TIMOTHY F HOFFMAN, Complainant

CITY OF FOND DU LAC, 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 November 21, 2005
hoffmti . rsd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Timothy Hoffman petitions for a review of the ALJ's decision which concluded that he failed to prove there was probable cause to believe that the respondent violated the Act by failing to accommodate a disability and by discharging him because of a disability. Hoffman alleges that he suffers from alcoholism and that it is a disease.

While alcoholism is a disease, its diagnosis is a matter of expert medical opinion proved by a physician and not by a layman. Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 2d 393, 407, 273 N.W.2d 206 (1979). If an individual's drinking was volitional it hardly can be classified as a disability within the meaning of the WFEA. 86 Wis. 2d at 408. See also, Schleicher v. County of Dodge (LIRC, 10/17/03)(As recognized in Connecticut General Life Ins. Co. (citation omitted), a drinking or alcohol abuse problem may or may not be a disability, depending on whether it has progressed to the state that it is non-volitional. Establishing that such a non-volitional condition exists requires that complainant introduce competent, expert medical evidence to this effect); Geske v. H.C. Prange Co. (LIRC, 12/09/93)(A "drinking problem", for example, may or may not be a handicap, depending on whether it has progressed to the stage that it is "non-volitional" (citing Connecticut General Life Ins. Co.).

Hoffman testified that over the course of his employment with the respondent, particularly in 1982 and the latter part of 2002 and into 2003, he had discussions with management about drinking too much, having a problem with alcohol and receiving treatment for his drinking. However, Hoffman presented no admissible evidence to establish that he suffered from the disability of alcoholism.

Hoffman argues, however, that his medical records relating to a 28-day alcohol and drug treatment program he went through at St. Agnes Hospital in 1982 should have been received at the hearing. However, the ALJ did not act improperly in refusing to receive those records at the hearing because the certification for those records states the records consist of 18 pages while there were actually 19 pages, thus calling into question the reliability of these records in their entirety because there was no way of knowing which page of those documents was not part of the originally certified documents. However, even had these records been received at the hearing there was no medical documentation contained therein that Hoffman's drinking problem had progressed to the state that it was non-volitional, and thus, that he suffered from the disability of alcoholism. The consultation report of the physician who examined Hoffman at the beginning of Hoffman's treatment listed as his impression, "Alcohol abuse with possible early alcohol dependence", and this same physician's final diagnosis listed on Hoffman's discharge summary was simply, "Alcohol abuse". Nothing in those reports in any way indicates that Hoffman's drinking or alcohol abuse problem had progressed to the state that it was non-volitional.

Hoffman apparently also claims that he was perceived as having a disability, asserting on appeal that Mark Lentz, the respondent's Director of Public Works testified that he was discharged because he ran out of sick leave. Hoffman asserts that sick leave is for medical problems, and that the employer "knew this, I told them." While Hoffman may have utilized sick leave by calling in sick and eventually ran out of available sick leave, at no time had he ever provided the respondent with a definitive report from a health professional about the nature of his substance abuse problem for which he had been using sick leave. "Basically, a complainant can not prove a 'perceived' substance abuse problem adequate to meet the statutory test [whether the substance abuse problem has progressed to the state that it is non-volitional] unless there is direct evidence that the agents of the respondent alleged to have had the 'perception' that there was a problem, had actually been provided (and accepted) information that what the person was suffering from was medically assessed as non-volitional and thus potentially within the Connecticut General standard for a handicapping substance abuse problem." Geske, supra.

Accordingly, the commission has affirmed the decision of the administrative law judge.

NOTE: In his written arguments to the commission Timothy Hoffman also complains about being denied unemployment benefits. However, the issue before the commission involves Hoffman's complaint of alleged disability discrimination, not his unemployment insurance claim.

cc: Attorney Mary E. Nelson

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