TIM A RAY, Complainant

GORDON TRUCKING, 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:

1. In the third sentence of the second paragraph under the FINDINGS OF FACT, delete the word "complete" and after the words "work history" add "for the years 1998 to 2009 obtained from the Social Security Administration", and change the phrase "previous employee" to "previous employer".

2. Delete the first sentence of the fourth paragraph under the FINDINGS OF FACT, and replace it with: "Hamby submitted Ray's application materials to Hall in Pacific, Washington, but did not include the work history from the Social Security Administration or the wage review form from a previous employer."

3. Delete the administrative law judge's MEMORANDUM OPINION.

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

Dated and mailed June 7, 2013
raytima . rmd : 107 : 5 

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ Robert Glaser, Commissioner

/s/ C. William Jordahl, Commissioner

To be within the class of individuals protected from disability discrimination, a complainant must show that he or she:

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

(b) Has a record of such an impairment; or

(c) Is perceived as having such an impairment.

Wis. Stat. § 111.32(8).

The complainant in this matter did not contend that he had an actual disability, and did not present any medical records in evidence indicating that he had a disability. His contention that he was within the class protected by the Wisconsin Fair Employment Act (WFEA), depended on his ability to show that he was perceived by the respondent as having an impairment that made achievement unusually difficult or limited the capacity to work. Berg (Riegler) v. Franciscan Woods, ERD Case No. 200401658 (LIRC Dec. 19, 2006). To prove a perceived disability, it is necessary to show that the employer perceived the condition to be chronic and severe enough to constitute an actual disabling impairment if it did exist. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis.2d 740, 407 N.W.2d 510 (1987).

Perception of disability

The complainant submitted an application for a truck driver position to a recruiter for the respondent, Jim Hamby, in December 2009. Hamby noted a gap in the complainant's employment from October 2007 to May 2009 and brought it to the complainant's attention. The complainant explained to Hamby that this was when he had back surgery and that his employer at the time, Dedicated Systems, did not return him to work. Hamby had the complainant come to his office and rewrite his employment history on the application form in order to include an entry accounting for the gap in his employment. In this meeting, Hamby did not show any negative reaction to the fact that the complainant had back surgery. ⁽²⁾   In fact, the complainant's impression at the time was that Hamby did not seem concerned about his back surgery. According to the complainant, Hamby asked him how else his health was, and the complainant showed him a scar on his abdomen from bowel obstruction surgery. At the time, the complainant did not think this was an issue for Hamby either. The complainant told Hamby that when he worked at his most recent job, for Schneider National, he was required to have a medical exam and a certificate, known as a DOT medical card, indicating that he was physically able to drive a truck in interstate commerce. He told Hamby that he passed the physical, and showed Hamby his DOT medical card. Normally, where an employee has been released to work without restriction by a physician, there is no reason to conclude that the employer perceived the employee to be disabled. Cramer v. Woodman's Food Mkt, ERD Case No. 200301553 (LIRC Jan. 14, 2005). Hamby did not make any comment to the complainant indicating that he doubted the accuracy of the complainant's medical card, and he accepted the complainant's application. At least in terms of any direct evidence from the complainant concerning Hamby's interactions with him, the evidence is insufficient to show that Hamby perceived the complainant to have the kind of impairment that would meet the definition of disability under the WFEA. The balance of the complainant's evidence that Hamby perceived him to be disabled has to do with how Hamby purportedly handled his application materials, and is considered below under causation.

Causation

The complainant's central argument is: (1) that Hamby purposely discarded or withheld two documents that the complainant had given to Hamby to supplement his application-his positive evaluation form from a prior employer (Ex. C-1) and his list of prior employers from the Social Security Administration (Ex. C-3);  ⁽³⁾   (2) that Hamby discarded/withheld the documents in order to scuttle the complainant's attempt to get hired because he perceived the complainant to be disabled; and (3) that the omission of the documents had the effect of denying the complainant a job for the respondent.

A. Purposeful discriminatory act

The ALJ found that the complainant gave the two documents to Hamby when he applied. (Finding of Fact No. 2). The evidence also supports a finding that the two documents were not sent to the respondent's Washington office (Jeremy Hall, in the Washington office, knew nothing about them). The commission has changed Finding of Fact No. 4 to reflect this. The proposition that the documents were purposely withheld to harm the complainant's job prospects, however, is not supported by the evidence.

