ELMER LIENHARDT, Complainant

PACON CORPORATION, Respondent A

and

FRANK BOWERS, President
AFL-CIO, Local 1822, UPIU,  Respondent B

On July 8, 1974, Complainant, Elmer Lienhardt, filed a complaint with the Equal Rights Division of the Department of Industry, Labor and Human Relations alleging that the Respondents, Pacon Corporation, and Frank Bowers, President, AFL-CIO, Local 1822 had discriminated against him on the basis of handicap and sex in regard to conditions of employment in violation of Sections 111.31- 111.37, Wis. Stats. (1971). After investigation by the Department, an Initial Determination of no probable cause was issued. The Complainant filed a timely request for hearing. Pursuant to notice, hearing was held on June 9, 1975, before J. Borkenhagen, a duly authorized Hearing Examiner for the Department.

The examiner issued her recommended decision on July 31, 1975 and Complainant took exception thereto.. After a review of the record herein, the Commission of the Department issues the following:

This matter is presently before us on a review of the examiner's recommendation that no probable cause exists to believe that Respondent Pacon Corporation discriminated against Complainant on the basis of a handicap and on the basis of his sex.

On October 1, 1973, Complainant suffered a heart attack He had been employed by Respondent for a period of sixteen years prior to his heart attack. Complainant received disability benefits from October 8, 1973 to October 26, 1973. On October 24, 1973, Complainant's physician indicated that he could return to work "on or about October 29, 1973. (Complainant's Exhibit C). On November 6, 1973, Complainant's physician indicated that he could return to "light work." (Respondent's Exhibit A). Complainant testified that his physician orally advised him on November 6, l973 that he should use his (Complainant's) own discretion in returning to work. (Summary page 2). In a memorandum dated December 3, 1973, Respondent's personnel manager advised Complainant that he was discharged for unexcused absence. (Respondent's Exhibit 2). On December 5, 1973, Complainant's physician indicated he could return to work on December 10, 1973. (Complainant's Exhibit A). Finally on December 14, 1973, the doctor issued a statement that Complainant had "used his own discretion in returning to work." (Complainant's Exhibit B).

As a result of a grievance filed with the union, Complainant was rehired by Respondent company on December 17, 1973 as a new employe, with a total loss of seniority and accumulated benefits. Complainant testified that he called in each Monday of the week in which he was unable to work. (Summary page 2). This was not disputed by Respondent.. (Summary page 3).

The purpose of the hearing provided under Ind 88.035 is to determine if probable cause exists to believe that the alleged discrimination occurred. Complainants are permitted to present their case before a quasi-judicial officer and receive a more exacting scrutiny of the evidence than would otherwise be available in the normal investigative process. The burden of proof that the Complainant must meet is to demonstrate probable cause that discrimination occurred. Complainant is not held to the same standard which applies in a full hearing on the merits. The responsibility of the Department is "not to weigh the credibility of the witnesses, but rather merely to determine whether Complainant's evidence is believable."  Marshall v. Industrial Commission 1 E.P.D. para 9772 (Dane Co.. Cir. Ct. 1967). We believe that the Complainant has failed to establish probable cause to believe that he was unlawfully discriminated against, because of a handicap, in violation of the Wisconsin Fair Employment Act, Wis. Stat. 111.31 et. seq.

In regard to Complainant's handicap discrimination claim, it is undisputed that Complainant suffered from a heart condition and this is sufficient to conclude that he was handicapped. The series of medical statements introduced at the hearing are at best confusing. They do, however, give rise to an inference that Complainant was testifying truthfully when he stated that the physician advised that he use his own discretion in returning to work. In his initial report, the doctor predicted a return date of five days hence. (Complainant's Exhibit C). In a subsequent report on December 5, a projected return date of December 10 was given. (Complainant's Exhibit B). One can infer that Complainant was not ready to return to work prior to December 10 and that the original estimate was incorrect. Complainant also testified that the doctor told him he was unable to return before December 10. (Summary page 2). Viewing the evidence in a light most favorable to Complainant, it is clear that he was unable to work on December 3, 1973, the date of his discharge Wis. Stat. 111.32(5)(f) provides in part that "the prohibition against discrimination because of handicap does not apply to failure of an employer to retain as an employe any person who because of a handicap is physically or otherwise unable to efficiently perform, at the standards set by the employer, the duties required in that job"

As of the date of the discharge, Complainant was unable, by his own testimony, to perform the job in question. While an unfair result may insue, the Fair Employment Act does not require retention of injured employes who are unable to work.

We do believe, however, that Complainant has established probable cause to believe that he was discriminated against based upon his sex. Complainant's claim is simply that a woman, similarly situated, received different treatment. The record reveals that one Peggy Schoerning was discharged while out of work as a result of an industrial accident. She was reinstated without loss of benefits after providing a medical slip indicating she could return to work. (Respondent's Exhibit C). The slip is substantially similar to Complainant's Exhibit A which indicated that Complainant could return to work on December 10. Both excuses were submitted after the discharges. Additionally, a witness for Respondent testified that Schoerning received disability benefits for the entire period of her absence. The examiner concluded that that additional factor distinguished the two cases. We cannot agree. Nothing was introduced into evidence indicating the terms or coverage of the disability policy. Nothing was introduced with regard to the company work rules as they relate to disability related absence. No questions were posed as to why Complainant did not receive additional disability leave. It may well be that Complainant neglected to file for or otherwise claim benefits. The record in this case raises many questions and we believe that a full hearing on the merits in the event of a conciliation failure may provide more meaningful detail. Based upon the information available, we believe Complainant has established probable cause to believe that he was discriminated against based upon his sex. Accordingly we enter the following:

That the complaint of Elmer Leinhardt against Respondent Local 1822, UPIU be and the same is hereby dismissed.

That probable cause exists to believe that Complainant Elmer Lienhardt was discriminated against by Respondent Pacon Corporation based upon his sex in violation of the Wisconsin Fair Employment Act and that the matter be remanded to the Bureau of Conciliation of the Equal Rights Division for further proceedings.

That the complaint of Elmer Leinhardt against Respondent Pacon Corporation to the extent that it alleges handicap discrimination be and the same is hereby dismissed.

Dated at Madison, Wisconsin  January 21, 1976

/s/ Virginia B. Hart, Commissioner

/s/ John C. Zinos, Commissioner

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