RICHARD L HERMANN, Complainant

CELLU TISSUE HOLDINGS INC, Respondent A

CELLU TISSUE CORP, Respondent B

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The procedural introduction to the decision is modified to reflect the fact that the complainant was not represented by Richard J. Craanen of the Craanen Law Offices, 325 North Commercial Street, Suite 300, P.O. Box 695, Neenah, Wisconsin 54957-9695, but by John S. Williamson Jr., 103 W. College Ave., Ste. 1203, Appleton, WI 54911.

2. In paragraph 2 of the administrative law judge's FINDINGS OF FACT the date "February of 2003" is deleted and the date "February of 2002" is substituted therefor.

3. In paragraph 7 of the administrative law judge's FINDINGS OF FACT the name "Herman" is deleted and the name "Hermann" is substituted therefor.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed November 14, 2005
hermari . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In his petition for commission review and supporting briefs the complainant argues that he should be considered an individual with a disability under the Wisconsin Fair Employment Act (hereinafter "Act"), notwithstanding the fact that the injury he sustained from his involvement in a car accident was not a permanent one. The complainant contends that, although the commission has consistently held that temporary conditions are not covered disabilities, this is contrary to the legislative intent behind the statute, and directly contradicts the language of the statute. The complainant maintains that the portion of the statute which covers individuals who have "a record of such an impairment" is meant to apply specifically to individuals who no longer have impairments. The complainant further maintains that the commission's holding in Erickson v. Quad Graphics (LIRC, May 25, 2004), that a physical impairment must be permanent to constitute a disability under the Act, directly conflicts with the "implicit" holding of Target Stores v. LIRC, 217 Wis. 2d 1 (Ct. App. 1998), that a non-permanent physical impairment may be a disability under the Act. The complainant's arguments fail.

Although the statute does not specifically refer to "permanent" disabilities, it contains no wording to suggest that it is meant to apply to temporary medical conditions. The fact that the statute is to be construed liberally does not mean that the legislature contemplated it would cover transient medical conditions, nor does the commission see any reason to believe that the portion of the statutory definition of an individual with a disability which includes a person with "a record of such an impairment" can reasonably be construed as a reference to someone who no longer has the impairment. The commission's decision in Swanson v. State Street Stylists (LIRC, Dec. 26, 1997), the sole case authority cited by the complainant in support of this proposition, does not warrant such a conclusion. The commission also notes that there is nothing in the Target Stores decision which suggests, either implicitly or explicitly, that temporary impairments may be covered disabilities. The complainant in Target Stores had sleep apnea. Although she was exploring treatments that may have resolved some of her symptoms, the fact that her symptoms might be treated did not render her medical condition a temporary one. There was no indication that the complainant's sleep apnea would ever go away.

While, as indicated above, the commission is unpersuaded by the complainant's arguments that a temporary health condition is covered under the Act, it should also be noted that those arguments are rendered essentially moot by the fact that the court of appeals recently issued a decision upholding the commission's decision in Erickson. The court indicated that the commission's interpretation of the statute as only covering permanent impairments is a longstanding one, and that if the legislature considered this reading of the statute to be inappropriate it could have revised the statute to include temporary impairments. Erickson v. LIRC and Quad Graphics, Inc., 2005 WI App 208, ___ Wis. 2d ___, 704 N.W.2d 398 (2005). A petition for review by the Wisconsin Supreme Court was denied, leaving the court of appeals' decision as the final disposition of the matter.

In his briefs to the commission, the complainant also makes an argument that the respondent failed to present competent evidence of its reason for denying him a job. This argument, which presumes a finding that the complainant is an individual with a disability for purposes of the Act, fails. At the hearing the respondent's mill manager, Keith Schenk, testified that he discussed the hiring criteria with the individuals who made the hiring decision: the department manager, who was under Schenk's direct supervision, and the human resources manager. Schenk testified as to difficulties he faced in working with the complainant in the past, at least some of which he conveyed to the individuals who made the ultimate hiring decision. Schenk indicated that he could have fought for the complainant's job, but did not do so. Schenk also stated that, in his discussion with the department managers, no mention was made of using medical restrictions as a hiring criterion and, further, that he was not aware the complainant had any restrictions. Finally, he testified that the respondent did hire quite a few employees who had sustained work related injuries. Based on the foregoing, even if the complainant had demonstrated he was an individual with a disability within the meaning of the Act, the commission would be satisfied that the record contains sufficient evidence to warrant a conclusion that the adverse hiring decision was made for reasons other than disability.

The commission has considered the remaining arguments raised by the complainant, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant failed to demonstrate he was discriminated against in the manner alleged, the dismissal of his complaint is affirmed.

cc:
Attorney John S. Williamson, Jr.
Attorney Stacie J. Andritsch

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