Wis.LIRC ER Decision: Dodson - April 23, 2001 - Procedure - probable cause - dismissal of complaint at hearing on employer's motion after complainant rests - findings of fact by ALJ unsupported, so matter remanded - absent evidence of respondent's reasons for firing complainant, cannot be concluded there is no probable cause; Procedure - amendment of complaint - request to amend disability discrimination complaint to add claimed disabilities, deemed waived and denied when first raised only at commission level

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DONNA L. DODSON, Complainant

MILWAUKEE WIRE PRODUCTS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199900290, EEOC Case No. 26G990578

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-captioned matter on August 11, 2000, dismissing the complainant's complaint of alleged race and disability discrimination. 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 presented at the hearing. For reasons stated in the attached memorandum opinion, the Labor and Industry Review Commission has determined that the decision of the ALJ must be set aside and this matter remanded for further proceedings and a new decision. The commission therefore issues the following:

ORDER

The administrative law judge's August 11, 2000 decision issued in this matter is set aside, and this matter is remanded to the division for further proceedings and a new decision.

Dated and mailed April 23, 2001
dodsodo . rpr : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

During the latter part of 1998, the complainant, Donna Dodson, was employed by a temporary staffing agency and assigned to work for the respondent, Milwaukee Wire Products. Dodson is a white female.

Dodson worked as a general helper at Milwaukee Wire Products. According to Dodson, while at work on November 16, 1998, she accidentally bumped a coworker with a box, and was then struck in the back twice by another coworker, a black female. Dodson continued working after this incident for the remainder of her shift and then went to a hospital, where a physician examined her. The physician prescribed Ibuprofen for Dodson and released her to return to work on November 18, 1998, without any limitations. Dodson did not work on November 17, 1998. However, Dodson states that she went to the respondent that day and talked to her supervisor, Scott Berget, for two hours about the November 16 incident and how she was feeling. Dodson states that Berget told her that he would put her on light duty for a while, that he gave her the name of his chiropractor and that he said he would find out what happened on November 16. Dodson visited a medical clinic on November 17 and was seen by another physician who also recommended that she return to work on November 18 without any limitations.

Dodson worked her entire shift on November 18, 1998. She states that Berget placed her on light duty that day. Dodson admits that she never presented Berget with any medical documentation indicating that she required any accommodation to do her job.

Dodson states that on November 19, 1998, she was notified by phone not to come to work, and that this ended her employment at the respondent. (The record does not disclose whether it was the respondent or the temporary staffing agency that notified Dodson not to come to work.) Dodson states that she was not given a reason for being let go.

On January 26, 1999, Dodson filed a complaint alleging race and disability discrimination. Dodson alleged that two days after being struck in the back, she was discharged while the black person was not. Dodson alleged that she incurred disc damage and muscle spasms as a result of being struck in the back, and that her supervisor was going to put her on light duty but that did not occur.

An initial determination was issued finding no probable cause to believe that the respondent had violated the Act by "terminating the employment of the complainant because of race or disability."

Dodson filed an appeal of the no probable cause determination, and a hearing on the issue of probable cause was held on December 2, 1998. At the close of the complainant's case, the respondent moved for a dismissal of the complaint. The ALJ orally granted the respondent's motion, and subsequently issued a written decision in the matter.

The ALJ makes critical findings of fact in his decision, which are not supported by the record. In particular, paragraphs 6 and 7 are not supported by the record. In paragraph 6 the ALJ finds that "Later that day (November 18, 1998), Dodson was sent home along with several other temporary workers due to a slow down (sic) in production." In paragraph 10 the ALJ finds that "Dodson was laid off on November 19, 1998, do (sic) to a slow down (sic) in work and was returned to her temporary agency along with Talena Walker, a black female." The ALJ then makes conclusions of law that there is no probable cause to believe that the respondent violated the Act based on race or disability "when it laid off the Complainant on November 19, 1998."

There is no evidence in the record to support the ALJ's findings that Dodson was sent home/laid off along with several other temporary workers due to a slowdown in production. There is no evidence in the record that Talena Walker is a black female.

