RANDALL H. HORNER, Complainant

VILLAGE SQUARE APARTMENTS, Respondent A

JOHNSTOWN PROPERTIES, INC., Respondent B

SUSAN BROIHAHN, Respondent C

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on November 22, 1989. Complainant subsequently filed a timely petition for Commission review of the matter. Although a briefing schedule was requested and established, the parties subsequently tendered their post- hearing briefs previously submitted to the ALJ for consideration by the Commission.

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

The decision of the Administrative Law Judge (copy attached) is modified as follows:

1. In paragraph 3 of the FINDINGS OF FACT, the second-to-the-last sentence is deleted. The following sentence is added as the last sentence of that paragraph:

"After his hire, Complainant requested and was granted permission by Broihahn to take a new-hire packet home so his wife could assist him fill it out.,,

This modification has been made to make the findings better conform with the evidence.

2. In paragraph 4 of the CONCLUSIONS OF LAW, the phrase "did not violate" appears twice, and therefore the second such phrase is deleted.

As modified, the decision of the Administrative Law Judge is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed May 21, 1991

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

The issue presented in this case is whether the Complainant was discriminated against on the basis of handicap in regard to his failure to be promoted from his hired position of Project Improvement (PI) person to the position of Maintenance I Worker.

In a handicap discrimination case arising under the Fair Employment Act, a complainant alleging such discrimination has the burden of proving that he or she is handicapped within the meaning of the Act, and that an employer's discrimination was on the basis of handicap. American Motors Corp. v. LIRC, 119 Wis. 2d 706, 709-710, 350 N.W.2d 120 (1984);  Boynton Cab Co. v. ILHR Dept., 96 Wis. 2d 396, 406, 291 N.W.2d,850 (1980). If the complainant meets that burden of proof, the burden shifts to the employer to prove that the complainant's "handicap is reasonably related to the individual's ability to adequately undertake the job-related responsibilities of that individual's employment . . ." Section 111.34(2)(a), Wis. Stats.

The parties stipulated at the hearing that the Complainant was diagnosed as dyslexic in February, 1988. As argued by Respondent, since dyslexia is a condition existing from birth, it is safe to assume that the condition existed when Complainant was employed by Respondent in 1987. (1)   The dispute in this case centers around whether the Complainant established that the employer's discrimination was based on his handicap, however.

In dismissing complainant's claim of handicap discrimination, the Administrative Law Judge found as follows:

"5. Horner had difficulty reading and told Broihahn that his difficulty was because of lack of education when he was first interviewed for the PI position. Broihahn did not know Horner had a learning disability known as dyslexia when she hired him nor had she any reason to believe so as all she was told by Horner was that he could not read or write very well due to lack of education.
. . .
8. At no time, during his hire, employment or resignation, did Horner represent to the Respondent that his inability to read or write was caused by anything except lack of education.

9. The Respondent did not perceive Horner to be handicapped within the meaning of the Wisconsin Fair Employment, nor did they have any reason to perceive him as handicapped.

10. Horner was not promoted or offered the Maintenance I position because Broihahn believed that he could not read well enough to perform the duties involved. The work that Horner was performing had been satisfactory and Broihahn was pleased with his performance as a temporary PI employe. The duties Horner had been performing did not involve the need for reading and writing."

The ALJ thus determined that the employer was unaware of the Complainant's handicap and therefore could not have discriminated against him on that basis.

On appeal, citing the statutory definition of handicap contained in sec. 111.32(8), Wis. Stats., (2)  and apparently in reference to whether it was established that there was discrimination on the basis of handicap, the Complainant argues that the employer need not know the exact cause of the handicapping condition in order to constitute handicap discrimination. However, the testimony by Broihahn -- testimony which was accepted by the ALJ -- shows that she did not know Complainant had any handicap. Broihahn testified that Complainant had explained to her that he had a second or third grade reading and writing level and that her understanding was simply that Complainant had a very low reading ability because he just never got the education. A lack of an ability to read or write due to lack of education is not a handicap. Complainant's further assertion that there was testimony by Broihahn herself that she knew Complainant had to complete the fourth grade several times before being identified as having a learning disability, and that he had been placed in special education classes is simply not borne out by the record.

At the hearing Complainant sought to challenge Broihahn's stated understanding about his reading and writing difficulties.

Complainant introduced Broihahn's transcript of course studies when she attended U. W.-Oshkosh, contending that Broihahn's course study had specifically focused on areas related to special education and that "she knew exactly what she was dealing with when she had Horner as an applicant." However, Broihahn testified that she had had four or five majors in school, that she was not very serious about school when attending U.W.- Oshkosh, and that she had withdrawn from many of her courses. Broihahn's college transcript confirms her testimony as it shows that out of 36 courses signed up for Broihahn had withdrawn from 15 of those courses (and failed three others). Broihahn had attended Oshkosh between the fall of 1977 and spring of 1980.

