State of Wisconsin

Labor and Industry Review Commission

Brian L. Mueller, Complainant 7621 W. Lorraine Place, Apt. 5 Milwaukee, WI  53222	Fair Employment Decision[1]
Pomp’s Tire Service, Inc., Respondent Corp. Office - HR Department, 1123 Cedar Street Green Bay, WI  54305
	Dated and Mailed:
ERD Case No. CR201502786	December 21, 2018
EEOC Case No. 26G201600071C	muellbr_rsd.doc:164

The decision of the administrative law judge (copy attached) is affirmed.  Accordingly, the complainant’s complaint is dismissed.

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent discriminated against him based upon his age and disability, in violation of the Wisconsin Fair Employment Act (hereinafter “Act”).  An administrative law judge for the Equal Rights Division of the Department of Workforce Development held a hearing and issued a decision dismissing the complainant’s complaint.  The complainant filed a timely petition for the commission review.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted at the hearing.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusions in that decision as its own.

Memorandum Opinion

In his petition for commission review the complainant argues that a qualified medical doctor furnished a letter which the respondent received prior to the complainant’s separation indicating that he was physically qualified to be a commercial truck driver, but that he had arthritis and other age-related medical issues that would prevent him from working a 5-day week.  The complainant states that he has 3 letters from doctors, all indicating that he must remain working part time, 3 days per week, and asks who the respondent is to dispute the facts of his medical condition.  This commission has considered the complainant’s argument, but does not find it persuasive.  The complainant showed the respondent only one doctor’s letter prior to his discharge.[2]  The letter the complainant provided to the respondent indicated that he could work part time, but did not specify that he needed to work a 3-day a week schedule.  Although, prior to receiving the complainant’s doctor’s letter, the respondent changed the complainant from a 3-day a week work schedule to a 5-day a week work schedule, the complainant’s hours were not increased as a result of this schedule change and he remained a part-time employee.  Thus, nothing in the doctor’s letter submitted by the complainant suggested that there were new work restrictions that needed to be considered.  Nor did the complainant verbally advise the respondent that he was medically unable to work 5 days a week.  To the contrary, the complainant worked a 5-day schedule for several weeks prior to his separation without ever notifying the respondent this was causing a problem for him.  While, on his last day of work, the complainant did tell the respondent that he was not going to work 5 days a week, the respondent had no reason to believe that this was related to a disability or that the complainant was requesting an accommodation.  Given all the circumstances, it does not appear that the respondent second guessed the complainant’s doctor’s restrictions, as the complainant indicates was the case.  Rather, the evidence indicates that the respondent was not notified the complainant was medically restricted to working only a 3-day week.  It cannot be found that the respondent violated the Act by failing to offer an accommodation that it was unaware the complainant required.

In his petition the complainant also indicates that he was hired to work 3 days a week and that the employer changed his contract of hire when it moved him to a 5-day work schedule.  However, the issue presented in this case is whether the respondent discriminated against the complainant based upon his age or disability.  Even if it could be shown that the respondent violated an employment contract with the complainant by changing his schedule--and the commission makes no finding on this point--absent any reason to believe that it did so because of the complainant’s protected status, its actions would not constitute a violation of the Act.

NOTE:     At the hearing the administrative law judge indicated that the complainant was required to present certified medical records in order to establish what his medical condition was.  However, the Act is not limited by either statutory or common law rules of evidence, and neither the department’s administrative rules nor chapter 227 require certified copies of medical records.  See, Rutherford v. LIRC and Wackenhut Corporation, 2008 WI APP 66, 309 Wis. 2d 498, 510-512, 752 N.W.2d 897 (Ct. App. 2008)(by requiring certified medical evidence the administrative law judge imposed a requirement beyond what is found in either the applicable statutes or administrative rules).  This error had no effect on the decision, however, since the uncertified document at issue was excluded for other legitimate reasons (the complainant’s failure to disclose it on an exhibit list submitted 10 days prior to the hearing) and because, whether or not the complainant established that he had a disability, the fact remains that he failed to demonstrate he either required or requested an accommodation.

cc:       Anne M. Carroll

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[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision.  If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] While the complainant’s petition references three doctor’s letters, only two letters were introduced at the hearing, one dated August 18, 2015, and one dated February 19, 2017.  (The latter was not identified in a pre-hearing exhibit list and was not admitted into the record, pursuant to Wis. Admin. Code § DWD 218.17.)