PATRICIA R BOWDISH, Complainant

COPPS/ROUNDY'S  SUPERMARKETS INC, Respondent

An administrative law judge administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modification:

In the first sentence of the administrative law judge's Decision the phrase "because of her gender" is deleted and the phrase "because of a disability" is substituted therefor.

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

Dated and mailed January 14, 2011
bowdipa . rmd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In her petition for commission review the complainant argues that, although she does not have a disability, the respondent perceived her as being disabled and terminated her employment as a result. The complainant maintains that the respondent refused to reemploy her because she was unable to pass an ergonomics examination and contends that the examination was not shown to be job related or consistent with business necessity.

The complainant's argument fails. While the respondent was clearly aware that the complainant had various work-related injuries for which she was seeking medical treatment, there is no evidence to suggest that the respondent believed the complainant had any impairment that would constitute a permanent disability, within the meaning of the Wisconsin Fair Employment Act. To the contrary, the evidence indicates that the respondent did not know what the complainant's medical condition was and was attempting to find out. The complainant had been off work for an extended period of time and had provided the respondent with contradictory and incomplete medical information.

Moreover, even if the commission were to find that the respondent perceived the complainant as having a disability, the record would not support a conclusion that her discharge was discriminatory. The respondent did not discharge the complainant because she did not pass the ergonomics examination, but because of her refusal to provide it with a requested medical release when it had reason to believe she was falsifying and withholding medical information. The respondent was entitled to request information pertaining to the complainant's ability to safely return to work following her protracted medical leave, and the complainant was aware that her failure to provide that information would cost her her job. Her resulting discharge was not because of a perceived disability, but was caused by the complainant's unwillingness to allow the respondent to review her medical records.

cc:
Attorney Patrick T. Arendt
Attorney Laurie A. Peterson

[Ed. Note: This decision was re-issued in the same form on February 10, 2011]

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uploaded 2011/02/14