KAREN HAYNES, Complainant

NATIONAL SCHOOL BUS SERVICE, INC., Respondent

An Administrative Law Judge (ALJ) for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 29, 1990, and an amended decision on July 6, 1990. Complainant filed a timely petition for commission review of the amended decision.

Based upon a review of the record, in its entirety, the Labor and Industry Review Commission issues the following:

1. The Complainant began her employment with the Respondent in October of 1986 as a school bus driver.

2. The Complainant was diagnosed in April of 1986 to have diabetes mellitus. In addition, the Complainant's medical history indicates that she has suffered from chronic blurred vision since high school.

3. The Complainant completed an application for employment with the Respondent on October 24, 1986. In response to question #8 on page 2 of the application, which states: "Are you now or have you ever been a diabetic?", the Complainant answered "no."

4. However, on October 24, 1986, the Complainant had been aware, since at least April of 1986, that she was suffering from diabetes mellitus which was uncontrolled. The Complainant's condition was being treated with insulin.

5. Prior to driving a school bus for the Respondent, the Complainant possessed a valid school bus operator's license. The Complainant had driven a school bus for the Respondent and, before that, for the Safe Line School Bus Company. The Complainant was driving for the Safe Line School Bus company immediately prior to coming to work for the Respondent.

6. The Complainant's condition of diabetes mellitus requires that she monitor her blood sugar levels. When the Complainant's blood sugar level is high she feels sweaty and hyper and, when it is low, she feels fatigued. The Complainant monitors her blood sugar levels at the request of her physician so that they may be controlled. If the Complainant's blood sugar level goes up or down she may go into a diabetic coma or shock.

7. The Complainant becomes dizzy when her blood sugar level goes up and she feels tired when it goes down. In addition, the Complainant suffers from chronic blurred vision.

8. On November 16, 1986, the Complainant was seen by Dr. Alfredo Millan for problems with dizziness and headaches. On November 17, 1986, Dr. Millan indicated that the Complainant suffered from diabetes mellitus and that it was uncontrolled. Dr. Millan referred the Complainant to Dr. Simplicio Go. The Complainant was seen by Dr. Go on November 17, 1986 for dizziness.

9. On November 20, 1986 the Complainant called her supervisor, Brad Michler, to tell him that she was ill and that she would not be coming into work that day. The Complainant stated that she told Mr. Michler that she had diabetes.

10. Mr. Michler does not recall that the Complainant told him at that time that she had diabetes but agreed that she told him later. Mr. Michler, after being told of the Complainant's diabetes, explained to her that, as a diabetic, she would not normally have a school bus operator's license. As a diabetic whose condition was under the control of insulin, the Complainant, according to Mr. Michler's understanding of the Department of Transportation regulations, would not be allowed to drive a school bus.

11. Mr. Michler did not ask the Complainant to sign an authorization to release her medical records to the Respondent.

12. Mr. Michler stated that he would not allow the Complainant to return to work and drive a school bus for the Respondent without an authorization from the Division of Motor Vehicles. Mr. Michler felt that the Complainant would not be able to retain her license but that it was the State's decision on whether she would be allowed to retain her school bus operator's license.

13. Mr. Michler told the Complainant that he would not allow her to return to work without an authorization from the Division of Motor Vehicles stating that she could, as a diabetic on insulin, drive a school bus. Mr. Michler did not terminate the Complainant's employment but doubted that she would be able to obtain such an authorization from the Division of Motor Vehicles.

14. The Respondent's records indicate that the Complainant's first day of absence after her November 20, 1986 conversation with Mr. Michler was on that same date, November 20, 1986. The Complainant did not report to work the next day or thereafter and never returned to work for the Respondent.

1. The Respondent is an employer within the meaning of the Act.

2. The Complainant is handicapped within the meaning of the Act.

3. The Complainant's handicap, because the Division of Motor Vehicles was required to determine whether her diabetes affected her ability to drive a school bus safely, was reasonably related to her ability to adequately undertake her job related responsibilities as a school bus driver, at least during the period when she was suspended by the Respondent, pending the Division's determination.

4. The Respondent did not terminate the Complainant's employment and did not unlawfully suspend or otherwise discriminate against the Complainant because of her handicap, in violation of the Act.

