DAVID E. FALK, Complainant

WIPC LLC, 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.

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

Dated and mailed December 18, 2003
falkda . rsd : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The complainant, David Falk, alleges that the respondent discriminated against him because it refused to accommodate his disability and terminated his employment because of his disability. The ALJ dismissed Falk's complaint following a motion by the respondent for a dismissal of said complaint for failure to state a claim for which relief may be granted under the Fair Employment Act.

Falk identifies his disability as a "back impairment due to slow recovery from surgery." Falk's assertions and the documents he presented to the Equal Rights Division show the following: Falk took a leave under the Wisconsin Family and Medical Leave Act to undergo surgery on his back in January 2001. In March 2001, Falk requested light duty work but the employer refused such request because this would have required it to lay off another worker. Falk presented a release from his physician dated March 21, 2001, which stated he could return to work with a 15 pound lifting restriction. On March 23, 2001, the employer notified Falk that his family medical leave absence expired April 1, 2001, and that if he did not return to work by April 2 with a release from his physician allowing him to perform his full duties, he would be considered to have voluntarily resigned. Falk presented a release from his physician dated March 30, 2001, which stated he could return to his regular duties on May 1, 2001. The employer advised Falk that his employment was terminated because he did not return to work at the expiration of his medical leave.

Under the Fair Employment Act, an " 'Individual with a disability' 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).

Falk's alleged disability, a "back impairment due to slow recovery from surgery," does not constitute a disability within the meaning of the Fair Employment Act. Falk's alleged impairment, by its very terms, indicates that it was a temporary condition. Indeed, Falk's March 30 statement from his physician confirms that his condition was merely temporary. The commission has long held that disabilities which are merely temporary do not fall within what is intended to be covered by the Fair Employment Act's prohibition on discrimination because of disability. Reinke v. Pick' N Save Mega Food Centers (LIRC, 01/28/00). Absent the existence of an impairment covered under the Act, the employer can not be found to have discriminated against Falk on the basis of disability.

In his petition for review Falk continues to assert that the employer could have given him light duty. However, there is no requirement under the Fair Employment Act that an employer offer accommodation to an individual who does not have a disability within the meaning of the Act.

cc: Attorney Anne P. Terwilliger

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uploaded 2003/12/22