WILLIAM J BURZYNSKI, Complainant

CELLU TISSUE HOLDINGS INC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The first two sentences in the procedural introduction to the administrative law judge's decision are deleted and the following is substituted therefor:

"In a complaint filed on December 26, 2002, with the Equal Rights Division (Division) of the Department of Workforce Development, the complainant, William J. Burzynski, alleged that the respondent, Cellu Tissue Holdings Inc., violated the Wisconsin Fair Employment Act, secs. 111.31 -- .395, Wis. Stats., by discriminating against the complainant by refusing to hire or employ him because of age and disability. In an initial determination issued on August 3, 2003, an investigator for the Division found no probable cause to believe that the complainant was discriminated against because of age. No appeal was filed by the complainant, and that portion of the initial determination is now final. In the same initial determination the investigator found probable cause to believe that the complainant was discriminated against because of disability, as alleged in his complaint."

2. In paragraph 2 of the administrative law judge's FINDINGS OF FACT the date "February of 2003" is deleted and the date "February of 2002" is substituted therefor.

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

Dated and mailed November 14, 2005
burzywi . rmd : 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 established he was an individual with a disability. Specifically, the complainant maintains that he testified he had a previous lumbar decompression procedure in 1997, then was reinjured on January 14, 2002, after which he was given work restrictions. He contends that medical records reflect he has a degenerative back condition, and that he testified he is on constant alert in bending, lifting and performing daily activities, that sitting poses a problem, and that driving requires lumbar support. The complainant further contends that the respondent perceived him as having a disability because Tammy Harrer was aware of his back surgery and knew he had had back problems in the past. He also states that Scott La Rue was in a position to see the complainant's worker's compensation paperwork and to provide that information to Ms. Harrer. These arguments fail.

The evidence adduced at the hearing established that the complainant sustained two back injuries during the course of his employment with American Tissue, the respondent's predecessor, and had temporary work restrictions which were no longer in effect at the time the adverse hiring decision was made. The complainant's medical records indicate that he was treated for back pain in early 2002, but that his condition was improving over time. The commission is unaware of anything in the medical records establishing a diagnosis of any condition that could be regarded as a permanent impairment. Further, although the complainant testified that he has to be careful in his movements and has to use lumbar support when he drives, these are very minor constraints, and the complainant did not demonstrate that they place substantial limitations on life's normal functions or on a major life activity, or that they limit his capacity to work.

The complainant's contention that the respondent perceived him as having a disability is also unsupported by the record. Tammy Harrer, the individual who made the hiring decision, was aware that the complainant had had back problems. However, Ms. Harrer testified that the complainant's back injury did not keep him from performing his job and that she did not believe he had any work restrictions. The record contains nothing to suggest that Ms. Harrer, who testified that she herself has back problems, perceived the complainant as being disabled. While the complainant suggests that Ms. Harrer could have perceived he had a disability based upon information provided by Scott LaRue, such speculation is without support in the record.

Even if the complainant had met his burden of establishing that he is an individual with a disability -- and the commission concludes he has not -- there is no reason to think that his disability or perceived disability played any role in the adverse hiring decision. American Tissue had had three pipe fitters, but the respondent intended to operate with a smaller work force and hired only one pipe fitter. The individual who was selected had more seniority than the complainant, a fact which the complainant does not dispute, and in Ms. Harrer's estimation, was more highly skilled. While the complainant suggested that he should have been considered for other maintenance positions, he acknowledged that ninety-five percent of his experience was in pipe fitting and that he really had no other maintenance experience. The complainant also suggested that he should have been considered for other non-maintenance positions because he had some experience outside of the maintenance department. However, while the complainant identified three individuals whom he believes had less seniority than he and were hired for other departments, there is nothing in the record to indicate that those individuals were hired to perform jobs for which the complainant was more qualified.

It is clear from the record that the respondent made its hiring decisions quickly, and based those decisions on extremely limited information, without benefit of personnel files, job interviews, or discussions with former supervisors. It is understandable that this type of hiring process would have created an impression of unfairness for those individuals who were not selected, none of whom were given a chance to make a case for themselves. However, there is simply nothing in the record to suggest that the complainant would have been hired if not for his prior back injuries. Ms. Harrer testified it was her understanding that all of the individuals who were on the list to be considered for hire, including the complainant, were physically capable of doing the work. She also testified that the respondent hired numerous people who had sustained on-the-job injuries. The complainant was not among them because Ms. Harrer did not regard him as being the best qualified.

The commission has considered the remaining arguments raised by the complainant, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed to demonstrate he was discriminated against in the manner alleged, the dismissal of his complaint is affirmed.

cc:
Attorney Robert J. Craanen
Attorney Stacie J. Andritsch

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uploaded 2005/11/22