The complaint is dismissed.

Dated and mailed January 31, 1992 

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The ALJ, John Grandberry, held that National School Bus Services (NSBS) did not terminate Karen Haynes' employment as a school bus driver, but that the refusal of NSBS to allow Haynes to drive a school bus without authorization from the State Division of Motor Vehicles (DMV) that she (as an insulin-dependent diabetic) could drive a school bus, when she possessed a valid school bus driver's license, constituted handicap discrimination.

The commission agrees that NSBS did not terminate Haynes' employment, but the Commission has decided that the refusal of NSBS to allow Haynes to drive a school bus without DMV authorization that she (as an insulin- dependent diabetic) could drive a school bus, even though she possessed a valid school bus driver's license, did not constitute handicap discrimination. The Commission has not consulted with the ALJ because legal differences (as opposed to issues of witness credibility) do not require consultation. Carley Ford, Lincoln, Mercury v. Bosquette, 72 Wis. 2d 569, 576, 241 N.W.2d 596 (1976). The ALJ's findings have been modified to recite the evidence more concisely and more correctly, and to eliminate recitation of administrative rules, which are not properly considered findings of fact. This Memorandum opinion will explain the Commission's reasons for dismissing Haynes' discrimination complaint. The somewhat detailed statement of facts which precedes that explanation, serves as the basis for the Commission's reasons.

Facts

National School Bus Service (NSBS) is a common carrier and is in the business of safely transporting school children to and from school and other activities. (TR 81) On October 24, 1986, Karen Haynes applied for employment with NSBS as a school bus-driver. (TR 6-7) On her application form, Haynes answered "No" to the question: "Are you now or have you ever been a diabetic?" (TR 8, 77-78; Comp. Exh., 1)

In fact, Haynes had been diagnosed in April 1986 as suffering from diabetes. (TR 10, 26-28; Resp. Exh. 4) On April 21, 1986, Haynes was referred to Dr. Simplicio Go by her treating physician, Dr. Alfred Millan, for what was stated on the referral form as "diabetes-mellitus-severe." (Resp. Exh. 3) Haynes was admitted to the hospital on April 22, 1986 and was released on April 26, 1986. The primary diagnosis at the time she was admitted was "uncontrolled diabetes mellitus and morbid obesity." The discharge diagnosis was "new onset diabetes." When she was released, Haynes was placed on twice daily injections of insulin to control the diabetes. She was referred by Dr. Millan to a Dr. Robinson twice during the summer of 1986 for consultation and treatment of her diabetes.

Haynes admits that she lied on her application for employment'with NSBS concerning her diabetes and claims that she lied because she "felt it (the question) was personal." (TR 8, 14, 18-19) Haynes also claims that when she applied for employment with NSBS, she was not aware that there were state (Division of Motor Vehicles) rules which dealt with the issuance of school bus drivers' licenses for diabetics. (TR 9)

As stated earlier, Haynes requires insulin to control her diabetes. (TR 9) In addition to taking insulin, Haynes testified that, on doctor's orders, she monitors her blood sugar levels to make sure the levels are not too high or too low. (TR 19) If her diabetes is not controlled by insulin; Haynes can experience dizziness, fatigue, blurry vision, and even go into a diabetic coma. (TR 19-20) Haynes has had chronic blurry vision since high school and also has experienced dizziness, and she believes that it would be dangerous for her to drive in those circumstances. (TR 19-20, 23, 26, 28) Haynes' dizziness and blurry vision are related to her diabetes; they can happen at any time and she cannot tell in advance when they will happen. (TR 37-38) Haynes testified that she never drove a school bus while she felt dizzy or was ill. (TR 10)

Haynes first obtained a school bus driver's license in December 1985 when she was employed by the Safeline School Bus Company as a school bus driver. (TR 5-6, 10, 29-31) Haynes worked for Safeline from December 1985 until October 1986 when she applied for employment with NSBS. (TR 5-7) Haynes never informed the State Division of Motor Vehicles (DMV) that she was diabetic. (TR 31-32)

NSBS hired Haynes as a school bus driver in October 1986. (TR 10) She never received any warning or discipline for her driving during her short tenure with NSBS. (TR 10-11, 65-66)

