ROBERT C. HERMANN, Complainant

ORT TRUCKING COMPANY, Respondent

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 July 1, 1994, dismissing the complainant's complaint of alleged handicap discrimination. The complainant filed a timely petition for commission review of the ALJ's decision.

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

The decision of the administrative law judge (copy attached) is modified as follows:

1. The complainant's name which has been spelled as "Herman" throughout the decision is deleted and the spelling "Hermann" is substituted therefor. Also, in the second sentences of paragraphs 11 and 12 of the FINDINGS OF FACT, the complainant's name should be capitalized.

2. In the third line of the quoted language found in paragraph 10 of the FINDINGS OF FACT, the word "and" is inserted between the words "local" and "State."

As modified, the decision of the administrative law judge is AFFIRMED and shall stand as the FINAL ORDER herein.

Dated and mailed December 13, 1994
125 / A

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The complainant was employed as an interstate truck driver for the respondent. The complainant has diabetes mellitus. He alleges handicap discrimination with respect to termination of his employment.

A physical examination conducted by the New London Medical Facility for the complainant's Department of Transportation certification revealed an unacceptable level of glucose in his urine. Under s. 391.41 of the Federal Motor Carrier Safety Regulations, indications of uncontrolled diabetes disqualify the complainant from operating a motor vehicle.

As a result of the test performed by a doctor at the New London Medical Facility, the respondent would not permit the complainant to drive until he got his blood sugar level under control. The respondent offered the complainant a different job in the mean time, which he refused. The respondent did not discharge the complainant. The complainant's claim of handicap discrimination comes because another doctor that subsequently examined him considered his blood sugar level to be acceptable and certified him as qualified to drive, but the respondent insisted on certification to drive by the New London Medical Facility.

On appeal from dismissal of his complaint of discrimination by the ALJ, the complainant notes his certification as qualified to drive by the second doctor and that s. 391.47 of the Federal Motor Carrier Safety Regulations provides for a resolution of disputes over medical evaluations. However, in view of the fact that the complainant's qualification to drive is governed by the Federal Motor Carrier Safety Regulations, and such regulations provide for resolution of disputes over conflicting medical evaluations as the complainant himself acknowledges, the respondent should not be held to have acted in violation of the Wisconsin Fair Employment Act unless and until there has been a determination under the federal safety regulations that the complainant is qualified to drive, and the respondent refuses to permit him to drive.

Based upon the above, the commission has affirmed the ALJ's dismissal of the complaint of alleged discrimination in this matter.

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