DAVID WOLLENBERG, Complainant

WEBEX, INC., Respondent

On September 20, 1990, an Administrative Law Judge (ALJ) for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter. The Complainant, David Wollenberg, filed a timely petition for review of the ALJ's decision by the Commission.

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

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

1. After the first sentence in Finding of Fact #11, add the following:

"However, there was seldom, if ever, any painting required in the Bearing Department."

2. The third sentence in Finding of Fact #13 is amended to read:

"Mr. Sommerfeld then suspended Mr. Wollenberg for one day because of what Mr. Sommerfeld believed to be Mr. Wollenberg's uncooperative attitude."

3. Add the following after the second sentence in Finding of Fact #15:

"Mr. Wollenberg made these threats on more than one occasion during this work shift. Four or five times during this shift he threatened specifically to shoot his foreman, Mr. Sommerfeld, and the vice president of Webex, Fred Zarembka."

4. The third sentence of Finding of Fact #15 is amended to read:

"Mr. Sommerfeld took this very seriously and first talked about this to Mike Pagel (who had been present when the threats occurred), with Mike Forest present, and then brought this to the attention of Fred Zarembka and Frank Weisner."

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

Dated and mailed November 8, 1991

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

The Wisconsin Fair Employment Act defines a "handicapped individual" as an individual "who has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work." Section 111.32(8), Wis. Stats. A "handicapped individual" also includes an individual who has a history of such an impairment or who is perceived as having such an impairment. Id. Thus, an employe may be "handicapped" if the employer perceives that the employe has an impairment even if the employe does not actually have an impairment. LaCrosse Police Comm. v. LIRC, 139 Wis. 2d 740, 763, 407 N.W.2d 510 (1987).

An "impairment" has been interpreted to mean "a real or perceived lessening or deterioration or damaging to a normal bodily function or bodily condition or the absence of such bodily function or condition." LaCrosse, 139 Wis. 2d at 761. Normally, proof of an actual handicap requires competent medical evidence. Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 273 N.W.2d 206 (1979).

In this case, the Complainant, David Wollenberg, presented no medical testimony or other competent medical evidence which would have established that the eye irritation of which he complained constituted an actual "handicap."  The testimony and/or evidence which Wollenberg presented at the hearing relative to his eye problem consisted solely of his own description of the symptoms he suffered when working around chemicals or other solvents used by Webex in its production facility.  This does not constitute competent medical evidence of a handicap.  It establishes merely that Wollenberg's eyes were sensitive to certain chemicals used by the employer.  In other words, Wollenberg has established that he suffers temporary eye irritation when exposed to certain chemicals, but not that his irritation constitutes some "lessening or deterioration or damaging to a normal bodily function or bodily condition or the absence of such bodily function or condition." LaCrosse, 139 Wis. 2d at 761.

As the Administrative Law Judge noted in his findings of fact and conclusions of law, Webex attempted on several occasions to accommodate Wollenberg's sensitivity by transferring him to jobs which would not place him in direct or even indirect contact with such chemicals.  Wollenberg attempts, in his petition for review, to submit a copy of a medical form, on which Wollenberg's eye problem is described.  First, the form may not be considered at this point, as it was not introduced as evidence at the hearing.  Second, even if the Commission were to consider the information available on this medical form, it establishes nothing more than what was established by Wollenberg's own testimony, namely, that his eyes became sore and watery when he worked around the particular chemicals used by Webex.  With respect to the latter, the Commission emphasizes again that the mere evidence of Wollenberg's eye problem is not sufficient to establish that he suffered from an actual "handicap" within the meaning of the Wisconsin Fair Employment Act.

Wollenberg also failed to establish that Webex, by its management personnel, perceived him to have a handicap.  He introduced no evidence of any remarks made by management personnel or actions taken by management personnel which would support a finding that anyone perceived him to be handicapped.  Rather, the evidence supports a finding that Webex perceived Wollenberg to be suffering from eye irritation when working around certain chemicals or mists, and that this was a temporary condition which eventually abated when he was transferred to a position and a department in which he had little or no contact with the chemicals or mists.  The recognition by management personnel at Webex that certain of its chemical products were irritating to Wollenberg's eyes, and its attempts to accommodate this problem, in no way suggests that Webex perceived Wollenberg to be handicapped.

Finally, even if one were to assume for the sake of argument that Wollenberg had established either actual or perceived handicap, the record strongly supports a finding that the reason he was ultimately discharged had nothing at all to do with his eye problem.  Wollenberg was discharged because of multiple threats to shoot those in management as well as his co-workers, which management considered very serious in view of his previous uncooperative attitude and the numerous negative statements he had made about Webex.  Under the circumstances, the commission considers the decision by Webex to terminate Wollenberg to be understandable, if not justified.

In sum, there is nothing in the record or in Wollenberg's petition for review which would warrant overturning the Administrative Law Judge's decision.

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