ROBERT FERGUSON, Complainant

BUECHEL STONE CORP, 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 modification:

1. The third through sixth full paragraphs of the administrative law judge's decision are deleted and the following substituted therefor:

"While the complaint alleges that the complainant engaged in protected activity under the Act, the alleged retaliatory actions do not affect employment or employment opportunities in the manner contemplated in § 111.322 of the Act. The Act prohibits employment discrimination, but the actions referred to in the complaint have only the most tenuous relationship to any terms or conditions of employment. Although an indirect relationship to employment may result in coverage under the Act, the actions in which the respondent is alleged to have engaged, refusing to provide a copy of a personnel file and providing false information to the Worker's Compensation Division, bear no relationship to any present or future employment opportunity for the complainant. Consequently, the Division has no jurisdiction over the complaint."

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

Dated and mailed October 31, 2001
ferguro . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In his petition for commission review the complainant argues that his complaint was related to his employment because he alleged a retaliatory act that had an impact on his potential future employment. Specifically, the complainant contends that the respondent lied on his worker's compensation form, which led to the denial of his claim, which resulted in his not being able to receive proper medical care, which means he cannot get the type of job for which he is qualified. The commission does not find this argument persuasive. While the connection between the alleged retaliatory activity and an employment opportunity may be indirect, the connection described by the complainant in this case is simply too attenuated to support a claim of retaliation under the Act. Although a misrepresentation of information on a worker's compensation form could conceivably lead to the denial of worker's compensation benefits, the complainant has failed to demonstrate that there is any significant connection between such conduct and his future employment opportunities. The complainant also contends that the respondent denied him his medical records and personnel file and that this had an impact on his potential future employment. However, the complainant has not explained how the alleged denial of his employment records by the respondent is connected to other employment opportunities, and the commission sees no such connection. Accordingly, the complaint was properly dismissed.

NOTE: The commission has modified the administrative law judge's decision in order to delete that portion of the decision which concludes that the Wisconsin Open Personnel Records Law and Worker's Compensation Act provide the exclusive remedies for the actions of which the complainant complains. The fact that redress is available under other statutes would not prohibit the complainant from stating a claim under the Wisconsin Fair Employment Act, provided the conduct alleged was otherwise covered under the Act.

cc: Attorney Steven R. Sorenson

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uploaded 2001/11/01