STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
ALFONSO FLORES, Complainant
AMCAST CORPORATION, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 9251193
An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 28, 1993. Complainant filed a timely petition for review by the commission.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
FINDINGS OF FACT
1. The respondent is an industrial corporation located in Cedarburg, Wisconsin.
2. On August 7, 1991, the complainant applied for an entry level production position with the respondent. On his employment application the complainant indicated that he did not have any physical condition which might limit his ability to perform the job and that he had not had a major illness or surgery in the last five years. The complainant also filled out a voluntary affirmative action questionnaire, but did not indicate that he had a handicap.
3. Oscar Reyes, the respondent's human resources coordinator, was solely responsible for interviewing and hiring hourly employes. On Monday, September 30, 1991, Mr. Reyes interviewed the complainant for an entry level production worker position.
4. The complainant was well qualified for the position in question.
5. During the course of the interview the complainant mentioned that he had a cataract in one eye and was considering undergoing cataract surgery. The complainant asked Mr. Reyes whether this would pose any problem. Mr. Reyes replied that new employes have a 30-day probationary period during which perfect attendance is required and that, therefore, the complainant would need to schedule any operation either before or after his probationary period. Mr. Reyes recommended that the complainant visit his doctor and then notify the respondent what he intended to do about the surgery. Mr. Reyes extended the complainant a conditional offer of employment, contingent upon his passing a physical examination and drug screen. No specific starting date was discussed.
6. Immediately following the interview the complainant went for a pre-employment physical at the Milwaukee Medical Center, where he was examined by a physician named Dr. Keller. The complainant told Dr. Keller that he had a cataract in his right eye and that he had an appointment to see his ophthalmologist next week. Dr. Keller looked at the complainant's eye and was able to observe the cataract. The complainant also told Dr. Keller that he had diabetes, for which he took a certain type of medication. Dr. Keller performed no independent test to determine whether the complainant had diabetes, but relied on the complainant's statement to that effect.
7. Dr. Keller then prepared an examination report, on which he indicated that the complainant had a cataract and diabetes, but that he had no physical limitations. Dr. Keller's report also indicated that the complainant had an upcoming appointment with his ophthalmologist.
8. A cataract is a clouding of the lens of the eye and is completely curable. Diabetes is a condition in which the body either manufactures an insufficient amount of insulin or, in the alternative, produces insulin which fails to work properly. Both cataracts and diabetes are conditions which adversely affect the body's normal functioning.
9. The complainant's cataract made it difficult for him to drive at night or to read without sufficient light, but did not substantially limit any of his normal functions or make achievement unusually difficult for him, nor did it adversely affect his ability to perform the production worker job.
10. The complainant took medication for his diabetes and was able to keep that condition completely under control. His only symptom from diabetes was occasional dryness of the mouth. The complainant's diabetes did not substantially limit his normal functions or make achievement unusually difficult for him, nor did it adversely affect his ability to perform the production worker job.
11. On October 1, 1991, Mr. Reyes received and read a copy of Dr. Keller's examination report. Mr. Reyes noted that the complainant had diabetes, but had no physical limitations.
12. Mr. Reyes took no action regarding the complainant from October 1-4, 1991. During that period Mr. Reyes was waiting for the complainant to let him know his plans regarding cataract surgery, so that Mr. Reyes would know if and when the complainant would be able to start working.
13. On Friday, October 4, 1991, Mr. Reyes provided his secretary with a list of individuals who were to start work on Monday, October 7. Mr. Reyes instructed the secretary to notify those individuals and to send letters to the remaining applicants, advising them that they had not been selected. Because the complainant had not yet indicated that he was available to start work, his name was not on the list of those scheduled to start on October 7, but fell into the latter group.
14. The letter which Mr. Reyes' secretary prepared for the complainant incorrectly stated that the complainant had been considered for a supervisory position and that the complainant's credentials were inadequate. Mr. Reyes signed the letter without reading it and the letter was mailed to the complainant.
15. Mr. Reyes was aware of both the complainant's cataract and his diabetes at the time he signed the letter on October 4, 1991. However, Mr. Reyes did not perceive either condition as an impairment which made achievement unusually difficult for the complainant or which limited the complainant's ability to perform the production worker job.
