ΚΟRRΥ LΥLE ΑRDΕLL, Complainant

ALLIANT ENERGY, 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 January 31, 2008
ardelko . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Κоrrу Αrdеll petitions for commission review of the ALJ's decision, which concluded there was no probable cause to believe that the respondent violated the WFEA by terminating his employment because of an arrest record, by refusing to reasonably accommodate a disability or by terminating his employment because of a disability.

The respondent employed Αrdеll in the position of equipment operator, beginning on October 8, 2001. Αrdеll worked 12-hour shifts that rotated between days and nights. On June 4, 2004, the respondent terminated Αrdеll's employment for failure to notify management that he had lost his driving privileges, for operating a company vehicle without a valid driver's license and because he was unable to obtain a valid driver's license. By decision dated January 17, 2005, an arbitrator determined that since Αrdеll's position required him to drive infrequently, the respondent could have reasonably accommodated his inability to drive as provided under a 1992 side agreement between the respondent and the union. However, the arbitrator also determined that the respondent's accommodation obligation lasted only so long as Αrdеll did nothing to diminish his ability to again become a licensed driver.

On January 23, 2005, Brian Dierksheide, the respondent's operations manager, saw Αrdеll driving a car and called the police to report that he was driving without a license. The police arrested Αrdеll. In February 2005, the union assistant business manager informed Αrdеll that the respondent was terminating his employment. The respondent requested the arbitrator to find that Αrdеll had forfeited his job, but the arbitrator, with great apprehension, declined to do so because he was not convinced that Αrdеll was aware of the terms of the arbitrator's decision.

On February 14, 2005, the respondent reinstated Αrdеll to his former position under a Last Chance Agreement.

On June 6, 2005, Αrdеll was found sleeping in the plant while on company time. He received a written warning for this behavior. On August 16, 2005, Αrdеll was again found sleeping in the plant while on company time, and on August 31, notified of further pending disciplinary action for sleeping in the plant on August 16, 2005.

Subsequently, on September 15, 2005, the respondent sent a letter to Αrdеll notifying him of the termination of his employment. The letter informed Αrdеll that the company had determined that on September 3 he had left his watch station for the purpose of performing a "fence check", which was not a responsibility of his job nor something his supervisor had authorized him to perform, and that he was observed operating a company truck in an unsafe manner at an excessive rate of speed (estimated to be between 40 and 50 mph despite the posted 15 mph speed limit) through the coal yard. The letter informed Αrdеll that he had recently received several coaching sessions, a written warning and a one-day suspension for sleeping in the plant, that it was obvious that progressive discipline had failed to result in an improvement in his behavior and that based on the serious nature of his actions his employment was terminated.

The ALJ determined that Αrdеll did not have a permanent physical or mental impairment that made achievement unusually difficult or limited his capacity to work, nor did the respondent perceive him as being an individual with a permanent physical or mental impairment that made achievement unusually difficult or limited his capacity to work.

On appeal, Αrdеll states that he disagrees with the ALJ's ruling that he failed to establish probable cause to believe the respondent violated the WFEA by terminating his employment because of a disability. Αrdеll argues that the respondent was aware that he may have some kind of sleeping disorder and that he also suffers from a mental impairment. With respect to his alleged mental disorder, Αrdеll argues that he "thinks" the respondent would have become aware of his "mental health issues" because he made the statement "I can't believe you didn't give me a psychiatric exam prior to me returning back to work here because I think I'm nuts" at a meeting with members of management on June 5, 2005.

Αrdеll's argument fails. Αrdеll admits that when he made this comment he "didn't think there was a firm response or anything" from the management members. Further, he admits that he did not have any discussion with anyone in management about health issues other than at his June 9, 2005 disciplinary hearing, and he admitted that "it's hard for him to say if anyone in management treated him differently" after the June 2005 meeting.

With respect to his alleged sleeping disorder, Αrdеll argues that on several occasions he let management know of a letter that he had from a June 17, 2005 visit to his family doctor, that this letter stated he should be taken off the swing shift for improved work performance and that he asked management if it wanted a copy of the June 17 letter but management never requested to see a copy. This argument fails likewise. Αrdеll himself admits that his doctor did not think that he had a sleep disorder.