The respondent apparently attempted to elicit legitimate, nondiscriminatory reasons for Dodson's termination through cross-examination of Dodson. This attempt was not successful, however. Dodson testified on cross-examination that when she returned to the temporary employment agency she was not told that her employment at the respondent ended due to "low demand." (That is, a slowdown in production. The term "low time" has also been used to describe the slowdown.) The respondent then questioned Dodson about her statement in Exhibit 2 that was submitted to the ERD. Exhibit 2 contains the statement, "Thay (sic) say low time came But when (sic) picked back up (sic) did not ask me to come back." But this statement was Dodson's reply to the respondent's response to her complaint. Specifically, it is a reply to the respondent's assertion that a work slowdown was the cause for her termination of employment. Indeed, referring to her statement in Exhibit 2, Dodson testified on cross-examination that this is "not what I was told." Dodson further testified that she did not know if other temps from the respondent were sent back to the temporary employment agency at the same time she was, although she also testified that Ms. Walker was sent back to the employment agency along with her. Ms. Walker's race was not identified, however. Nor is there any indication as to why Ms. Walker was sent back to the employment agency.

The respondent further questioned Dodson about her attendance. Dodson testified that she was absent on medical leave on November 17, 1998, and recalled being late for work on two occasions, once because of an unemployment insurance hearing and once because a coworker's tardiness in showing up for work at another job where she was employed caused her to be late for work at the respondent. Dodson further testified that Berget said that going to the U I hearing would not be counted against her. There was no evidence to show how Dodson's attendance compared with that of other workers.

In response to questions from her own counsel, Dodson testified that she believed that Berget was impressed with her job performance and that Berget complimented her on her performance a few times. On cross-examination Dodson testified that she made the required quota of products on her shift.

Dodson's theory of race discrimination with respect to the termination of her employment is not entirely clear. However, absent evidence in the record as to the respondent's reason(s) for terminating her employment, it cannot be concluded that there is no probable cause to believe Dodson was discriminated against on the basis of her race.

Dodson's disability discrimination claim appears to be that she sustained a disability as a result of being struck in the back and that the respondent agreed to place her on light duty to accommodate her disability but then terminated her employment. Apparently, Dodson had not been diagnosed as having a bulging disc at the time her employment was terminated. In fact, the medical evidence presented at the hearing shows that at the time of Dodson's termination of employment two physicians had released her to return to work without restrictions. Based upon the medical evidence presented at the hearing, at the time of Dodson's termination of employment, Dodson did not have a physical or mental impairment that made achievement unusually difficult or limited her capacity to work. Nor was there any evidence that Dodson had a record of such an impairment.

However, in order to find that an individual is "disabled" within the meaning of the Fair Employment Act it is not necessary to find that the individual actually has a disability. Under the Act, a " `Disabled individual' means an individual 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). (Emphasis added).

Dodson testified that on November 17, 1998, she talked to Berget for two hours about what happened on November 16, 1998, and how she was feeling as a result. Dodson testified that Berget said he would put her on light duty for a while, and that he recommended the name of a chiropractor that she should see. Dodson testified that on November 19, 1998, she was notified by phone not to come to work, ending her employment with the respondent. Dodson testified that she was not given a reason for being let go.

Absent evidence as to the respondent's reason(s) for the termination of Dodson's employment, it cannot be concluded that there is no probable cause to believe that Dodson was discriminated against on the basis of disability.

Accordingly, the commission has set aside the ALJ's decision dismissing Dodson's claims of race and disability discrimination and remanded this matter for further proceedings and the issuance of a new decision.

NOTE: On appeal Dodson apparently requests that her complaint be amended to include other alleged disabilities (epilepsy and reading disorder) as a basis for her claim against the respondent. These alleged disabilities were not the subject of the hearing in this matter, nor had there been any prior request by Dodson that her complaint be amended to include them. These alleged disabilities are being raised for the first time before the commission, and therefore must be considered as waived. Accordingly, Dodson's request to amend her complaint to include other alleged disabilities as a basis for her claim against the respondent is denied.

cc: Attorney Pamela M. Ploor

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