DOUGLAS C. BUYATT, Complainant

C. W. TRANSPORT, INC., Respondent

The examiner issued her recommended decision on December 2, 1976. Timely exceptions were filed and written arguments were submitted. Based upon a review of the record in its entirety the Labor and Industry Review Commission issues the following:

That the attached recommended decision is adopted in its entirety and shall stand as the final order herein.

Dated at Madison, Wisconsin July 25, 1977

/s/ Virginia B. Hart

/s/ John C. Zinos

Note: The recommended decision adopted by the commission in this matter is reproduced in its entirety below:

STATE OF WISCONSIN
DEPARTMENT OF INDUSTRY, LABOR AND HUMAN RELATIONS
EQUAL RIGHTS DIVISION

Douglas C. Byatt
Complainant, 

vs . 

C. W. Transport, Inc.
Respondent.

PROPOSED FINDINGS OF FACT, 
PROPOSED CONCLUSIONS OF LAW
PROPOSED ORDER & OPINION
ERD Case No. 7500097

The Complainant filed a complaint with the Department alleging that the Respondent discriminated against him on the basis of handicap in regard to discharge in violation of Wisconsin's Fair Employment Act. Probable cause was found; conciliation failed. A hearing was held September 13, 1976 in Madison, Wisconsin before Kathryn A. Curtner, Department Hearing Examiner.

Based upon evidence produced at the hearing, I make the following:

PROPOSED FINDINGS OF FACT

1. Respondent is a transport company with an office located in Wisconsin Rapids, Wisconsin and a terminal located in Milwaukee, Wisconsin.

2. The Complainant is deaf in his left ear. He does not wear a hearing aid.

3. The Complainant was employed by the Respondent as a truck driver from May 8, 1974 to May 29, 1974. During that time, he earned $625.17.

4. The Complainant had had one year of experience driving trucks before being employed by the Respondent. The Complainant was physically qualified to drive truck under I.C.C. regulations. The Complainant passed the Respondent's physical examination.

5. Trucks such as those the Complainant drove have two outside rearview mirrors.

6. The Complainant's regular operator's license in 1974 required him to use either a hearing aid or an outside rearview mirror. One must have a chauffeur's license in order to drive a truck. The Complainant's chauffeur's license had no restrictions in 1974.

7. One week before he was terminated, the Complainant was asked by Tom Lynch, general manager of Respondent's Chicago terminal, whether he wore a hearing aid. The Complainant answered "No."

8. The Complainant was terminated on May 29, 1974 by Tom Lynch, who was acting on instructions from the Wisconsin Rapids Office. Lynch was not told why he was to terminate the Complainant.

Based on the Proposed Findings of Fact, I make the following:

PROPOSED CONCLUSIONS OF LAW

1. The Respondent is an employer within the meaning of Sections 111.31-111.37, Wisconsin Statutes.

2. The Complainant is handicapped within the meaning of Sections 111.31-111.37, Wisconsin Statutes.

3. The Complainant was able to perform the job duties of a truck driver.

4. The Respondent discriminated against the Complainant on the basis of handicap in regard to discharge in violation of Sections 111.31-111.37, Wisconsin Statutes.

Based on the Proposed Findings of Fact and the Proposed Conclusions of Law, I make the following:

The Respondent shall pay to the Complainant within 30 days of the effective date of this order back pay of $208.39 per week for the period of time from May 29, 1974 until the Complainant was next permanently employed full time. The Respondent may deduct from the back pay owed to the Complainant an amount equal to any wages earned by the Complainant from part-time or temporary work performed during that period.

Dated at Madison, Wisconsin  December 2, 1976

/s/ Kathryn A. Curtner, Hearing Examiner

The Complainant has established a prima facie case of discrimination on the basis of handicap: he is handicapped; he was able to perform the work; and he was discharged. Upon the Complainant's establishing a prima facie case of discharge on the basis of handicap, the burden shifts to Respondent to show that the discharge was based on a legitimate business reason. Respondent has not met this burden.

Respondent's only witness was Tom Lynch, who was the general manager of Respondent's Chicago terminal. Lynch testified that he had been asked by someone from the Wisconsin Rapids office to find out if the Complainant wore a hearing aid. Lynch did this. One week later he was told to discharge the Complainant. He was not told why the Complainant was being discharged. Lynch testified that he is never given a reason when a probationary employe, as the Complainant was, is discharged within 30 days of being hired. The fact that the Complainant was a probationary employe may explain why Respondent did not tell the Complainant the reason for his discharge. It does not, however, explain the discharge itself.

Respondent argues that the Complainant lied on the application for employment by stating that he had no physical defect when, in fact, he was deaf in his left ear. I am not convinced that that evidence is sufficient to prove that the Ccmplainant did lie on his application for employment. However, even if one assumes that the Complainant did lie on the application, there was no evidence that that was the reason that the Complainant was discharged. As far as the Respondent's evidence shows, the Complainant was discharged for no reason.

The Respondent has objected to the Department's jurisdiction on two grounds. First, Respondent argues that the owner of the truck, Larry Weber, was the Complainant's employer, not the Respondent. The evidence does not show whether Weber had anything more to do with the Complainant's employment than referring him to Respondent. Regardless of the degree of control Weber had over the Complainant, the decision to terminate Complainant was made solely by the Respondent. This indicates sufficient control over the Complainant's employment to lead to the conclusion that the Respondent was Complainant's employer.

Respondent also argues that the law of Illinois should apply instead of the law of Wisconsin. Respondent bases this argument on the fact that the Respondent's Steel Division is located in Chicago, that the Complainant's home base was the Chicago terminal, and that Tom Lynch was in Chicago when he notified the Complainant that he was discharged. (The Complainant was in Waukesha, Wisconsin when he was discharged.)

The controlling factor is where the discrimination took place. The decision to terminate the Complainant was made in Respondent's Wisconsin Rapids office. Since the discrimination occurred in Wisconsin, Wisconsin law applies.

Complainant was paid 29 percent of the revenue generated by the load he trucked. Since one does not know how much revenue Complainant's loads would have generated had he not been terminated, it is not possible to calculate exactly the amount of back pay to which he is entitled. However, the fact that the amount of back pay cannot be exactly calculated or is difficult to calculate is not a sufficient reason to deny the remedy. Complainant worked for the Respondent for three weeks. During that time, he earned $625.17, or an average of $208.39 per week. This is the rate to be used in calculating the amount of back pay to which the Complainant is entitled.

During the five years that Lynch worked for Respondent, only two people had ever driven Larry Weber's rig: Weber and the Complainant. If Weber had wanted to resume driving, and he did not return with a second rig, the Complainant would have been terminated. However, 90 percent of the owner-drivers who returned to driving try to return with a second rig. Lynch testified that the Respondent had never laid a driver off except where a truck was taken off. The only evidence that the Complainant would have been terminated later if he had not been terminated in May was that Weber's rig was idle until Weber returned to driving. There was no evidence concerning when Weber returned to driving, nor is there any evidence that he would have returned if the Complainant had not been terminated. Since the Respondent has not proved that Complainant's employment would not have continued indefinitely, it is reasonable to award the Complainant back pay for the period of time from the date of his discharge until he was again permanently employed full time.

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