On November 17, 1986, Haynes' physician, Dr. Millan,. referred her to Dr. Go for "diabetes mellitus uncontrolled." (TR 24; Resp. Exh. 2) On November 20, 1986, Haynes saw Dr. Millan because she was experiencing dizziness and problems with her legs. (TR 21-22; Resp. Exh. 2) Haynes testified that either Dr. Millan or Dr. Go told her that her diabetes was under control and she also testified that neither of them told her not to drive a school bus. (TR 36-37) Haynes did not state whether she ever informed her doctors of her occupation and discussed with them any effect her diabetes might have on her ability to safely drive a school bus. Also on November 20, 1986, Haynes informed her supervisor, Brad Michler, by telephone, that she was ill and would not report to work. (TR 11, 46, 52-53, 58, 65, 71, 87)

During either the November 20th telephone conversation or in a subsequent conversation a few days later, Haynes specifically, told Michler that she was an insulin-dependent diabetic. Michler responded by telling Haynes that she would not hold a valid school bus driver's license if she were an insulin- dependent diabetic (based upon his understanding of DMV rules at the time) and that she should not be driving; and Michler (according to Michler's testimony) told Haynes that she could not return to work without proof that the DMV was aware of her diabetic condition and had authorized her to continue working as a school bus driver. (TR 11-13, 46-47, 52-53, 59-64, 69-72, 84) Haynes testified that Michler said he was going to report her diabetes to the DMV; that he never instructed her to do anything in the way of reporting her condition to the State and receiving approval to drive a school bus, and that she did not contact the DMV about her condition. (TR 12-13) Michler does not recall telling Haynes that he was going to report her to the DMV. (TR 65, 87)

Haynes did not drive a bus for NSBS after November 20, 1986. (TR 13, 58) Haynes testified on direct examination: "I was dismissed. I shouldn't come back because I was a diabetic and shouldn't be driving." (TR 12) Haynes testified on cross-examination, however, that she only assumed that she was dismissed and that nobody ever told her not to return to work. (TR 13- 14) She also testified on re-direct examination, however, that nobody ever told her that she could return to work and that there were never any conditions given to her regarding a return to work. (TR 35-36) Michler testified that he did not terminate Haynes' employment, but that he would not allow her to drive absent proof that the State was aware of her diabetes and had approved having her drive a school bus, that he doubted very much that the State would approve, and that he would have allowed her to drive school buses for NSBS if she had obtained clearance from the DMV. (TR 61, 64, 66-67, 72, 74-75, 81, 84)

Michler had authority to fire employes. (TR 44, 72) On Haynes' employe history personnel form, there is no entry in the space entitled "Termination Record," which has possible entries for a resignation or a dismissal. Michler testified that if someone were terminated, although he might not actually make a notation on the folder, he would indicate to someone else that the individual had been terminated and that employe would make the notation in the record. He further testified that he never directed that anything be put on Haynes' personnel form that she had been terminated. Finally, he testified that where there is no notation of termination or resignation in that area of the person's form, that that means the person was not actually terminated. (TR 72-74, 89; Resp. Exh. 7)

Michler never asked Haynes to provide any information concerning her medical treatment for diabetes, and never asked her to sign any release for medical records. (TR 38-39, 60) When Haynes picked up her paycheck two weeks after her last conversation with Michler, Michler did not inquire about her progress in gaining approval from DMV, did not offer to help, and did not offer her a chance to return to work. (TR 13, 64)

On September 10, 1987, Haynes filed a handicap discrimination complaint with the Department of Industry, Labor and Human Relations under the Wisconsin Fair Employment Act. She alleged. that NSBS discharged her from her employment as a school bus driver because she is a diabetic. On November 22, 1988, following an Initial Determination of probable cause, NSBS filed an answer to Haynes' complaint which denied that Haynes was discharged because of her diabetes but which affirmatively alleged that she "was discharged on the grounds that it was [NSBS's] information and belief that [Haynes] had obtained a school bus driver's license on the basis of fraud and misrepresentation." (emphasis added) As an affirmative defense, NSBS alleged in part that it acted in good faith and in compliance with Wisconsin Administrative Code rules regarding school bus drivers' licenses.