Broihahn did complete two courses in communication disorders called Introduction to Speech and Hearing Therapy, and Phonetics. She testified, however, that she did not study about dyslexia in either of those courses. One education course that Broihahn withdrew from was called The Exceptional Child. Broihahn was shown a document purporting to be a course description for that course which identified "learning disabilities" as part of the course study. Broihahn could not remember if she had been in that course for a month and testified that she did not remember anything in particular about the course. With respect to another education course that Broihahn did complete, Child Development and Learning Process, Broihahn testified that she did not recall specifically, but thought that that class had dealt more with how kids develop than with disabilities.

Complainant also challenged Broihahn's awareness of his handicap based on the remarks she made on Complainant's "Employe Status Change Notice" after he had provided written notice of his termination of employment with Respondent. Broihahn's statement is as follows:

". . . Randy had the impression that when we hired him, should a full-time position open, he would definitely have the job. A position did open, however, due to his disability, he was not hired because it would limit his capabilities to perform the job requirements."

However, Broihahn testified when she completed the form using the word "disability" she did not mean it as a handicap, she was referring to Complainant's lack of education, his inability to read and write past the second or third grade level. Broihahn testified that at the time, she thought the words "disability" and "inability" were synonymous and that she used those words interchangeably. While Broihahn's use of the word "disability" on Complainant's Status Change Notice could certainly be subject to differing interpretations, Broihahn's explanation for its use cannot be said to be inherently incredible.

Complainant can point to no specific evidence which would discredit Broihahn's testimony regarding her college experience or understanding about the meaning of the word "disability." Broihahn was consistent and steadfast throughout her testimony that everything she had ever heard regarding Complainant's reading and writing difficulties was that he just lacked the education. Moreover, the fact that during a meeting Complainant had with Broihahn just prior to his resignation, and again several times in his written resignation letter to Respondent, Complainant himself referred to his failure to be promoted as being caused by his "lack of education," provides further credence to Broihahn's testimony regarding her understanding about the Complainant's reading and writing difficulties. (3)

On appeal, the Complainant apparently argues that there was other alleged conduct by Broihahn, however, which impeaches her credibility. Namely, that she allegedly: (1) Regularly made employes tear up timecards and submit new ones with false hours because she would not pay overtime even though she had pre-approved the overtime; and (2) Identified a former employe (Dennis Mehn) as residing in a unit in 1987 and sent him a W-2 for income in 1987 in order to obtain a commission bonus for having all units rented when Mehn did not reside at Respondent during 1987. The Commission does not find these arguments persuasive. On the issue of overtime, there was testimony by Complainant's own witnesses that: (1) At certain times things were real hectic at Respondent and Broihahn may not have remembered granting approval for payment of overtime; (2) During one period of time Respondent's policy on whether payment would be given for overtime work changed frequently causing some confusion; and (3) When not paid overtime, employes were asked to take comp time in lieu of pay. Secondly, Complainant's charge with respect to the 1987 W-2 statement sent to Mehn is simply not supported by the record. First of all, the only reference regarding a bonus for full occupancy came from James Jones -- an individual whose testimony the ALJ found not to be credible (4) -- and his testimony about a bonus was made in connection with an assertion that Broihahn would write off work orders as being completed at the end of the week when it would actually be the following Monday before the work orders could be completed. Secondly, Mehn himself was not certain that he had in fact not received a check in 1987 representing the comp time he had accumulated before his employment was terminated. Moreover, he never spoke to Broihahn about the matter.

Based upon all of the above, the Commission concludes that the Complainant has not shown by a preponderance of the evidence that Respondent discriminated against him on the basis of handicap.

125

Appealed to Circuit Court.  Affirmed October 1, 1992. 

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(1)( Back ) Webster's New World Dictionary, (Second College Edition) 1972, defines dyslexia as an impairment of the ability to read, often as the result of a genetic defect or brain injury.

(2)( Back ) Section 111.32(8) provides as follows: "'Handicapped individual' 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."

(3)( Back ) Complainant's wife assisted him in the preparation of his resignation letter.

(4)( Back ) The Commission agrees with the ALJ's assessment of Jones' credibility. His credibility was called into question based on the fact that he had falsified his employment application with Respondent, his employment with Respondent had ended on a "sour note" and he had failed in his attempts in discrimination and worker's compensation claims filed against the Respondent.

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