Hamby's job was to make sure applicants completed the necessary application documents, and to send the application materials to the respondent's office in the state of Washington. The necessary documents consisted of: (1) an application form requesting, among other things, 10 years of employment history and three years of traffic convictions; (2) a job analysis form, which included a description of the job, a notice that the position required a medical examiner's certificate for drivers in interstate commerce, and a question as to whether the applicant had a current DOT medical card; and (3) two authorizations for release of information, one specifically for information from previous employers, and one for work records, drug and alcohol test results, and consumer reports, including motor vehicle records. Hamby obtained these documents from the complainant. (Ex. R-1, R-2, R-3, R-4).

He also received, unsolicited, the complainant's social security list and positive evaluation from Diversified. Hamby's failure to send these documents to the Washington office could plausibly have been inadvertent, or at least non-discriminatory. There was no evidence about what happened to the documents. Although Hall, in the Washington office, indicated that he would have considered supplemental documents from applicants, there was no evidence about whether it was Hamby's ordinary practice to send supplemental application documents to the Washington office. Hamby's failure to send the documents to Washington may have been consistent with his normal practice, and not disparate treatment of the complainant.

Furthermore, even if Hamby's failure to send the social security list to Washington were intentional, it was not shown to be motivated by discriminatory animus. The list was essentially duplicated by the list of previous employers that the complainant wrote on his application form (Ex. R-2). The main difference was that the social security list did not provide periods of employment for each employer; it provided information about compensation from each employer in a given year. The complainant wanted Hamby to have the social security list, even though it duplicated the list on his application, because it provided an independent verification that he had worked for the employers listed. He had been advised that this was a good idea in the event a former employer had gone out of business and could not provide direct verification of the complainant's employment. The evidence did not show, however, that Hamby appreciated the value of having the social security list; there is no evidence of a conversation the complainant had with Hamby in which the complainant described what purpose the list served, or named any particular former employers that had gone out of business and could no longer be contacted for verification of employment. It was not proven that Hamby understood he would be doing any harm to the complainant's job prospects by not sending the social security list to the Washington office. It is plausible that he believed that, with the list of employers in the application, the Washington office had the means to obtain an accurate work history for the complainant, without the social security document. The evidence was insufficient to show that Hamby's failure to send the supplemental documents to Washington was more likely caused by discriminatory animus than by simple inadvertence or a non-discriminatory misunderstanding.

B. Causative chain

Hamby did not have authority to make a decision or a recommendation about whether to hire the complainant, and did not do so. The decision was made by Hall, in Washington, who had no personal knowledge of the complainant, and based his decision entirely on the application materials. There was no substantial evidence that Hall perceived the complainant to be disabled. ⁽⁴⁾   Because Hamby, the person accused of perceiving the complainant to be disabled, was not the decision-maker, the complainant must prove not only that Hamby's adverse act of discarding or withholding the documents was motivated by discriminatory animus, but also that his act caused the decision-maker, who had no perception that the complainant was disabled, to deny the complainant's application. Essentially, the complainant had to prove that Hall's not having the complainant's two supplemental documents was critical to his not getting hired. ⁽⁵⁾

Hamby sent Ex. R-1, R-2, R-3 and R-4 to the respondent's driver recruiting office in Pacific, Washington. There, based on the authorization forms signed by the complainant, the respondent requested results from drug or alcohol testing, work histories from prior employers, and driving record information. The respondent received employment records from Swift Transportation, Timothy J. Kennedy, Inc.  ⁽⁶⁾  and Schneider National. These were received through an agency with which the respondent contracted to retrieve this information, known as DAC. The respondent also received some verification of the complainant's employment with Dedicated Systems. (See Ex. R-6). It is not known why other purported employers did not respond to requests for information. Based on the responses to requests for employment verification, Hall counted 38 months of employment, from Schneider, Dedicated Systems, and Swift. He entered this information on a worksheet. (Ex. R-6). The complainant argues that if Hall had had the social security list, he would have been able to verify eight years of employment.

First, however, the social security list did not clearly document eight years of employment. As noted above, it did not supply dates of employment for each employer; it simply stated what employers compensated the complainant in a given year. In some cases, the compensation totals suggest a brief period of employment. More importantly, the length of verified employment was not the critical factor that caused Hall to deny the complainant's application.

Hall decided on his own to deny the complainant's application based on Ex. R-1 through R-5, without any consultation with Hamby. He indicated on Ex. R-6 that his reason for denying the application was "over all." Hall's denial was based on the record he received from Schneider National stating that the complainant had quit his employment in November 2009 by not showing up for work, a company policy violation, and on the driving record information that in April 2006 he received a ticket for driving between 15 and 19 miles per hour over the speed limit. ⁽⁷⁾   (Ex. R-5). Hall testified that these factors made his application less than acceptable compared to the applications of the successful applicants. No evidence was presented to show that Hall's reasons were not genuine. Hall's decision was not influenced by any perception that the complainant was disabled, and therefore was not caused by disability.