On June 29, 1990, after a hearing in the matter, ALJ John Grandberry issued his decision. He ultimately determined that NSBS unlawfully discriminated against Haynes on the basis of her handicap. He ordered NSBS to reinstate Haynes and to pay her back pay and attorney's fees (increased 20% to reflect the risk to Haynes' attorney who represented her on a contingent fee basis).

In reaching his decision, Grandberry found that NSBS did not terminate Haynes' employment as a school bus driver, but that the refusal of NSBS to continue permitting Haynes to work as a school bus driver was unlawful because Haynes had a valid driver's license and because State DMV rules concerning the licensing of persons with diabetes as school bus drivers do not preclude an employer from employing such a person.

On July 18, 1990, NSBS petitioned for commission review of Grandberry's decision. The primary contention of NSBS is that it fulfilled its duty to individually evaluate Haynes' ability to adequately undertake the duties of a school bus driver by requiring that she provide verification that the State DMV was aware of her diabetic condition and that it nonetheless approved allowing Haynes to drive a school bus.

DISCUSSION

1. Did NSBS terminate Haynes' employment as a school bus driver because of her diabetes?

In her complaint, Haynes alleged that NSBS discharged her as a school bus driver because she was a diabetic. The Notice of Hearing stated that the hearing would be held to determine "whether [NSBS) discriminated against [Haynes] because of handicap in regard to discharge." (emphasis added)

The Wisconsin Fair Employment Act (WFEA) requires that the Notice of Hearing specify "the nature of the discrimination which appears to have been committed." Section 111.39(4)(b), Stats. The Wisconsin Supreme Court has held that because of sec. 111.39 (4)(b), Stats., and because of the due process requirement that an employer receive adequate notice of the specific complaint against the employer, findings and orders under the WFEA may not be broader than that specified in the complaint and Notice of Hearing. Chicago, M. , St. P. & P. RR. Co. v. ILHR Dept., 62 Wis. 2d 392, 399-400, 215 N.W.2d 443 (1974); Wisconsin Telephone Co. v: ILHR Dept., 68 Wis. 2d 345, 355-360, 228 N.W. 2d 649 (1975); Watkins v. ILHR Dept., 69 Wis. 2d 782, 233 N.W. 2d 360 (1975) ; see also Hiegel v. LIRC, 121 Wis. 2d 205, 212, 359 N.W.2d 405 (Ct. App. 1984); Cf. General Electric Co. v. Wisconsin Employment Relations Board, 3 Wis. 2d 227, 241, 245-46, 88 N.W.2d 691 (1958). In Chicago, and in Watkins, the court held that where a specific act of discrimination against a specific individual was alleged in the complaint and specified in the Notice of Hearing, the agency could not order the employer to cease from discriminating against other individuals. In Wisconsin Telephone Co. and in General Electric Co., where the complaint and notice concerned an allegedly unlawful discharge and transfers, the agency could not make findings or orders concerning independent compensation issues. Finally, in Hiegel, where the complaint and notice concerned alleged discrimination in compensation, the agency could not make findings or orders concerning discrimination in hiring.

In this case, the issue framed by the complaint and the Notice of Hearing is whether Haynes was "discharged" because of her handicap. In a handicap discrimination case, the burden is on the individual to prove that he was refused employment, terminated, or otherwise discriminated against in terms, conditions or privileges of employment because of the individual's handicap. Section 111.321-111.322, Wis. Stats.; Boynton Cab Co. v. ILHR Dept., 96 Wis. 2d 396, 406,291 N.W.2d 850(1980) . The question of an employer's motivation presents a question of ultimate fact. Pullman-Standard v. Swint, 456 U.S. 273, 287-90 (1982).

Michler testified that he did not "terminate" Haynes' employment. (TR 66, 72) Rather, he testified that he considered her to be "suspended" until the State DMV was aware of her diabetes and approved allowing her to drive a school bus. (TR 72) Grandberry credited Michler's testimony and found that he did not "terminate" Haynes' employment. (Finding of Fact #16) Grandberry also decided, however, that the refusal of NSBS to continue permitting Haynes to work as a school bus driver (i.e., the "suspension") was unlawful.

