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

PATRICK CLEARY, Complainant

FEDERAL EXPRESS, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200000001, EEOC Case No. 26GA00453

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:

The third and fourth paragraphs of the ALJ's decision are deleted to more accurately reflect the record and the commission's decision rationale.

DECISION

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

Dated and mailed July 30, 2003
clearpa . rmd : 115 : 9  

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


In its arguments to the commission, the respondent takes issue with certain discovery/procedural rulings of the administrative law judge. Specifically, respondent's former counsel failed to file timely discovery responses and failed to timely file copies of hearing exhibits/list of hearing witnesses, despite being afforded a second opportunity to do so and in violation of an order issued by the administrative law judge. As a result, statements included in the complainant's Requests for Admission were deemed admitted by operation of Wis. Stat. § 804.11(1)(b), and the respondent was prevented from offering certain documents as hearing exhibits and certain witness testimony. In the commission's opinion, these rulings by the administrative law judge were entirely proper. Respondent now argues that, "The ALJ's exclusion of evidence was patently unfair.", and that the respondent's former counsel's "deplorable conduct so deteriorated the ALJ's sense of fairness and equity that Federal Express was denied the right to present crucial evidence in the proceedings." However, the commission has been consistent in holding clients responsible for the actions of their counsel, and there is no reason not to do so here. See, Squires v. Motex, Inc., ERD Case No. CR200100708 (LIRC March 15, 2002); Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 284, 470 N.W.2d 859 (1991).

The commission has reviewed the entire hearing transcript and agrees with the administrative law judge's credibility assessments, except as discussed below. In particular, the commission agrees with the administrative law judge's conclusion that complainant's treating physician was not credible "in regard to his testimony regarding sleep disorders and how they might apply to the complainant." Not only did the treating physician acknowledge that, as a neurologist, he is not an expert in sleep disorders, but also that he had not examined or even spoken to the complainant since May of 1999. As a result, the commission agrees with the administrative law judge that the record establishes that, in order to avoid seizures, the complainant needs a consistent schedule but not necessarily a first shift schedule.

The complainant contends that the fact that he started experiencing auras, i.e., small seizures, after he was transferred to the third shift senior mechanic position at the airport, demonstrates that third shift work made him more susceptible to seizures and, as a result, that the respondent failed to reasonably accommodate his disability by denying his request to transfer to the first shift. The administrative law judge did not credit the complainant's evidence that he had in fact experienced such auras, based at least in part on his conclusion that the complainant did not offer testimony to this effect until Dr. Morris had testified that he had no record of these auras. The record shows, however, as complainant has argued, that he did in fact testify that he was experiencing such auras before Dr. Morris testified.

Even considering, however, this consistent testimony by the complainant, the commission concludes, based primarily on the fact that the complainant did not seek medical attention or report the onset of auras to his treating physician, that the complainant did not experience auras while working the third shift at the airport. Moreover, whether or not the complainant experienced these auras would only affect the outcome here if the evidence showed that their onset would be attributable to working third shift hours rather than to some other factor. As concluded above, however, the medical evidence of record supports the conclusion that a consistent schedule, not a particular schedule, would be the determining factor, i.e., that the fact that the complainant may have suffered auras or seizures during this time period would not, in view of his failure to follow a consistent sleep schedule, have demonstrated that the third shift work itself was causing the problem.

Respondent also challenges the administrative law judge's attorney's fees/costs award. The commission agrees with the administrative law judge, however, that, since the complainant did not prevail on each issue, there should be a reduction in the attorneys' fees/costs awarded, but that, since the issue on which the complainant prevailed is by far the most significant issue and the one which involved the most substantial and meaningful remedy, this reduction should only be 20%. Since the complainant did not prevail in his petition to the commission, no additional fees/costs should be awarded as a result.

cc: 
Attorney Mary E. Kennelly
Attorney Sally A. Piefer

Appealed to Circuit Court (separate appeals commenced by both parties). Affirmed in part (liability, attorneys' fees for proceeding before ALJ) and reversed in part (denial of attorneys' fees to complainant for proceedings before LIRC), March 18, 2004.

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uploaded 2003/08/13