JAMES A POLINSKI, Complainant
HYPRO INC, 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:
In the fourth sentence of paragraph 11 of the FINDINGS OF FACT, delete the word "in" the first time it appears.
In the second sentence of paragraph 14 of the FINDINGS OF FACT, change "Prefer" to "Priefer".
Immediately after paragraph 17 of the FINDINGS OF FACT, insert the following:
17a. After October 5, 2012, the complainant received a diagnosis that he had prostate cancer.
17b. At no time during the complainant's employment, including the termination of his employment, did any of the three individuals who participated in his termination form a perception that the complainant had an impairment that made achievement unusually difficult, or that limited the complainant's capacity to work.
The Complainant has not shown that he was an individual with a disability under Wis. Stat. § 111.32(8) at any time relevant to his complaint in this matter.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed October 8, 2015
polinja_rmd . doc : 107 : 5 123.32
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
The most significant revision to the ALJ's decision involves his legal conclusion that the complainant was an individual with a disability as defined in the Wisconsin Fair Employment Act (WFEA). Part of a complainant's burden of proof in a disability discrimination case is to show that he or she is an individual with a disability on the basis of competent evidence, unless the respondent has conceded that issue. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991). Under the WFEA, an individual with a disability is one who:
(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 phrase "makes achievement unusually difficult" is concerned with the question of whether there is a substantial limitation on life's normal functions or a major life activity. The phrase "limits the capacity to work" concerns the effect of an impairment on the ability to perform the particular job in question. La Crosse Police Comm. v. LIRC, 139 Wis. 2d 740, 761-62, 407 N.W.2d 510 (1987).
A complainant's evidence of the existence of a disability under the WFEA must consist of more than a diagnosis. Doepke-Kline v. LIRC, 2005 WI App 209, 287 Wis. 2d 337, 704 N.W.2cd 605. Where, as here, the alleged disability is one that would not be apparent to a layperson, expert opinion must be presented on the existence, nature, extent and permanence of the impairment. Ewing v. Kohl's Department Stores, ERD Case No. 200901395 (LIRC July 22, 2013). The evidence must address how the impairment makes achievement unusually difficult or limits the complainant's capacity to work. Doepke-Kline v. LIRC, supra; Alamilla v. City of Milwaukee, ERD Case No. CR201002749 (LIRC June 28, 2013).
The complainant's medical evidence was insufficient to show that he was disabled under paragraphs (a) or (b) of the above definition. The complainant testified that he was diagnosed with prostate cancer, but he presented no medical evidence of the diagnosis, or of its nature, extent and permanence, and presented no evidence as to how the impairment limited a life function or a major life activity, or limited his capacity to perform his job. His evidence, therefore, fell short of showing that he had a disability under paragraph (a) of Wis. Stat. § 111.32(8). The lack of medical evidence, particularly the lack of medical records showing any history of prostate cancer, also prevented any finding that the complainant was disabled by virtue of having a record of an impairment under paragraph (b) of the statute. Hendon v. Wisconsin Bell, Inc., ERD Case No. CR200902834 (LIRC Nov. 13, 2014).
To be considered disabled under paragraph (c) of the definition, the complainant had to show that someone who influenced the decision to discharge him had a perception that he was disabled. The complainant's evidence on this issue went only as far as asserting that he notified the respondent that his doctors thought he had prostate cancer and wanted to conduct a biopsy. The complainant testified that in late September 2012 he told his supervisor Daniel Drivas and human resources employee Kelly Ferguson that he was going to a medical appointment to have a biopsy, and that his doctors believed he had prostate cancer. Drivas and Ferguson denied that the complainant told them anything of the sort. Whether the complainant imparted this information, then, is a disputed question of fact that depends entirely on the credibility of witnesses. The ALJ made no finding on this question.
Although it would be appropriate for the commission to resolve credibility issues in this probable cause case (Sommerfeldt v. AT&T, ERD Case No. 8950485 (LIRC Oct. 27, 1993)), the commission finds it unnecessary to resolve this issue. The question of an employee's knowledge of the complainant's condition is preliminary to the ultimate question of fact, which is whether the individual responsible for terminating the complainant's employment perceived the complainant to be impaired in the manner required by the statutory definition (i.e., substantially limited in a normal life function or major life activity, or limited in the capacity to do the particular job).(1) Even if it is assumed that the complainant told Drivas or Ferguson that his doctors thought he had prostate cancer, the complainant's evidence fails to show: 1) any reason to believe that Drivas or Ferguson formed a perception that the complainant was impaired in the manner required by the statute; or 2) any reason to believe that plant manager Curtis Priefer, who according to the undisputed evidence was solely responsible for the termination decision, had any knowledge of the complainant's possible prostate cancer, much less a perception that it was disabling. The complainant's evidence therefore failed to show, to a probable cause standard of proof, that the respondent perceived him to be disabled.
Having failed to present sufficient evidence to show that he was an individual with a disability under Wis. Stat. § 111.32(8), the complainant cannot succeed in his attempt to show probable cause to believe that the respondent discriminated against him because of disability.
The ALJ based his decision on the conclusion that the complainant failed to show that the reason the respondent proffered for discharging the complainant, his having produced 38 nonconforming parts on September 28, 2012, after having produced 74 other nonconforming parts in the previous eight or nine months, was a pretext for discrimination. The commission agrees with that conclusion and with the findings of fact made by the ALJ in support of it, and adopts it as an alternative basis for dismissing the complaint.
The commission has substituted this memorandum for the ALJ's memorandum in order to better reflect its reasoning for affirming the decision.
cc:
Attorney Matthew Kurlinski
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(1)( Back ) La Crosse Police Comm. v. LIRC, 139 Wis. 2d 740, 762, 407 N.W.2d 510 (1987) ("...the person alleging that he or she is handicapped under the Act must establish first, an actual or perceived impairment, then, second, that such condition either actually makes or is perceived as making achievement unusually difficult or limits the capacity to work.").
uploaded 2015/11/30