Αrdеll further asserts that he disagrees with "the reasoning behind [his] September 15, 2005 termination letter." Αrdеll asserts that the reason he was terminated was for driving a company pickup over the plant posted speed limit and that he was already disciplined for this on September 4 with a written and verbal warning from supervisor Michael Chichocki. However, the respondent's September 15, 2005 termination letter was issued to Αrdеll by plant manager Greg Neal, and it is clear from this letter that the respondent concluded that Αrdеll's overall recent behavior warranted the termination of his employment. In addition, Αrdеll challenges the termination letter statement that he did not respond to progressive discipline. He asserts that prior to the alleged Sept 3 vehicle incident, the only thing that he was disciplined for was a sleeping incident on June 6, 2005, and asks how he was supposed to respond to progressive discipline when not given a chance to respond to progressive discipline. Contrary to Αrdеll's assertions, the record shows that he was given a chance to respond to progressive discipline because prior to his termination he had received several coaching sessions, he was issued a written warning on June 9, 2005, for sleeping in the plant and on August 31, 2005, he was notified of further pending disciplinary action for sleeping in the plant again on August 16, 2005.

Αrdеll further asserts that union steward David Daily testified that he was not treated as well as other employees at the plant. Daily's testimony provided no reason to believe that the respondent had discriminated against Αrdеll on the basis of disability, however. Daily admitted that he did not have any indication that Αrdеll was dealing with any undiagnosed mental health issues during 2004 and 2005. Further, with respect to how Αrdеll was treated for sleeping on the job, while Daily asserted that Αrdеll was treated "tougher" than other employees caught sleeping on the job, Daily admitted that he did not know if the other employees had had previous discipline.

Αrdеll also disagrees with the ALJ's conclusion of law that he failed to prove there is probable cause to believe the respondent violated the WFEA by failing to reasonably accommodate a disability. However, it is axiomatic that where a complainant has failed to sustain his burden to prove that he was an individual with a disability within the meaning of the Wisconsin Fair Employment Act, no duty of reasonable accommodation would arise. Schultz v. CNH Capital Corp. (LIRC 05/08/06).

Αrdеll argues, however, that if the ALJ would have granted the hearing postponement request made by his attorney and himself, he would have had sufficient paperwork to show he had a disability in September 2005. The record shows that on April 17, 2007, the ERD received a letter from an attorney dated April 16, 2007, stating that his law office had just been retained by Αrdеll and requesting a postponement of the hearing. The ALJ did not err in denying the hearing postponement request. Αrdеll had had ample time to retain an attorney and prepare for the hearing. On June 7, 2006, the ERD issued a certification to hearing notice to the parties which stated, in part, "If you expect to be represented by an attorney at the hearing, and have not yet retained one, you should do so immediately....At the hearing, you should be ready to offer evidence and testimony to support your case. You or your attorney should arrange to have any witnesses present you feel will help to prove your claim...." On January 3, 2007, the ERD issued notice that a hearing would be held on Αrdеll's complaint of discrimination on April 17, 2005. Furthermore, in a subsequent letter to the parties dated January 17, 2007, the ALJ specifically set forth for the parties what their respective burdens of proof regarding a disability discrimination claim would be, and informed them that they should be prepared to present competent medical evidence concerning the disability issue.

Αrdеll also disagrees with the ALJ's conclusion that he failed to prove probable cause to believe the respondent violated the WFEA by terminating his employment (in February 2005) because of arrest record. In support, Αrdеll argues that the respondent clearly stated to IBEW 965 assistant business manager, Tony Bartels, that his employment was being terminated due to his January 23, 2005, operating after revocation arrest, that the respondent never mentioned any information that plant operations manager Brian Dierkshiede saw him driving on January 23, that the respondent never stated his employment was being terminated due to Dierkshiede witnessing him driving and being in violation of the newly received arbitration decision, and that the paperwork the respondent provided at the hearing showed no evidence that he was being terminated directly due to Dierkshiede's seeing him driving. Αrdеll then concludes, asserting that he was the one who learned through a discovery demand from the State of Wisconsin regarding the operating after revocation charge that it was Dierkshiede that had seen him driving and reported him to the police for not having a valid driver's license, resulting in an officer pulling him over and citing him for operating after revocation.

Αrdеll's argument fails. Indeed, his very admission to discovering that Dierkshiede had seen him driving and reported him to the police for not having a valid driver's license clearly indicates that the reason for his termination was based on his underlying conduct rather than because of an arrest record. Where the information the employer relies on to draw its conclusion that the employee engaged in unacceptable conduct was information independent from that of the arresting authority, the employer does not rely on the employee's arrest record. "Independent" sources of information which an employer may use to form a belief that an employee engaged in an offense of some kind which is also the subject of an employee's arrest include statements to the employer by others who witnessed the conduct. Betters v. Kimberly Area Schools (LIRC, 07/30/04).

cc: Attorney Charles Facktor

Appealed to Circuit Court. Affirmed September 8, 2008. Appealed to the Court of Appeals. Affirmed, unpublished summary decision, April 22, 2009.

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