CONCLUSIONS OF LAW
1. The respondent is an employer within the meaning of the Wisconsin Fair Employment Act.
2. The complainant failed to establish by a preponderance of the evidence that he is handicapped within the meaning of the Act.
3. The complainant failed to establish by a preponderance of the evidence that the respondent discriminated against him on the basis of handicap in violation of the Act.
That the complaint in this matter be dismissed.
Dated and mailed October 13, 1994
Pamela I. Anderson, Chairman
Richard T. Kreul, Commissioner
James R. Meier, Commissioner
To prove handicap discrimination under the Wisconsin Fair Employment Act, a complainant must establish that he or she is handicapped, within the meaning of the Act. Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980). Section 111.32(8) of the Act defines the term "handicapped individual" as 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. An "impairment" for purposes of the Act 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). The test to determine whether an impairment makes achievement unusually difficult is concerned with the question of whether there is a substantial limitation on life's normal functions or on a major life activity. By contrast, the "limits the capacity to work" test refers to the particular job in question. Further, 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).
The complainant in this matter established that he has or had a cataract and diabetes, both of which can be said to constitute "impairments," as they are medical conditions which result in the lessening of or damage to the normal bodily condition. However, the record contains nothing to suggest that either of the complainant's impairments made achievement unusually difficult for him or limited his capacity to work. Dr. Keller, who performed the complainant's pre-employment physical, testified that the complainant had no physical limitations, and the complainant himself agreed with this assessment. The complainant testified that the only problem associated with his cataract was difficulty driving at night or reading with insufficient light and that his only symptom from diabetes was occasional dryness of the mouth. These amount to very minor limitations which cannot be said to substantially limit life's normal functions or to make achievement unusually difficult, nor is there any reason to believe that they would adversely affect the complainant's ability to perform the job in question. Under the circumstances, the commission concludes that the complainant is not handicapped within the meaning of sections 111.32(a) or (b) of the Act.
Where a complainant fails to establish that he actually suffers or suffered from a handicapping condition, within the meaning of sections 111.32(8)(a) or (b) of the Act, he can only prevail by showing that the employer acted on the basis of a belief that he suffered from such a condition, within the meaning of section 111.32(8)(c), Stats. Roncaglione v. Peterson Builders (LIRC, August 11, 1993). Here, the complainant has made no such showing. Oscar Reyes, who was the sole decision-maker in the respondent's hiring process, testified that he did not perceive the complainant as handicapped and did not believe that there were any limitations on the complainant's ability to perform the production worker job. Since both the complainant and Dr. Keller advised Reyes that the complainant had no physical limitations, and because there appears to be no reason for Reyes to have believed otherwise, the commission credits Reyes' assertion that he did not perceive the complainant as having a handicap. The commission, therefore, finds that the complainant has failed to establish either that he had a handicap in fact or that the respondent perceived him as having a handicap, within the meaning of the law. Consequently, the complainant cannot prevail on his handicap discrimination claim.
In his petition for review the complainant asserts that respondent's counsel improperly conferred with Oscar Reyes during a break in the cross-examination of that witness, and that the administrative law judge erred in failing to strike Reyes' testimony or to sanction the respondent as a result. The complainant maintains that the commission should correct this error by reversing the administrative law judge's decision to find that discrimination occurred. This argument is completely without merit. First, the complainant has not demonstrated that Reyes' testimony after the break was inconsistent with his prior testimony and has provided the commission with no reason to believe that the respondent improperly coached its witness. Further, even if the commission were to accept the complainant's suggestion that a portion of Reyes' testimony was "tainted," such a finding would affect the weight assigned to that testimony, but would not mandate a decision in the complainant's favor. Where the complainant has not proved his case on the merits, he cannot hope to win on a technicality.
NOTE: The administrative law judge found that the complainant's diabetes constituted a handicap. The commission disagrees and has rewritten the administrative law judge's decision in a manner consistent with this opinion.
Alan C. Olson
Eric H. Rumbaugh
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