Wis.LIRC ER Decision: Geske - December 9, 1993 - Procedure - evidence - ALJ may refuse letter from respondent's representative to investigator explaining why challenged action was taken where that representative does not testify; Initial Determination should not be received because merely hearsay reflecting conclusions of investigator following ex parte investigation; expert medical evidence necessary to establish alcoholism, drinking must be "non-volitional" for drinking problem to be a handicap

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

ELIZABETH GESKE, Complainant

H. C. PRANGE CO., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9102344

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on January 21, 1993. Complainant filed a timely petition for review by the commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

ORDER

The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed December 9, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

In her petition for review, complainant has very expressly raised only four claims:

1) That the ALJ erred in failing to receive into evidence the investigator's Initial determination;

2) That the ALJ erred in failing to receive into evidence the "Answer" of respondent;

3) That the ALJ erred in concluding that the complainant failed to establish that she had a handicap; and

4) That the ALJ erred in finding that respondent's agent's did not consider complainant to be an alcoholic.

The commission has considered these claims carefully but has found them unpersuasive.

Failure to receive the "Answer" -- The document at issue here is a letter sent to the ERD investigator by respondent's Manager of Associate Relations and Compensation. The letter asserted that Geske was not rehired when she applied for her old job back because it was discovered that she had falsified information on her job application. At hearing, this manager did not testify. However, respondent's regional loss prevention manager, who in fact made the decision on hiring, testified that he considered the person hired to be the best candidate, and he denied having told the manager who wrote the letter that the falsification of the application was a reason for the decision. Geske sought to rely on the letter as an admission . The ALJ's rationale for refusing to accept the document had to do with the fact that it had not been disclosed as a potential exhibit prior to the hearing consistent with the ERD's rules.

Even if the document had been received as an exhibit, it would not have been a binding admission, in that it was not made in a formal discovery process. It would merely have been some evidence as to the reason for the challenged action. The more persuasive evidence, coming from a "live" witness as opposed to a hearsay document, and coming from the person who actually made the decision, was the regional loss prevention manager's testimony that (although he became aware of the pending charge and of the fact that it was not disclosed on the application) he believed the hired candidate to have the better qualifications. This testimony is credited by the commission. Additionally, it is not necessarily error for an ALJ to refuse to receive a letter from a representative of the respondent to the investigator explaining why some challenged action was taken where that representative does not testify; see, Tassotti v. LIRC (Kenosha Co. Cir. Ct., February 23,1988).

Failure to receive the Initial Determination -- Geske offered the ID in an effort to rely on a statement therein, to the effect that it was not disputed that Geske's handicap was a factor in her termination. The ALJ reasoned, that since the purpose in offering the statement was to prove that Geske was handicapped, and since proof that the complainant is handicapped is required to be made as part of a complainant's case in chief, the complainant could not assert that it was legitimate rebuttal, i.e., something the need for which could not be reasonably anticipated prior to hearing. Thus, exclusion was premised on non-compliance with the pre-hearing exhibit disclosure rule. In the commission's view, this was a valid rationale for exclusion here. In addition, it has also been held that the ID should not be received as evidence at hearing because it is merely a hearsay document reflecting the conclusions of the investigator following an ex parte investigation; Henchen v. County of Vernon (LIRC, September 5, 1991). It is not clear how the investigator arrived at the conclusion that it was undisputed that there was a handicap and that it was a factor in the termination -- there does not seem to have been a direct admission of this. Under all of these circumstances, it is certainly appropriate to decline to take these important issues as being somehow foreclosed by a hearsay assertion of doubtful provenance which is arguably excluded on other grounds as well.

Failure to find that Geske was handicapped -- As the ALJ correctly noted in his Memorandum Opinion, expert medical evidence was necessary to establish that complainant in fact suffered from the handicap of alcoholism. She failed to offer any such evidence. Although she has not submitted any argument to the commission, her theory can be discerned from her brief to the ALJ. She claimed that her handicap was proved by Resp. Ex. 3 ( a letter from a psychiatrist to Prange's indicating that she was being admitted to inpatient AODA treatment), by the evidence that she was perceived as handicapped, and by her involuntary commitment.

The letter from the psychiatrist is inadequate, since it contains no indication of diagnosis, but merely notice as to a plan of treatment. The commission does not believe that the arguable implication that a diagnosis of alcoholism preceded this treatment, is adequately direct proof.

The contention that she was perceived as handicapped is discussed below.

The third basis on which proof of "handicap-in-fact" is claimed involves the statutory involuntary commitment procedure. Under sec. 51.45 (13), Stats., a person may be involuntarily committed to the custody of a county social services department upon proof by clear and convincing evidence that, among other things, the person habitually lacks self-control as to the use of alcohol and uses alcohol to the extent that health is substantially impaired or endangered and social or economic functioning is substantially disrupted. Geske's argument is that, since a court may not order commitment unless allegations to this effect are proved by clear and convincing evidence, the fact that a court has issued a commitment order establishes conclusively that the necessary conditions must have existed. The commission is unpersuaded by this argument on the facts of this case. For one thing, Prange's was of course not a party to the commitment proceeding and this is a reason not to treat it as bound by it. But additionally, the commitment order discloses that the allegations of the petition were stipulated to rather than having been proven by evidence offered in a hearing. The fact that a third party (whoever was prosecuting the commitment action) was willing to stipulate that Geske was an alcoholic, hardly serves as an adequate substitute for competent expert proof that she was. Thus the commission concludes that the ALJ did not err in finding that Geske was not handicapped in fact.

Failure to find that Geske was perceived as alcoholic -- This case exemplifies the difficulty of applying the "perceived handicap" theory in substance abuse cases. The three witnesses who testified for the respondent all gave indications of having learned something about Geske having "problems" with alcohol or cocaine or both, and about her having received treatment, but it is clear that the information they received was spotty. No agent of the respondent ever received any kind of definitive report from a health professional about the nature of Geske's "problem". The significance of this lies in the unique nature of substance abuse "handicap". A "drinking problem", for example, may or may not be a handicap, depending on whether it has progressed to the stage that it is "non-volitional". See, Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 408, 273 N. W. 2d 206 (1979). Apart from this inherently subjective point -- a point which must be passed on by a medical expert, Id. at 407 -- the nature of the problem as it appears to laypersons witnessing it may be the same in both cases. So while it may be conceded that the evidence here seems to show that respondent's agents perceived Geske as having a substance abuse "problem", there is no clear evidence as to whether their perceptions extended to the necessary level of diagnosis. Basically, 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. Here, no such information was apparently provided to respondent's agents, so there is no basis for concluding that they formed such a perception.

Thus, the commission finds no merit in the only points of alleged error raised by Geske. The findings of fact made by the ALJ, unchallenged by Geske except as noted above, are supported by the record. The commission also agree with his rationale, as summarized in his Memorandum Opinion. Geske failed to prove "handicap-in-fact" because she had no competent, expert evidence that she was suffering from a medically diagnosed substance abuse problem as required by Connecticut General. She could thus prevail only if she demonstrated both that she was perceived as handicapped, and that this perception was the reason for the challenged actions. She failed to prove that she was perceived as suffering from a handicapping substance abuse problem. For these reasons, the commission affirms.

110 / a

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2001/02/21