NATHAN S SMITH, Complainant

MAIL CONTRACTORS OF AMERICA, 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, except that it makes the following modifications:

The word "PROBABLE" is deleted from the heading on the top of page 2.

In numbered paragraph 12. on page 3 of the decision, "2003" is changed to "2004."

Numbered paragraph 3. of the CONCLUSIONS OF LAW section on page 6 of the decision, is deleted.

Numbered paragraph 4. of the CONCLUSIONS OF LAW section on page 6 of the decision if renumbered "3."

The word "Probable" is deleted from the final sentence on page 6 of the decision.

The fourth paragraph of the MEMORANDUM OPINION section is deleted and the following substituted:

The record establishes that Smith would have had to pay for the specialists to whom he was referred by Dr. Cantagello. Although Smith may have been justified in believing this was unfair, he failed to show that it was discriminatory, i.e., he failed to show that MCA treated others differently, or was not reasonably justified in accepting Dr. Cantagello's opinion in this regard.

 

The disability Smith claims is "colon operation." However, the record shows that Smith's colon condition was a temporary one, which would not support a finding that he was disabled under the Wisconsin Fair Employment Act (WFEA). Erickson v. LIRC and Quad Graphics, Inc., 2005 WI App 208, ¶ 16, 704 N.W.2d 398 (for a claim of disability discrimination to be actionable under the WFEA, a disability must be permanent). Smith does not claim as disabilities here his diabetes or hepatitis.

Smith alleges that respondent MCA discriminated against him on the basis of race (Native American) and age when he was not returned to work between February 2004 when he was released by his colon surgeon and July 2005 when he was separated from MCA, and when he was not hired by MCA for a vacant driver position in August 2005.

The record shows that it was respondent MCA's consistent practice to require casual drivers who had been on a medical leave, like Smith, to be medically re-certified by a physician in one of MCA's designated clinics in order to return to work. The record also shows that Smith failed to obtain such re-certification. His medical clearances by physicians at the Oneida Community Health Center and the Veterans Service Clinic did not constitute re-certification by an MCA-designated clinic, and MCA was reasonably justified in refusing to accept these clearances in lieu of such re-certification. Moreover, Smith failed to show that MCA had ever made an exception to this re-certification requirement for similarly situated drivers who were younger than Smith or not Native American. Smith also failed to show that MCA had not been reasonably justified in accepting Dr. Cantagello's medical opinion, or had ignored such opinions in regard to other drivers.

MCA did not hire Smith, or Danforth, another Native American, for one of two vacant driver positions in August 2005. However, the record does not show that either Smith or Danforth filed applications for such positions.

Smith argues in his appeal to the commission that the ALJ relied upon hearsay evidence in reaching his decision.

It should first be noted that, pursuant to Wis. Stat. § 227.45, neither the Equal Rights Division nor the commission are bound by common law or statutory rules of evidence, including the hearsay rule.

Moreover, as relevant to Smith's particular objections, Dr. Cantagello's medical correspondence and records were not offered to prove the validity of her medical opinion, but instead to prove that this was the information she provided to MCA, which Smith does not dispute. See, Kleinsteiber v. Eaton Corp., ERD Case No. CR200103841 (LIRC March 15, 2004)(commission has frequently considered evidence, consisting of an employer's testimony about statements made to them by a third-party declarant, not to prove the truth of the matter asserted by the declarant but as evidence of what the employer believed and thus what motivated them in making a challenged decision); Voelz v. Kimberly-Clark, ERD Case No. 199403271 (LIRC June 6, 1997) (testimony regarding statements by declarants to employer not hearsay when offered only to show how it influenced the employer's beliefs as to what had happened, not to prove the truth of the matter asserted).

In addition, the contents of Smith's personnel file were offered to establish that Smith was on medical leave beginning in December of 2002, was not permitted to return to work after this leave until he had obtained re-certification from an MCA-designated clinic, failed to obtain such re-certification because he did not follow through with referrals to a neurologist and psychiatrist, and was not returned to work as a result. Smith does not dispute any of these facts.

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

Dated and mailed February 15, 2008
smithna . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Attorney P. Delanna Padilla

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