Thus, a preliminary issue is whether the complaint and the Notice of Hearing, which refer to alleged handicap discrimination in regard to "discharge," are sufficient to permit a finding of handicap discrimination in regard to "suspension." While it did not frame the issue in exactly those terms, NSBS argues that it should prevail because the noticed issue was whether Haynes was "discharged" because of her handicap and the evidence shows that she was not "discharged" at all. Of course, this argument begs the question. If the complaint and the Notice of Hearing were sufficient to alert NSBS that "suspension" as well as "discharge" were at issue, then NSBS cannot prevail simply by proving that no "discharge" occurred.

The relationship between a "discharge" and a "suspension" is probably closer than the relationship between a discharge or refusal to hire and alleged discrimination in compensation (as in Wisconsin Telephone Co., General Electric Co., and Hiegel). This is especially true with regard to the facts of this case. Thus, although it could reasonably be argued that the complaint and Notice of Hearing were insufficient to put NSBS on notice that "suspension" as well as "discharge" were at issue, in light of the facts of this case and the fact that NSBS itself appeared to interchangeably refer to the conclusion of Haynes' employment as a "discharge" (in its answer) and as a "suspension" (in Michler's testimony), the Commission has decided that the issue of "suspension" maybe resolved in this case.

On the evidentiary issue on the merits, there seems to be little dispute that Haynes was suspended by Michler because of her handicap. Once an individual establishes that he or she was refused employment or was discharged because of a handicap, the burden of proof shifts to the employer to establish that the handicap is reasonably related to the individual's ability to adequately undertake the job responsibilities of that individual's employment. Section 111.34 (2) (a), Stats.; Boynton Cab Co., 96 Wis. 2d at 406. The next section of this memo will discuss whether NSBS met its burden of proof.

Before turning to that issue, however, it is worth mentioning that NSBS could have evaded liability altogether if it had discharged Haynes because she had falsified her employment application and not because of her handicap. Just as an employer is entitled to know whether an applicant has a conviction record, so that the employer can determine if the conviction record is "substantially related" to the applicant's prospective job duties, and therefore can lawfully refuse to hire an applicant who falsifies an employment application with respect to a conviction record, Miller Brewing Co. v. ILHR Dept., 103 Wis. 2d 496, 504-05, 308 N.W.2d 922 (Ct. App. 1981), an employer also has a right to know if an employe has a handicap (at least until the new Americans With Disabilities Act may provide otherwise) so that the employer can determine whether the handicap is "reasonably" related to the ability to undertake job responsibilities. Bucyrus Erie Co. v. ILHR Dept., 90 Wis. 408, 423, 280 N.W.2d 142 (1979) (the WFEA is not intended "to force an employer into the position of aiding a handicapped person to further injury, aggravating the intensity of the handicap or creating a situation injurious to others."). Accordingly, the employer can lawfully refuse to hire or can discharge an individual who falsifies an employment application with respect to a handicap. NSBS failed to invoke Haynes' falsified application as a basis for discharging her. Such failure, however, enhances the credibility of its contention that it did not terminate Haynes and merely required State DMV approval before allowing Haynes to continue driving a school bus.

2. Did NSBS fulfill its duty to individually evaluate Haynes' ability to adequately undertake the duties of a school bus driver by requiring that she provide verification that the State Division of Motor Vehicles was aware of her diabetic condition and had approved allowing her to drive a school bus?

The employer has the burden of proving that the handicap is reasonably related to the individual's ability to adequately undertake the job duties. Section 111.34(2)(a), Stats.; Boynton Cab Co., 96 Wis. 2d at 406. The employer's burden of proof encompasses two distinct points: (1) Is the individual physically able to perform the job duties?; and (2) Would employment of the individual be hazardous to the safety of the individual, co-employes, or the public? Id. at 408; Samens v. LIRC, 117 Wis. 2d 646, 664, 345 N.W. 2d 432 (1984); sec. 111.34 (2) (b), Wis. Stats. The latter exception, characterized as the "future hazards" exception in Chicago and Northwestern Railroad v. Labor & Industry Review Commission, 98 Wis. 2d 592, 605, 297 N.W.2d 819 (1980), requires different levels of proof, depending upon whether the employment involves a special duty of care for the safety of co- employes or the general public. Samens, 117 Wis. 2d at 671-72; sec. 111.34 (2) (c), Wis. Stats. If the employment does not involve a special duty of care, the employer must prove, to a reasonable probability, that because of the individual's handicap, employment in the particular job in question would be hazardous to the health or safety of the individual, co-employes or the public. See, Bucyrus Erie Co., 90 Wis. 2d at 421, 424. Individual evaluation of the job applicant is required in order to establish the future hazards exception to a reasonable probability. See, Samens, 117 Wis. 2d at 646; Boynton Cab Co., 96 Wis. 2d at 409; sec. 111.34(2)(b), Wis. Stats.

