DENNIS M HAZARD, JR, Complainant
PJ MILWAUKEE LLC, Respondent
An 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.
The decision of the administrative law judge (copy attached) finding no probable cause to believe that the complainant was discriminated against based upon disability is affirmed.
This matter is remanded for a hearing and decision on the question of whether the complainant established probable cause to believe that he was retaliated against because he made a complaint under the Wisconsin Fair Employment Act.
Dated and mailed
February 27, 2015
hazarde_rmd . doc : 164 : 5 722.1
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Hearing #CR201203417
This case presents the question of whether the complainant established probable cause to believe that he was denied a reasonable accommodation or otherwise discriminated against in the terms and conditions of his employment because of a disability, ADHD. The administrative law judge found that no discrimination was established, and the commission fully agrees.
To begin with, the complainant presented insufficient evidence to demonstrate that he, in fact, has ADHD or that, if so, his ADHD amounts to a disability within the meaning of the Wisconsin Fair Employment Act (hereinafter "Act"). Further, although the complainant testified that he told the general manager, and subsequently the general manager's replacement, that he had ADHD, he does not allege that he provided any information to suggest that his ADHD constituted a disability or that he requested any type of accommodation for that condition. The complainant's request that he no longer work as a driver for the respondent was related to the fact that he could not afford to purchase insurance and was not because of any problem or limitation associated with ADHD. Finally, as noted in the administrative law judge's decision, the complainant was well aware that the individuals responsible for job assignments were Rodney Robinson, the operating partner, and Scott Hermanson, the training general manager, and not the general manager. However, the complainant did not approach either of those individuals to request a different job assignment, nor did he inform them that he had ADHD. Under all the facts and circumstances, there is no basis under which a finding of disability discrimination could be made.
In his petition for commission review the complainant argues that he notified "management" of his diagnosis and that management should have made Mr. Robinson and Mr. Hermanson aware of it. The complainant maintains that Robinson and Hermanson clearly stated as much. This argument fails. Although Mr. Hermanson did testify that the general managers are notified that if they are "presented with a situation where someone claims to have a medical condition" they are to notify him and Mr. Robinson immediately--Mr. Robinson offered no testimony on this point--it is not clear that the complainant's mere statement that he had ADHD, without any indication that it affected or was related to his job, was a circumstance that would have warranted a report from the general manager. Further, while the general manager's failure to report the condition to higher management may violate a workplace expectation of the respondent's, such failure is not in and of itself a violation of the Act, which prohibits discriminatory treatment based upon disability and refusal to grant a reasonable accommodation for a disability. The complainant did not request an accommodation for a disability, nor was he subjected to any discriminatory treatment on that basis. His complaint of discrimination based upon disability was, therefore, appropriately dismissed.
Hearing #CR201300064
In his petition for review the complainant argues that, although his attorney submitted a "request for reconsideration" in both of his cases, only one of his two cases was "reopened." The relevant facts necessary to evaluate that claim are as follows:
On November 9, 2012, the complainant filed a complaint (hearing #CR201203417), alleging that he was discriminated against based upon a disability. On January 7, 2013, the complainant filed a second complaint (hearing #CR201300064), alleging that he was subjected to unlawful retaliation by the respondent because he filed the original complaint. On September 17, 2013, an investigator from the Equal Rights Division (hereinafter "Division") issued two separate initial determinations, one pertaining to each hearing number, both of which found no probable cause to believe that discrimination occurred. Both complaints were, therefore, dismissed. The initial determinations indicated that the dismissal of the complaints would become final unless the complainant submitted a written letter of appeal within 30 days of the date of the determination.
On October 10, 2013, within 30 days of the issuance of the initial determinations, the complainant's attorney submitted what she characterized as a "request for reconsideration." (1) The complainant's appeal referenced only hearing #CR20103417, and not hearing #CR201300064. However, it is clear from the arguments raised in the appeal, which specifically address the allegations made in the complainant's retaliation complaint to the effect that he was harassed to withdraw his complaint, that the appeal was meant to cover both the disability and retaliation determinations. Notwithstanding the fact that the complainant clearly intended to file an appeal of both initial determinations, the department set up only a single appeal for hearing #CR20103417, and closed its file in the retaliation case, hearing #CR201300064. The parties were not provided any notification that this occurred.
On January 9, 2014, the Division issued a hearing notice which referenced only hearing #CR20103417 and described the issue for hearing as being whether there was probable cause to believe that the respondent violated the Act by refusing to reasonably accommodate a disability or by discriminating against the complainant in terms or conditions of employment because of disability. The hearing was set to be held on March 25, 2014.
On March 21, 2014, a few days before the hearing, the complainant's attorney notified the administrative law judge that she was no longer representing the complainant and would not be appearing at the hearing. The complainant appeared at the hearing without counsel.
At the beginning of the hearing the administrative law judge asked the complainant to describe the actions the respondent had taken that he claimed to be discriminatory. The complainant made reference to the conduct alleged in his complaint of retaliation. The administrative law judge responded that that issue was not before him. At this point the respondent's attorney stated that she believed both issues were before the administrative law judge. The administrative law judge then stated that he would "go and find out" what had happened with the retaliation case. He later confirmed that the case had been dismissed because there was no appeal filed. No evidence on the issue of retaliation was therefore presented.
The commission believes that the Division erred in dismissing the complainant's retaliation complaint. The complainant clearly intended to file an appeal of the initial determination issued with respect to that complaint. Indeed, even the respondent's attorney understood this to be the case. It is also clear that the complainant, who was no longer represented by counsel, believed he would be able to put in evidence pertaining to his retaliation case at the hearing, and that he never affirmatively waived his right to do so. Under all of the circumstances, the commission concludes that the complainant's retaliation complaint should not have been dismissed and that the complainant is entitled to a hearing on the question of whether he established probable cause to believe that he was retaliated against because he made a complaint under the Act. The commission has, therefore, remanded the matter to the Division so that such hearing may be held.
cc: Attorney Maria Sanders
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