JOEL MARIE ELMHORST, Complainant

SCHOOL DISTRICT OF NEILLSVILLE, 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 October 31, 2005
elmhojo . rsd : 125 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The ALJ affirmed the department's Preliminary Determination, which dismissed the complainant's complaint on the grounds that she failed to state a claim for relief under the Wisconsin Fair Employment Act. The complainant petitions for a review of the ALJ's decision.

In her February 22, 2005 discrimination complaint filed against the respondent, the complainant asserted that the school board "used a 0-tolerance policy to terminate me from my job because of a mistake I made" and that "similar incidents by other employees have happened before and one has happened since my termination but all other employees were reprimanded but not discharged." The complainant did not check any of the boxes on the complaint form that described the various bases of discrimination protected under the Act. Instead, the complainant wrote on a post-it note which she attached to the complaint, "I don't think any of these boxes fit my case." An equal rights officer issued a Preliminary Determination dismissing the complainant's complaint on the grounds that it was based on a reason that is not protected under the Act.

In her appeal from the Preliminary Determination, the complainant, who had worked as a school bus driver for the respondent, related the events that preceded her termination of employment. The complainant indicated that after leaving a child on the school bus, on September 10, 2004, respondent personnel questioned her about her ability to do the job and had her show them that "I was capable of doing a D.O.T. state bus inspection inside and outside of the entire bus." The complainant asserted that in a meeting with her supervisor on September 12, 2004, "He said that leaving a child on the school bus was not the issue. I realized then that he was making an issue of my health and talking to others of me being incapable of doing my job. I admit that I am very overweight but I do hold a valid D.O.T. license with school bus endorsement and state required medical card." The complainant related that on October 11, 2004, the school board determined that leaving a child unattended was gross misconduct, that a zero tolerance policy concerning child safety was adopted just for this incident and that on the recommendation of her supervisor the school board voted to terminate me. The complainant asserted that in similar cases of children being left unattended previously, no one was given more than an oral reprimand, and that two days after her discharge the school board gave another employee a written reprimand for leaving a child unattended. Referencing the incident after her discharge, the complainant asserted, "I feel it is proof that I have not been treated equally, and I feel that they should not be allowed to discriminate against overweight people."

The ALJ found that although the complainant offers additional detail to her complaint in her appeal letter, her claim that the respondent discriminated against her because she is overweight does not state a claim for disability discrimination. Citing Wis. Stat. § 111.32(8), the ALJ stated that in order to assert that she is an "individual with a disability," the complainant would have had to allege that she: (a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; (b) Has a record of such impairment; or (c) Is perceived as having such an impairment. The ALJ stated that the complainant has not asserted that her overweight condition constitutes a physical impairment "which makes achievement unusually difficult or limits the capacity to work" or that the respondent perceived her to have such an impairment, citing Alexander v. Aldridge, Inc. (LIRC, 10/21/91).

In her petition for review, referencing the ALJ's finding cited above, the complainant asserts that the ALJ states:

I claim to be disabled because I am overweight. This is incorrect. I do not nor did I ever claim to be disabled. It is the Neillsville School Administration that "perceived" me as having a disability. (Emphasis in original.)

The complainant then goes on to again include assertions that she was called into a meeting with respondent personnel on September 10, 2004, and that most of the time was focused on her physical capabilities, which included having a bus brought to the location and having her do a DOT inspection. Also, she again references the meeting with her supervisor on September 12, 2004, asserting that her supervisor told her she " 'would never drive again' because she could not physically do the job", and "even suggested that I apply for disability and go on Medicaid since I would be losing my family's health insurance." The complainant also states that she never marked any box on her original complaint because she did not know she should have written, "I was perceived to be disabled" in the box.

First of all, the commission questions whether it is appropriate that the complainant should be allowed to attempt to save her claim from dismissal for failure to state a claim under the Act by now asserting for the first time in her petition to the commission that the respondent perceived her as having a disability. This is a fundamentally different claim from her February 22, 2005 complaint, on which she indicated that none of the listed bases of discrimination protected under the Act fit her case, and in her subsequent written appeal from the department's Preliminary Determination, where she simply alleges that she was discriminated against because she was overweight. As provided under DWD 218.05(1), the department is responsible for reviewing every complaint to determine, among other things, "whether the complaint states a claim for relief under the act", and if a timely appeal is filed from a department preliminary determination order dismissing a complaint for failure to meet the requirements of 218.05(1), DWD 218.05(3) provides for a review of the matter by an administrative law judge who shall issue a decision "which shall either affirm, reverse, modify, or set aside the preliminary determination." If the administrative law judge affirms the preliminary determination, the matter may be appealed to the commission for a review of the decision and order of the administrative law judge. In short, the process provided under DWD 218.05 seems to contemplate that the claimed reasons for why the complaint sets forth a claim for relief under the Act are to be provided prior to the point at which the commission reviews the decision and order of the administrative law judge.

The complainant has indicated that perhaps her complaint was not made clear because she does not have an attorney to represent her, or due to her lack of legal understanding. However, a party that chooses to proceed without legal counsel is held to the same standards of proof as if they were represented; the law is no different for those who appear pro se than for those who appear with representation. Ramada Inn v. LIRC, Case No. 02CV802, Eau Claire Co. Cir. Ct., March 12, 2003.

However, even assuming that it is appropriate that the complainant's petition for review assertions be considered in determining whether she has stated a claim for relief under the Act, the commission finds that the complainant has failed to state a claim for relief under the Act.

As correctly noted by the ALJ, the Act defines an "Individual with a disability" to mean 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). Based on the assertions made by the complainant, what the complainant is asserting is that because she is "very overweight" the respondent perceived her as having a disability.

However, in order to state a claim of discrimination on the basis of a perceived disability, a complainant must allege facts showing that she or he is perceived as having a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work. "[T]he element of 'impairment' is satisfied by showing either an actual lessening, deterioration, or damage to a normal bodily function or bodily condition, including the absence of such function or condition, or by showing that the condition perceived by the employer would constitute an actual impairment if it in fact did exist." La Crosse Police and Fire Commission v. LIRC, 139 Wis. 2d 740, 760, 407 N.W.2d 510 (1987)(emphasis added). The commission has held that an "overweight condition" cannot be considered a disability where there was no indication of glandular or other physiological disorder and the complainant's weight was totally within the complainant's control. Plizka v. A.O. Smith (DILHR Comm., 08/19/75). See also, Lade v. Milwaukee County (LIRC, 10/05/77)(The complainant's weight was within his self-control; the complainant's obesity is not a handicap within the meaning of the Act). The complainant has provided no information as to her actual weight, or any information about her height. More importantly, the complainant has made no factual assertion which indicates that the respondent believed that she was overweight due to a glandular or other physiological disorder, or that it believed that her weight was not something that was totally within her control. Stated differently, the complainant has made no factual assertion which indicates that the respondent perceived her as having a condition that would constitute an actual impairment if it in fact did exist. The complainant has therefore failed to state a claim for relief under the Wisconsin Fair Employment Act.

cc: Attorney Leslie A. Sammon

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