If the employment does involve a special duty of care, the court held in Boynton Cab Co. and in Samens that the employer need only prove that its hiring standard (rejecting individuals with a particular handicap) bears a rational relationship to the employer's special safety obligations, and that its standard is not the result of an arbitrary belief lacking in objective reason or rationale. 96 Wis. 2d at 396; Samens, 117 Wis. 2d at 672. The rational relationship standard, as formulated by the court in Boynton Cab Co. and Samens, did not entail individual evaluation of the job applicant. See, Samens, 117 Wis. 2d at 675, 678-79. In fact, the court in Samens affirmatively ruled that the employer was not required to determine the chances that a particular job applicant who had epilepsy would suffer a seizure: ". . . the rational relationship standard does not entail individual testing of the applicant . . . so Samens' chance of a recurrent seizure is irrelevant." 117 Wis. 2d at 657, 679. (emphasis added) In contrast, however, the court ruled in Chicago and Northwestern Railroad, under the reasonable probability standard, that the employer must prove that the likelihood of the employe having a seizure was reasonably probable. 98 Wis. 2d at 610.

Both Boynton Cab Co. and Samens were decided under the Wisconsin Fair Employment Act prior to the 1982 amendments to the statute. See Chapter 334, Laws of 1981; Samens, 117 Wis. 2d at 653-55, n. 4. In those amendments, the Legislature codified the distinction drawn in Boynton Cab Co. and Samens, between those employers having a special duty of care and those employers who do not have such a duty, but at the same time, the Legislature overruled those cases insofar as they had failed to require employers to conduct a case-by-case evaluation of the relationship between an individual's handicap and the responsibilities of the particular job. See sec. 111.34(2)(b), (c), Wis. Stats.; Bothum y. Dept. of Transp., 134 Wis. 2d 378, 396 N.W.2d 785 (Ct. App. 1986).

In Bothum, where an individual was denied licensing as a school bus driver because he was a diabetic and was required to use a hypoglycemic agent to control his diabetes, the court ruled that the agency could not deny him a license without an individual evaluation of whether his particular handicap would prevent him from safely working as a school bus driver. In so ruling, the court rejected the Department's blanket rule which provided that any person using a hypoglycemic agent "shall be denied licensing." The court concluded that the Department of Transportation was empowered ". . . to establish physical standards for the licensing of school bus drivers so long as those standards do not constitute a general rule 'prohibit(ing) . . . licensure of handicapped individuals in general or a particular class of handicapped individuals,' within the meaning of sec. 111.32 (2) (b), Stats. The rule under consideration . . . violates both the spirit and letter of sec. 111.32(2) and cannot stand." 134 Wis. 2d at 382-83.

Consequently, in proving the future hazards exception, where the employer has a duty of special care to the public, as is clearly the case here, the employer now must prove that there is a "reasonable possibility" that an individual suffering from a condition such as diabetes in the present case, will suffer any of the serious side effects of diabetes in an employment situation which will be hazardous to the safety of that individual, his or her co-workers or to the public. Chicago and Northwestern Railroad, 98 Wis. 2d at 610; Samens, 117 Wis. 2d at 668, 679.

Whether an employer is able to prove the future hazards exception presents a question of fact. Chicago and Northwestern Railroad, 98 Wis. 2d at 607; but also see Samens, 117 Wis. 2d at 673-74. In determining whether the employer has met its burden of proof in this area the evidence presented by both parties must be carefully evaluated. Bucyrus Erie Co., 90 Wis. 2d at 423.

