Wis.LIRC ER Decision: Kilgore - April 30, 1998 - Procedure - witnesses - Respondent's representative not designated as a potential witness; Disability discrimination - employer awareness of disability; ALJ bias alleged

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BRIAN KILGORE, Complainant

WISCONSIN INDIANHEAD TECHNICAL COLLEGE - SUPERIOR, Respondent A

WISCONSIN INDIANHEAD TECHNICAL COLLEGE, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199602443, EEOC Case No. 26G961460

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.

DECISION

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

Dated and mailed: April 30, 1998
kilgobr.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant's petition for commission review contains numerous arguments in support of reversal, the most significant of which will be addressed herein. First, the complainant argues that at the hearing the respondent's representative refused to be sworn in and answer any questions. However, the complainant failed to identify the respondent's representative as a witness prior to the hearing, as required under Wis. Admin. Code � ILHR 218.17, and the employer's representative was not on notice that he would be called upon to testify. Under the circumstances, the administrative law judge's ruling that the employer's representative was not required to testify was appropriate.

Next, the complainant argues that all custodians had keys to the kitchen area and frequently entered the kitchen, but that he was the only staff member who was disciplined for doing so. He also points out that the administrative law judge found that at least one other custodian had been warned about looking through desks. However, while the complainant maintains that he was disciplined more severely than other workers because of his handicap, the evidence adduced at the hearing did not support such a finding. Although other workers may have looked in desks or entered the kitchen area, the evidence did not establish that these workers were found taking food from the kitchen, as the complainant did. (1 ) In the absence of evidence indicating that other workers engaged in similar conduct but were accorded more favorable treatment, the complainant's allegations of disparate treatment are unavailing.

Moreover, even if the complainant had succeeded in establishing that he was treated less favorably than other workers, the record contains nothing to link that treatment to the complainant's alleged handicap status. Although the complainant testified that at the time he was hired he told his supervisor he was an alcoholic, the complainant remained sober during his entire four- year period of employment, and the commission sees no reason to believe that his separation was related to that factor. While the complainant argues that it is unreasonable to believe that the respondent was unaware his conduct was related to alcoholism, contending that it should have suspected this because his behavior was "out of character," nothing in the record supports this theory. The mere fact that the complainant's conduct was unusual does not mean that the respondent would have understood it to relate to the complainant's history of alcoholism or, more particularly, to "dry drunk syndrome." Indeed, the complainant himself did not learn that he suffered from "dry drunk syndrome" until after his separation from employment had already occurred.

The complainant maintains that the administrative law judge had a predetermined opinion about his case. In support of this assertion, the complainant indicates that in a telephone conversation with the administrative law judge, during which the complainant requested a postponement for the purpose of retaining an attorney, the administrative law judge commented that maybe the complainant could not get an attorney because his case had no merit. The commission agrees that a possible reason an attorney would not take a case is because he or she believes it lacks merit, and a general statement to that effect on the part of the administrative law judge does not suggest that the administrative law judge prejudged the complainant's case. To the contrary, based upon its independent review of the record, the commission sees no reason to believe that the administrative law judge afforded the complainant anything other than a full and fair hearing on the merits of his case.

The commission has considered the remaining arguments raised in the complainant's petition, but finds them unpersuasive. Because the commission agrees with the administrative law judge that the evidence presented at the hearing failed to demonstrate probable cause to believe the complainant was discriminated against in the manner alleged, the dismissal of the complaint is affirmed.

cc: Attorney Stephen L. Weld

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Footnotes:

(1)( Back ) Although in his petition the complainant makes reference to "the cake incident," in which two custodians allegedly stole half a cake from a locked area, the hearing record contains no evidence on this point.