DANNY CLARK, Complainant

FRISKIES PETCARE, 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 second sentence of Finding of Fact number 27, substitute "absolutely" for "absolute."

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

Dated and mailed August 16, 2001
clarkda . rmd : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

This case presents allegations of discrimination because of disability in regard to conditions of employment, and allegations of retaliation based on the filing of a previous complaint. The Initial Determination found no probable cause, and Complainant appealed. Following hearing held on June 15, 2000, and continued to July 10, 2000, the ALJ dismissed the complaint on Respondent's motion when the Complainant rested his case. The Complainant has petitioned for review.

For the following reasons, the commission agrees with, and has affirmed, the ALJ's rulings in this matter, as well as his decision that there is no probable cause to believe that the Respondent discriminated against the Complainant as alleged in the complaint.

Statute of Limitations - The ALJ concluded that certain issues were barred by the 300-day statute of limitations contained in the WFEA. The Complainant argues that the ALJ "den[ied] the use of documents beyond the 300-day limit" but that he nevertheless "routinely refer[ed] to events in his `Finding of facts' well beyond the 300 day limit." In addition, the Complainant appears to be arguing that the statute of limitations should not have been applied because the conduct by Respondent he complains of was "continuing."

Complainant appears to misunderstand the nature of the ALJ's ruling. The ALJ did not "deny the use of documents beyond the 300-day limit;" rather, he ruled that claims of allegedly discriminatory acts occurring more than 300 days before the filing of the complaint were not timely and that therefore he would not be making any decision that any of those acts constituted violations of the WFEA. The commission agrees with the ALJ's ruling on the statute of limitations question; for the reasons explained by the ALJ, the "continuing violation" theory was not applicable here.

It was not inappropriate for the ALJ to refer, in his findings of fact, to events which occurred more than 300 days before the filing of the complaint. As the ALJ explained to the Complainant, the fact that the allegations were untimely (and thus could not in themselves be found to constitute discrete violations of the Act) did not mean that the events could not be considered as evidence bearing on the question of whether acts which occurred within the 300-day period were discriminatory. This was the correct approach for the ALJ to take. The statute of limitations is not a rule of evidence. See, Forster v. Abbyland Processing (LIRC, March 22, 1995).

Exclusion of documents -- At the hearing, the ALJ excluded all proposed exhibits offered by Complainant except those that had been appended to the complaint. The exclusion was based on his decision that the Complainant had not complied with the Division's rule concerning pre-hearing exchange of exhibits. (1)  The Complainant asserts that this was error.

In this case, the Complainant served not copies of documents, but digital versions of documents on a CD-ROM. In addition, the quantity of the documents thus served was staggering: there were thousands of documents and many thousands of pages.

The ALJ explained at the hearing that he believed that the extremely large quantity of documents provided was inconsistent with the disclosure rule. The commission agrees. The purpose of the rule concerning pre-hearing exchange of exhibits, is to avoid undue surprise at hearing, and to give the opposing party proper opportunity to prepare its case against such witnesses and exhibits. Walker v. Masterson Co. (LIRC, 10/4/95), Scott v. Sno Bird Trailer Co. (LIRC, 12/19/90). The most important requirement of this rule is the notice provided to the other party; the requirement of service on the Division serves mainly to keep the Division informed as to whether the parties are complying with the exchange requirement. The purpose of the rule is completely frustrated where a party simply serves a huge number of documents. As the ALJ noted at the hearing, even the Complainant himself did not know which of the documents he would actually be attempting to offer as exhibits. By serving thousands of documents, Complainant effectively "hid" anything which was potentially relevant and which might be used at hearing, in a flood of other papers. The effect is the same as if nothing at all were served: the other party does not receive any usable information about what documents are going to be relied on at hearing.

In addition, and entirely apart from the quantity of documents involved, the commission believes that the method of serving the documents - by CD-ROM - was not proper. There is no express authorization in the rule for service of the copies of the documents there referred to, in digital form. The commission notes, that there are likely to be people involved in proceedings before the ERD who do not have the equipment necessary to access digitally-provided data. There are issues about the fairness of a system that requires certain equipment, which is not inexpensive, in order to be able to take advantage of procedural rights. There are practical problems about such matters as file formats, that also have the potential to make this a very complicated approach. The commission therefore concludes, that the fact that the disclosure of documents was effected by CD-ROM constituted a separate basis on which the ruling excluding the documents can be justified.

Discrimination - Based on its review of the record, the commission finds itself in complete agreement with the findings, conclusions and analysis of the ALJ on the question of whether there is probable cause to believe that the Respondent discriminated against the Complainant because of disability or because of his prior filing of a discrimination complaint. There is simply no persuasive evidence of any adverse actions being taken against the Complainant because of a motive related to his prior filing of a discrimination complaint or to his disability.

With respect to the potential issue of accommodation of a disability, there is also no basis on which to find even probable cause to believe that there was a violation of the WFEA. The job in question includes (in part) a requirement that the person in the job work overtime and Saturdays, Sundays, and holidays. The Complainant's contention is, that because of disability he cannot do that part of the job. Complainant could be taken as arguing, that the matter of working overtime and Saturdays, Sundays, and holidays is not an essential part of the job, and that creating an exception for him whereby he was relieved of that requirement of the job would be an accommodation that would allow him to do the rest of the job. However, Complainant's contention about what he can and cannot do was rejected, and properly so. The ALJ found that, by August 10, 1998, the medical evidence indicated that Complainant did not have any physical restrictions as the result of his back condition (FOF 26) and that Dr. Lemon concluded that Complainant had absolutely no restrictions on his ability to perform his job with the Respondent (FOF 27). The commission is in full agreement with these findings.

This case does not involve a person who is able to do a job notwithstanding their disability and who seeks only to be allowed to do so. It involves a person who seeks to be allowed to not do part of their job, based on his claim that he is not able to do that part of it. However, Complainant's claim that he is not able to work overtime, Saturdays, Sundays and holidays, is not supported by the evidence. There is no probable cause to believe that the Respondent discriminated against the Complainant by asking him to perform work which is part of his job and which he is physically able to do.

cc: Bernard J. Bobber, Attorney for Respondent

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(1)( Back ) Wis. Admin. Code DWD 218.17, "Exchange of names of witnesses and copies of exhibits," which provides that [b]y no later than the tenth day prior to the day of hearing, the parties shall file with the division and file upon all other parties a written list of names of witnesses and copies of exhibits which the parties intend to use at the hearing. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing.

uploaded 2001/08/17