In this case, the evidence necessary to evaluate the future hazards exception is quite limited. Haynes testified that she was first diagnosed as a diabetic in May 1986 (although the medical records reveal that her diagnosis came in late April 1986), that she required insulin to control her diabetes, that she experienced dizziness and blurry vision related to her diabetes, that she had no advance warning when dizziness or blurry vision would occur, and that it would be dangerous for her to drive under those circumstances. In addition, on November 17, 1986, Dr. Millan referred Haynes to Dr. Go for "diabetes mellitus uncontrolled," and on November 20, 1986, Haynes saw Dr. Millan because she was experiencing dizziness and problems with her legs. On the other hand, Haynes testified that either Dr. Millan or Dr. Go told her that her diabetes was under control, that neither doctor told her not to drive a bus, and that she never drove a school bus while she felt dizzy or was ill. However; she never testified that she affirmatively discussed her diabetes, as it relates to her occupation, with either of her doctors.

NSBS offered no expert opinion, medical or otherwise, to establish that Haynes could not drive a school bus safely. Bothum teaches that diabetics who require insulin to control their condition must be evaluated individually and cannot be refused employment simply because they require insulin to control their condition. The fact that Haynes also experienced dizziness and blurry vision, which occur without warning, is therefore the principal evidence in applying the future hazards exception. The difficulty is, without any expert medical opinion, that the record provides a less than sufficient basis from which to predict whether Haynes' past experiences with dizziness and blurry vision are likely to recur. Haynes did admit, and the medical records confirm, that the blurry vision has been chronic since high school. Also, Haynes appears to have been referred to a doctor for diabetes-related problems twice in the summer of 1986 and worked less than a month for NSBS before having to miss work for dizziness and problems with her legs. Without any expert medical opinion, however, the Commission cannot conclude that NSBS established a reasonable possibility that Haynes would experience dizziness or blurred vision (related to her diabetes) while driving a school bus, and thereby endanger both herself and the school children she transported.

The primary defense of NSBS is enmeshed with the rule invalidated by the court in Bothum. That rule, Wis. Adm. Code sec. Trans 110.09 (2) (f), prohibited the State DMV from granting a school bus driver's license to any person using a hypoglycemic agent such as insulin to control diabetes. Only diet controlled diabetics were eligible to drive school buses under this rule. The rule contained no exceptions.

Bothum was decided on October 23, 1986. In invalidating the above rule, the court stated:

"The Department also argues that the blanket code provision is a valid standard for licensing school bus drivers because it bears a rational relationship to the safe transportation of children. No one can dispute that safety concerns are especially important in the regulation of school transportation systems. However, it is for the Legislature, not. the courts, to balance the various interests at stake; and that body, recognizing the sometimes conflicting need to protect handicapped workers from discriminatory treatment in the workplace, could reasonably rely on a case- by-case method of striking the balance, leaving the Department to determine, in each case, whether the safety concerns surrounding a particular driver's handicap are paramount." 134 Wis. 2d at 382-83.

Even before Bothum, was decided, by emergency rule effective May 19, 1986, and by permanent rule effective December 1, 1986, Wis. Adm. Code, sec. Trans 110.14(1)(b) was created to read:

"When the application of s. Trans . . . 110.09 . . . is at issue, the medical review board may assess the person's medical history and may recommend that an exception to these sections be granted by the department if, in the medical review board's opinion, the person's medical condition does not impair the person's ability to operate a school bus." (Sec. Trans 110.14 (1) (b) was repealed and recreated as sec. Trans 112.20.(2), effective April 1, 1991.)

In this case, when Michler suspended Haynes and refused to allow her to continue to drive a school bus until she made the State aware of her condition and the State had approved permitting her to continue as a school bus driver, Michler believed that any insulin-dependent person would not be permitted by the State to have a school bus driver's license. Michler apparently was unaware of the creation of Wis. Adm. Code, sec. Trans 110.14 (1) (b). Based on his understanding of the Administrative Code, he simply could have told Haynes that she did not hold a valid school bus drivers' license and fired her. To his credit, however, because Michler also believed that the State DMV properly determines who may be licensed as a school bus operator, and not the NSBS (TR 61), Michler did not terminate Haynes' employment when he believed that the State would not license her, but instead only suspended her until the State could make that determination.

