JEFFRY KOSTNER, Complainant

COCHRANE COOPERATIVE
TELEPHONE CO, 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 modification:

Delete the ALJ's MEMORANDUM DECISION.

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

Dated and mailed November 30, 2015

kostnje_rmd . doc : 107 : 5  123.12, 123.22

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

(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 second element of a complainant's case is to show that the respondent discharged the complainant because of the complainant's being an individual with a disability. Id.

This case failed at the first step--the complainant alleged that he fit the statutory definition of being an individual with a disability because the respondent perceived him to be disabled by alcoholism. He denied any actual alcohol impairment, and put on no evidence of a record of alcohol impairment. The ALJ concluded that the complainant had failed to show that the members of the respondent's board of directors, who made the discharge decision, had a perception that he was disabled by alcoholism.

The commission endorses the reasoning on which the ALJ relied, which was that the perception of the board of directors that the complainant regularly left work at 2 p.m. to go to bars and stayed until the bars closed did not amount to a perception that the complainant was disabled by alcoholism. For a person to perceive another as disabled, it is necessary that the person perceive the other to have a condition that would constitute an actual impairment if it did exist, and to perceive that the impairment is serious enough to make achievement unusually difficult or limit the capacity to work. City of La Crosse Police & Fire Commission v. LIRC, 139 Wis. 2d 740, 762-63, 407 N.W.2d 510 (1987). The actual impairment of alcoholism, according to the Wisconsin Supreme Court, is characterized by medically assessed dependence, in effect, a progression to "non-volitional" drinking of alcohol. Proof of an undefined drinking problem is not sufficient to show an actual impairment. Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 403, 273 N.W.2d 206 (1979). In the same way, the perceived impairment of alcoholism requires that a person perceive an individual to have a condition that would constitute medically assessed alcoholism if it did exist; a perception of an undefined drinking problem is not sufficient. Here, the evidence shows a concern by members of the board of directors about the complainant's possible consumption of alcohol on company time, his frequenting bars in the middle of what would normally be considered the work-day, and his staying long hours at bars, but there is no evidence that any board member perceived the complainant to be dependent on alcohol in a clinical sense, or perceived his drinking to be non-volitional. The commission therefore affirms the ALJ's determination that the respondent did not perceive the complainant to be an individual with a disability. Because the complainant failed to meet the first element of his case, it is unnecessary to consider the element of whether the discharge was caused by disability.

In affirming the ALJ, the commission recognizes that the ALJ chose not to base his decision on the commission's decision in Geske v. H.C. Prange Company, ERD Case No. 9102344 (LIRC Dec. 9, 1993), and in particular, the requirement stated in Geske that:

...a complainant can not prove a "perceived" substance abuse problem adequate to meet the statutory test unless there is direct evidence that the agents of respondent alleged to have had the "perception" that there was such a problem, had actually been provided (and accepted) information that what the person was suffering from was medically assessed as non-volitional and thus potentially within the Connecticut General standard for a handicapping substance abuse problem.

Inasmuch as the ALJ did not rely on the above language in Geske, his analysis of Geske, to which his memorandum is devoted, is unnecessary to the decision as affirmed. The commission has therefore deleted it. The commission notes, however, that insofar as Geske might be interpreted to condition a respondent's perception of disability by alcoholism in every case on the respondent's receipt and acceptance of information from a medical source(1) that a complainant was suffering from a condition that was assessed as non-volitional, it would be questionable. A respondent's perception of disability by alcoholism may arise without the receipt and acceptance of information from a medical source, so long as it satisfies the requirements set out in City of La Crosse.

cc: Attorney Jessica Kirchner
    Attorney Thomas Rusboldt

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(1)( Back ) Decisions following Geske have indicated that this is required. See, e.g., Bailey v. St. Michael Hospital, ERD Case No. 199801010 (LIRC June 30, 2000) ("The absence of a definitive report from a doctor or other practitioner explaining the nature of the complainant's condition...is critical in this case."); Ranson v. Milwaukee Center for Independence, ERD Case No. CR200600710 ("The absence of evidence that the respondent had information that Ranson's use of drugs had been medically diagnosed to become non-volitional precludes any basis for concluding that the respondent perceived her as having a disability."). 

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