EARL SMITH, Complainant

ACTUANT CORP, 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 conclusions in that decision as its own, except that it makes the following modifications in order to more accurately reflect the evidence of record:

Numbered paragraph 3. of the FINDINGS OF FACT section is modified to read as follows:

Some time between October and December of 2004, Actuant awarded its hourly workers, including Smith, a wage increase. Smith received an increase of 23 cents per hour, which was the typical increase awarded.

Numbered paragraph 5. of the FINDINGS OF FACT section is deleted.

The CONCLUSIONS OF LAW section is deleted and the following substituted:

1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The complainant has the burden to prove that probable cause exists to believe that he was discriminated against on the basis of race and disability, and retaliated against for engaging in a protected fair employment activity, as alleged.

3. The complainant failed to sustain this burden.

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

Dated and mailed July 27, 2007
smithea . rmd : 115 : 9

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The following analysis applies the probable cause standard. 
 

Compensation

Smith alleges that he was discriminated against on the basis of his race and disability in regard to the pay increase he was awarded in or around November of 2004.

Actuant awarded pay increases based upon performance. In late 2004, Actuant awarded Smith a 23 cents per hour increase. The record shows that this was the typical increase awarded hourly workers at that time.

Although Smith testified that he did not receive the same raise as other workers, he did not identify in his testimony, either by name or by race/disability, other workers who received a larger raise than he did.

Smith failed to show that his increase was not commensurate with the performance rating he received or with his actual work performance, or that he was treated less favorably in this regard than similarly situated white or non-disabled workers.

As a result, Smith failed to sustain his burden to prove that probable cause exists to believe that he was discriminated against on the basis of his race or disability in regard to his compensation.  
 

Warning/suspension and discharge

Actuant instituted a new policy in January of 2005 which required all hourly workers to complete and sign an absence form whenever they did not work a scheduled shift for any reason. The record shows that, despite repeated counselings and a disciplinary warning/suspension, Smith refused to complete and sign an absence form unless he was absent due to a day of scheduled vacation. Smith received a disciplinary warning/suspension in February of 2005 for multiple failures to comply with this policy, and numerous subsequent reminders/counselings in February, March, and April of 2005 for continued noncompliance.

Smith served a disciplinary suspension on March 9 and was off due to lack of work on March 11, 2005. Despite several reminders by his supervisor (Riege) to complete absence forms for these two days, Smith refused to do so. As a result, Riege recommended to the Operations Leader (Larson), and to the Vice President of Human Resources (Mantilla) that Smith be terminated. This recommendation was accepted and Smith was terminated on April 11, 2005.

The record shows that every hourly worker other than Smith complied with the new policy, and completed and signed an absence form whenever they did not work a scheduled shift. As a result, Smith failed to show that he was treated less favorably than similarly situated workers.

Moreover, Actuant went to considerable effort to inform Smith of the policy, to clarify it for him, and to provide him numerous opportunities to comply with it. Despite this, Smith actively resisted compliance, and his resulting termination was reasonably justified, and not the result of discrimination.

Smith failed to sustain his burden to show that probable cause exists to believe that he was discriminated against based on race or disability when he was warned/suspended and when he was discharged.  
 

Retaliation

Smith alleges that he was retaliated against for engaging in a protected fair employment activity when he was warned/suspended, and when he was discharged.

The commission takes administrative notice of the fact that Smith filed an equal rights complaint with the EEOC on August 31, 2004. The record does not show, however, that Riege, the alleged retaliator, who effectively made the discipline and termination decisions, had any reason to be aware of this fact. As a result, Smith has failed to sustain his burden to prove that probable cause exists to believe that he was retaliated against as alleged. See, Pluskota v. Alverno College, ERD Case No. 200301041 (LIRC Oct. 21, 2005); Froh v. Briggs & Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004) (in order to prove retaliation, it must be shown that the alleged retaliator was aware, or had reason to be aware, of the complainant's protected fair employment activity).  
 

Disability accommodation

Smith alleges that he was discriminated against when Actuant failed to reasonably accommodate his disability. Smith does not specify what type of accommodation he was seeking.

The complainant's initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one 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.

An "impairment" for purposes of the WFEA is a real or perceived lessening or deterioration or damage to the normal bodily function or bodily condition, or the absence of such bodily function or condition. City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 407 N.W.2d 510 (1987). Proof of a disability requires competent medical evidence of the employee's alleged impairment. Erickson v. LIRC, 2005 WI App 208, 704 N.W.2d 398 (Ct. App. 2005). An impairment must be permanent in order to constitute a cognizable disability within the meaning of the WFEA. Erickson, supra.