The complainant testified that he submitted a second resume to Hamby in February 2010 that made no mention of the fact that he had had back surgery. Hamby called the complainant, at first not remembering his prior application. During the telephone conversation Hamby recalled that the complainant had applied about two months prior, and checked on the disposition of the previous application. He then told the complainant he had already been denied employment. The complainant asked why and Hamby replied "everything." The complainant pressed for more detail and Hamby brought up the two-year gap in the complainant's employment. The complainant mentioned that he had had surgery. Hamby, apparently now remembering more about the complainant, asked if it was back surgery. Then he asked if the complainant was incapacitated. The complainant responded angrily and Hamby repeated that he had already been denied employment. It was not shown that Hamby's refusal to process the complainant's second application within two months of the denial of his first application was disparate treatment based on disability.

Additional issues

The complainant requested that the commission order witness Hamby to take a lie detector test. The commission has no authority to do so. The complainant requested that his petition be considered a complaint against the ALJ. The commission's authority is to review the findings and conclusions of the ALJ, and review the way in which the ALJ conducted the hearing. The commission has reviewed the record and is satisfied that the ALJ provided a fair opportunity to the complainant to present his evidence, and with the modifications noted above, the commission is in agreement with the ALJ's findings of fact and conclusions of law. The commission has deleted the ALJ's Memorandum Opinion and replaced it with its own in order to clarify why the findings of fact support the conclusion that the complainant did not prove by a preponderance of the evidence that the employer discriminated against him in hiring because of disability.

The complainant raised a procedural issue that deserves an explanation. He claimed that the ERD should have provided him with a transcript of the hearing, and that he made a request for a transcript from the ERD and never received one. The ERD does not produce transcripts of hearings. It records them, and provides a CD recording to the parties upon their request and payment of a small fee. The ALJ's statement in his decision, that a transcript of the proceedings has not been prepared, was true. No transcript had been prepared by the time the ALJ wrote his decision.

Upon appeal to the commission, the ERD prepares a summary of the testimony from the recording UNLESS certain things occur, one of which is when a party requests in writing that a transcript be prepared at its own expense and provided to the parties. This was explained in a letter to the parties from the ERD dated January 11, 2012. The respondent in this case hired a reporting company to produce a transcript at its own cost, and provided a copy to the complainant. The ERD followed its normal procedure with respect to the transcript in this case.

cc: Attorney Steven DeVougas

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(1)( Back ) The exception relates to a situation in which the complainant's disability is reasonably related to his or her ability to adequately undertake the job-related responsibilities of the employment.

(2)( Back ) Compare, Huber v. The Meat Market, ERD Case No. 200203900 (LIRC July 16, 2004), in which the employer, during a job interview, became flustered when the job applicant brought up the fact that she had breast cancer, and abruptly ended the job interview.

(3)( Back ) The document marked in evidence as Ex. C-3 was only two pages. It is obvious, from comparing it to Ex. 2 entered into evidence at the probable cause hearing in this matter, that Ex. C-3 should be a three-page document, and that the exhibit that was marked at the hearing on the merits was missing page 2. For purposes of this review, it is assumed that Ex. C-3 includes the missing page. It is not necessary to remand the case for the missing page to be added to the exhibit, because the inclusion of the missing page does not change the outcome.

(4)( Back ) Hall knew nothing about the complainant's physical condition other than what was in Ex. R-1 through R-5 (that he was off work from 10/07 to 05/09 due to back surgery, and that he had a current DOT medical card). This is not a sufficient basis to conclude that he perceived the complainant to be disabled. See, Cramer v. Woodman's Food Mkt, ERD Case No. 200301553 (LIRC Jan. 14, 2005).

(5)( Back ) This is known as the "cat's paw" analysis, described by the commission in Haecker Jr. v. Carter Steel, ERD Case No. 200002629 (LIRC Jan. 28, 2003): Complainant argues further that it is appropriate to apply the analysis adopted by the Seventh Circuit Court of Appeals in Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990) to this case. In Shager, the court articulated the "cat's paw" analysis that allows the finder of fact to impute a discriminatory motive to the unbiased decision maker who is decisively influenced by an employee who is prejudiced against the complainant.

(6)( Back ) This employer was not listed on either the complainant's list or the list from the Social Security Administration.

(7)( Back ) Although the application form requests information concerning traffic convictions within the last three years, Hall testified without dispute that the respondent considers the complete driving records of applicants.

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