination complaint. The record demonstrates that the complainant did receive at least one job referral after his complaint was filed, but was not referred for jobs which were demonstrably in violation of his work restrictions. These facts do not support a finding that the respondent retaliated against the complainant in the manner alleged.

Finally, the complainant contends that Mr. Birder is not a doctor, but a vocational expert, and that his opinions were relevant and should have been admitted. The commission disagrees. The administrative law judge did not permit Mr. Birder to testify because he did not evaluate the complainant until several years after the alleged discrimination occurred, and would have been unable to testify about the complainant's ability to perform specific jobs during the time period at issue. The complainant has not demonstrated that Mr. Birder's testimony would have been relevant to the issues presented in this case or that the administrative law judge's refusal to hear Mr. Birder's testimony resulted in any prejudice to him.

In conclusion, the record establishes that the respondent's failure to refer the complainant for work was either because of a legitimate non-discriminatory reason unrelated to his disability, such as the distance to the job site or a preference expressed by the contractor for a specific employee, or because the complainant's disability was reasonably related to his ability to adequately undertake the job-related responsibilities of the employment. It seems clear that the complainant's inability to lift more than fifty pounds, climb ladders more than eight or ten feet, walk on uneven surfaces, or ambulate quickly, conflicted with his ability to perform many of the general laborer jobs at issue. No evidence was presented to suggest that the respondent was unwilling to refer the complainant for work based upon a bias against him due to his status as an individual with a disability or in retaliation for his having filed a prior discrimination complaint. Accordingly, the dismissal of the complaint is affirmed.

NOTE: In his brief the complainant has noted deficiencies in the hearing synopsis and has suggested that this may warrant a new hearing or, at minimum, that the commission should conduct its review by listening to the hearing tapes. Because the commission agrees that the synopsis is unacceptable, it has ordered a transcription of the testimony from the hearing tapes and has based its review on that transcription.

Attorney Brian P. Beisenstein
Attorney YingTao Ho

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