The test to determine whether an impairment makes achievement unusually difficult is whether there is a substantial limitation on life's normal functions or on a major life activity. Target Stores, supra. By contrast, the "limits the capacity to work" test refers to the particular job in question. Brown County v. LIRC, 124 Wis. 2d 560, 369 N.W.2d 735 (1985). The inquiry concerning the effect of an impairment is not about mere difficulty, but about unusual difficulty. AMC v. LIRC, 19 Wis.2d 706, 350 N.W.2d 120 (1984); Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001).

The evidence of record does not establish that Smith's foot condition placed a substantial limitation on his normal life functions or on a major life activity, or limited his capacity to work. It is not enough to state a diagnosis or to list symptoms. A complainant must establish through credible and competent evidence how or to what degree these symptoms made achievement unusually difficult for him. See, Lester v. Compass Group USA, ERD Case No. 200203879 (LIRC March 22, 2005)(complainant's testimony that he suffered from foot infection which occasionally caused foot pain or swelling while standing or walking not sufficient to establish disability); Smith v. Aurora Health Care, ERD Case No. 199702722 (LIRC August 25, 2000).

The only evidence offered by Smith in this regard is his testimony that he sometimes experienced swelling in his right foot while working which occasionally required him to miss work. This testimony is not sufficiently specific to sustain the complainant's burden to prove a substantial limitation on a life function or activity, or on his capacity to work. See, Lester, supra.; Seil v. Dairy Farmers of America, ERD Case No. 200204104 (LIRC Aug. 26, 2005) (requirement that complainant medicate/monitor and restrict herself to full-time work, and her occasional absences due to symptoms of her diabetes, not sufficient to establish disability); Gramza v. Kwik Trip, Inc., ERD Case No. CR200004205 (LIRC Feb. 20, 2003); Moller v. Metavante, ERD Case No. 200103621 (LIRC Nov. 13, 2003).

In addition, the complainant failed to offer any competent medical evidence establishing that his foot condition placed a substantial limitation on his life functions or activities, or on his capacity to work, during the period of his employment for Actuant. See, Wal-Mart v. LIRC and Schneider, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633; Green-Brown v. Midwest Express Airlines, ERD Case No. CR200104139 (LIRC Sept. 16, 2004); Thompson v. Ashley Furniture Industries, Inc., ERD Case No. CR199903292 (LIRC July 15, 2003).

Smith argues by implication that the fact that the Veterans Administration (VA) classified his foot condition as a 40% disability, should establish the existence of a disability under the Wisconsin Fair Employment Act (WFEA). However, this is not a necessary conclusion since the record does not show that the criteria utilized by the VA for identifying disabilities are essentially identical to those set forth in the WFEA. See, Kirk v. Neenah-Menasha YMCA, ERD Case No. 199903613 (LIRC Feb. 14, 2003)(qualifying for disabled parking permit insufficient to establish disability under WFEA since requirements not shown to be identical).

Even if Smith had sustained his burden to prove that his foot condition qualified as a disability under the WFEA, the record does not show that Actuant failed to reasonably accommodate it.

It should first be noted that the record does not show that the VA document, the only document upon which Smith relies in this regard, references any accommodation. In addition, the record does not show that Smith requested any accommodation, other than occasional time off work, which the record shows he was permitted. In fact, Smith testified that he was able to do his job and walk and stand despite his foot condition.

There are two elements to the question of whether there was a refusal to reasonably accommodate an individual's disability within the meaning of Wis. Stat. § 111.34(1)(b): whether a reasonable accommodation existed, and, if so, whether providing such an accommodation would have worked a hardship on the employer. See, Gamroth v. DOC, ERD Case Nos. CR200308157, etc. (LIRC Oct. 20, 2006).

The initial burden is on the complainant to prove that a reasonable accommodation, i.e., one which would enable the complainant to perform the duties of his position, is available. See, Gamroth, supra. Smith failed to sustain this burden. First, Smith testified that he was able, without accommodation, to perform the duties of his position. Moreover, Smith failed to prove that a reasonable accommodation existed to control or reduce the swelling in his foot, the only symptom of his claimed disability.

As a result, the record does not support a conclusion that probable cause exists to believe that Actuant failed in its duty of reasonable accommodation.

cc: Attorney Linda M. Doyle

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