STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

TIMOTHY FAIR, Complainant

BASIC METALS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200404127, EEOC Case No. 26GA500095


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 conclusions in that decision as its own, except that it makes the following modification:

Paragraph 5 of the FINDINGS OF FACT is deleted and the following is substituted therefor: Each day Basic Metals makes about 15 to 20 skids on which to place its finished product.

DECISION

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

Dated and mailed December 21, 2006
fairti . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION

Timothy Fair appeals from the ALJ's dismissal of his complaint of alleged race and disability discrimination with respect to his terms and conditions of employment and termination of employment. Fair is a black male. Fair alleges that he has allergic rhinitis.

Fair began employment with the respondent in August 2003 through a temporary employment agency and became a permanent employee of the respondent on January 26, 2004. The respondent is a small company. It employed five to six individuals as helpers and three to four machine shear operators at the time relevant herein. Prior to becoming a permanent employee of the respondent Fair had worked as a helper. The duties of a helper included catching parts off the shear machine, building skids, packaging material, pouring coils, keeping the shop clean and other functions to keep the machines running. Dan Komberec, the plant manager, hired Fair in January 2004. When Fair was hired as a permanent employee Komberec hired him as a shear operator, but due to performance problems in this position Komberec demoted him back to the position of helper in February 2004. Fair's employment with the respondent ended shortly before 8 a.m. on October 11, 2004, after what apparently escalated to a heated exchange with Komberec about a directive to build skids.

The ALJ concluded in a decision issued after a hearing held on Fair's complaint of discrimination that Fair had failed to establish by a fair preponderance of the evidence that Basic Metals violated the Wisconsin Fair Employment Law by discriminating against Fair in his terms or conditions of employment because of race or disability, and that Basic Metals did not terminate his employment.

In his petition for review, Fair asserts that on October 8, 2004, he asked Komberec to rotate the helpers around because building the skids was making him sick. (Fair asserted at the hearing that he experienced symptoms of congestion, lightheadedness and a weakness in strength from wood sawdust when building skids and that he complained about this to Komberec.) Fair asserts Komberec therefore told him that on Monday, October 11 he wouldn't have to build skids anymore and could go back to his coil pouring job. Fair asserts that he reported for work on October 11 to do his job as a coil pourer but when Komberec arrived, Komberec told him to either build skids or "get the hell out." Fair further asserts that Komberec knew about his "allergy and sinus disability" because Komberec stated at the hearing that he saw him stuffing tissues in his nose. Fair further suggests that he understood Komberec to have permitted him to go to the doctor on October 11, 2004. Fair asserts that later that day after furnishing the respondent a doctor's excuse requesting that he be provided a dust-free work environment the respondent terminated his employment. Fair's assertions fail.

First of all, at the hearing Komberec testified that on Friday, October 8 he told Fair he would be needed to build skids on Monday, October 11, that on October 11 when he asked Fair why he wasn't building skids Fair responded, "I'm not a skid builder." Komberec testified that he told Fair he was supposed to be building skids, that Fair again said he was not a skid builder, and that after this went back and forth he told Fair he was either going to build skids or he was going to get out of the shop and not come back. Komberec testified that there was no coil pouring position, that a work day could not be filled by just pouring coils because pouring coils takes 10 or 15 minutes to do. Further, Komberec denied that Fair had ever complained about any health problem or about having a problem building skids. Komberec admitted that he once saw tissue stuffed up Fair's nose but stated he did not know why or have any reason to believe that it may have been because of allergies. Further, the evidence is patently clear that Fair's employment ended early during the morning on October 11, 2004. Fair could not reasonably have believed that he was being permitted to leave work to see a doctor. Fair himself states that Komberec told him to either build skids or "get the hell out." Second, based on Fair's demeanor and testimony, the ALJ did not find him to be a credible witness. The commission finds no compelling reason to question the ALJ's credibility assessment. Third, even assuming that Fair had allergies and that Komberec knew about his allergies, Fair presented no competent medical evidence to establish that during his employment he had a disability within the meaning of the Wisconsin Fair Employment Act. Fair had not received any medical diagnosis of his condition while employed by the respondent. Fair simply testified that he had certain symptoms when building skids. Fair did not have a physician testify about his alleged condition or present any medical records to substantiate it. Fair's testimony about his symptoms alone is insufficient to establish that he is an individual with a disability. Absent competent medical evidence of the nature, extent, or permanency of his condition, Fair cannot prove that he has a disability. Erickson v. LIRC & Quad Graphics, 2005 WI App 208, 287 Wis. 2d 204, 704 N.W.2d 398 (2005); Wollenberg v. Webex, Inc. (LIRC, 11/08/91).

Apparently with regard to his terms and conditions of employment, Fair also asserts in his petition for review that Brian Mohs, respondent's quality manager, was wrong for instructing him to clean up paper behind a machine and for writing him up for insubordination for not cleaning up the paper. Fair apparently asserts that a white worker, Jeff Dalton, should have also been written up for insubordination. However, Mohs testified that he had asked Fair to clean up the paper and that Fair refused, stating that he wasn't a janitor and that he didn't make the mess. The ALJ credited the testimony of Mohs. Again, the commission finds no compelling reason to question the ALJ's assessment of witness credibility. Mohs testified that he asked the first person he saw that was available to help. Fair's job duties as a helper included keeping the shop clean. Fair presented no evidence to show that Dalton had been asked to clean up the paper but refused to do so.

The commission finds that the evidence supports the decision of the ALJ and therefore affirms the ALJ's dismissal of Fair's complaint.

cc: Attorney Jennifer S. Walther



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uploaded 2006/12/27