Michler's actions are consistent with other obligations imposed on employers of school bus drivers by administrative rule as well as the Statutes. Wis. Adm. Code, sec. Trans 300.15(1), provided that "[e]ach employer of school bus personnel shall be responsible to determine that only qualified personnel operate school buses . . ." Section 343.35(2), Wis. Stats., provided that "[n]o person shall authorize or knowingly permit a motor vehicle owned by the person or under the person's control to be operated . . . who is not authorized under this chapter to operate a motor vehicle." Moreover, Haynes never reported her diabetes condition to the State. (TR 31-32) This appears to be in violation of Wis. Adm. Code, sec. Trans 110.04(10), which then directed that "[s]chool bus operators shall report to the department any physical . . . condition identified in this chapter that, is new or has changed significantly since previously reported." As a result of these specific obligations on both Michler and Haynes, it may reasonably be concluded that (1) her "qualification" to operate a school bus under the administrative code rule quoted above, as well as (2) her "authorization" under the Statutes referred to above would have been in serious doubt.

Under the circumstances, since only the State DMV determines who is qualified to be licensed as a school bus driver, since employers of school bus drivers are responsible to make sure that only qualified personnel operate school buses, and since operators are obligated to report physical conditions affecting qualification, it is the Commission's determination that Michler reasonably suspended Haynes until the State DMV could determine if her diabetes condition should disqualify her from driving a school bus. In terms of the WFEA, since it is the State DMV (through its licensing requirement) rather than the employer who determines whether an individual is qualified to operate a school bus safely, an employer fulfills its duty of individual evaluation by suspending the individual driver until the State can make its determination. This preserves the status quo in the balance between safe transportation of school children and equal employment opportunity for handicapped individuals, until the body designated by the Legislature to strike that balance, is able to make that determination. In essence, Haynes' diabetes condition was reasonably related to her ability to adequately undertake the job-related responsibilities of a school bus driver during the period of her suspension.

The contrary approach taken by ALJ Grandberry and supported by Haynes is unreasonable. Grandberry reasoned that the State DMV rules only refer to the issuance and denial of school bus driver licenses, and do not prevent an employer from employing an insulin-dependent diabetic as a school bus driver. (Finding of Fact #20; Conclusion of Law #4) Moreover, Grandberry reasoned that Haynes had a valid school bus driver's license when she was suspended by Michler. (Finding of Fact #20) The obvious fallacy in Grandberry's reasoning is that the State DMV never had the opportunity to consider whether Haynes' diabetes should disqualify her as a school bus driver because she never informed the State of her condition, and that so long as Haynes had a valid driver's license (in part because she never reported her diabetes), an employer like NSBS, who is responsible for safe transportation of school children, must continue to permit someone like Haynes to drive a school bus until the State DMV somehow discovers her condition and invalidates her license. Would the ALJ have reached the same conclusion if Haynes had become blind in April of 1986, but her blindness had not been reported to the State Division of Motor Vehicles and she still had in her possession a "valid" school bus driver's license in December 1986? The Commission thinks not.

Bothum comments on the legislative recognition that the safe transportation of school children must be balanced against the need to protect handicapped workers from discrimination in the workplace, but the method of striking that balance is a case-by-case determination by the State Division of Motor Vehicles whether safety concerns surrounding a particular driver's handicap are paramount. 134 Wis. 2d at 382-83. The suspension of Haynes by NSBS, pending the determination by the State DMV of Haynes' ability to continue to drive a school bus, allowed that balance to be struck while still preserving the safe transportation of school children in the interim.

In her brief to the Commission, Haynes cites Kelley v. Bechtel Power Corporation, 633 F. Supp. 927 (S.D. Fla. 1986), in support of Grandberry's decision. As pertinent to Haynes' case, Kelley stands for the proposition that an employer must make an individualized determination of future hazard, supported by sufficient, relevant medical information. 633 F. Supp. at 933- 35. This proposition with respect to an individualized evaluation is already embodied in the WFEA, sec. 111.34 (2) (b)-(c), Wis. Stats., and with respect to medical information is not applicable in Haynes' case because of the licensing requirements and the consequent responsibility of the State DMV (and its medical review board) to gather and evaluate medical information concerning an individual's ability to drive a school bus--not the employer of the individual. Thus, the commission believes the special situation involving licensing makes this case distinguishable from Kelley.

Since the Commission is satisfied that NSBS fulfilled its duty to individually evaluate Haynes, the Commission reverses the ALJ's amended decision and dismisses Haynes' complaint.

150

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