DANIEL STREY, Complainant

WISCONSIN CENTRAL LTD, Respondent

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 November 29, 2005
streyda . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission, however, agrees with the ALJ. The complainant, who was represented by counsel throughout these proceedings, did not reference events occurring, or decisions made, after the November 22 discharge as a basis for his charge. In fact, the complainant stated in his charge that the first, as well as the most recent, allegedly discriminatory adverse action was the November 22, 2002, termination of employment. In addition, the complainant did not mention in the narrative section of his charge any actions or decisions of the respondent occurring after November 22, 2002. See, Slife v. Mt. Morris Mutual Insurance Co., ERD Case No. CR200300282 (LIRC Nov. 3, 2005)(post-discharge failure to reinstate within scope of noticed discharge/layoff issue given reference to it in charge of discrimination).

The complainant in a disability discrimination case must show that (1) he is an individual with a disability within the meaning of the WFEA, and (2) the employer took the subject adverse action because of his disability. Target Stores v. LIRC, 217 Wis.2d 1, 576 N.W.2d 545 (Ct. App. 1998).

Even if the competent evidence of record supported a conclusion that the complainant qualifies as an individual with a disability within the meaning of the WFEA, the commission agrees with the ALJ that the complainant failed to sustain his burden to prove that he was discharged because of his claimed disability.

First, those who made the discharge decision could not have been motivated by the complainant's claimed disability because they had no reason to be aware of it at the time the decision was made. Moreover, where, as here, intent and motivation are at issue, the concept of constructive knowledge or notice argued by the complainant, i.e., that physical receipt of the faxed medical excuse at the respondent's place of business is sufficient alone to establish that management had reason to be aware of complainant's claimed disability, is inapposite.

It should be noted in this regard that the complainant had ample opportunity prior to November 22 to bring any medical condition to the attention of management. Although the complainant testified at hearing that he failed to accept the October assignment in Ray, Minnesota, due to his inability to stay awake while driving, he failed to mention this to the respondent at that time or thereafter. It should also be noted that, despite the fact that, as complainant testified, he had been experiencing problems falling asleep during the day for months prior to his discharge, he waited until the day before his last chance Burlington assignment was to begin before seeking medical treatment; and that, despite the fact that he was aware that he would be subject to immediate discharge if he did not report for the Burlington assignment, the complainant failed to report in reliance upon his physician's representation that he would fax a medical excuse to the respondent, without verifying that the excuse had been transmitted by the physician or received by a member of management, or even verifying that the document actually excused him from work. The record fails to show that the complainant was prevented by his claimed disability or otherwise from seeking medical care, verifying the terms or transmission of the medical excuse, or providing proper notice of his November 21 absence.

In addition, the complainant appears to be arguing that, because his absence from the work site on November 21 was necessitated by his disability, his discharge based on that absence was discriminatory. However, even if that were a viable theory of discrimination here, the complainant failed to show that his absence was necessitated by his disability. The only restriction stated by his physician at that time was the restriction on driving for more than an hour continuously. The record shows, however, that driving was not a requirement of the complainant's gang laborer position, and that it was common for gang laborers to carpool to a work site or for those with driving restrictions to take a bus. Although the complainant also testified that his physician mentioned during his November 20 visit a restriction on the operation of heavy equipment, this restriction was not set forth in the medical excuse prepared by this physician. In addition, the complainant's position description does not reflect that his gang laborer position entailed the operation of any tool or machine that would reasonably be considered heavy equipment.

Even if the record were to support a conclusion, as argued by complainant, that certain of the respondent's actions leading up to the discharge, e.g., failing to contact the complainant to determine why he did not appear for the Burlington assignment, were not optimal from a personnel management perspective, the proper inquiry here is not whether the respondent's practices were flawed but instead whether they were discriminatory.

The complainant points to instances of his allegedly unfair or inconsistent treatment by respondent, e.g., assignment to work sites more than an hour from his home contrary to earlier commitments and insulting and profane remarks by a supervisor, as evidence of respondent's discriminatory animus. However, again, the issue here is one of disability discrimination, and, given that, at the time these alleged actions occurred, the respondent had no reason to be aware of complainant's claimed disability, these incidents tend to undermine rather than support the complainant's claim that his allegedly unfavorable treatment by respondent resulted from disability discrimination.

Finally, the complainant contends that the respondent failed to accommodate his disability. However, accommodation can only be made for an apparent or a disclosed impairment, and, at the time of, or prior to, the November 22 discharge, the time period relevant here, no member of management would have had reason to be aware of such an impairment.

cc:
Attorney Carol S. Dittmar
Attorney Sandro Garofalo

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uploaded 2005/12/05