DAVID L DANIEL, Complainant

BERLEX LABORATORIES, 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 July 25, 2008
danieda . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

David Daniel, employed by the respondent beginning in January 2000, sold prescription pharmaceuticals for the respondent until August 23, 2005, when the respondent terminated his employment.
Daniel was involved in a car accident in 1997. He asserts that that was when his problems with his back began. While working for the respondent in November 2003, he was struck by a car in the parking lot of a client. Daniel was then off work for three days and missed a day here and there, but was not off work for any extended period of time.

On August 23, 2005, the day Daniel's employment ended, he thought he was meeting the district manager responsible for overseeing his work, Toni Sylvia for a run-of-the-mill field contact meeting at Starbucks, but Mike Maloney, the respondent's Field Sales Director/Human Resources Liaison, appeared, told him to sit down and that he was placed on probation. Daniel was experiencing back pain at the time and insisted on going to the hospital. Daniel states that Maloney repeatedly told him that if he left the meeting, he was fired. Daniel decided that he was leaving anyway. Maloney attempted to prevent Daniel from leaving by blocking his exit from Starbucks and then demanded that Daniel turn over the keys to the company car as he attempted to get to the car. Eventually the police were called and the police gave Daniel a ride home. At that point Daniel called his wife who took him to the hospital.

Daniel filed a discrimination complaint alleging that the respondent discriminated against him because of his disability, a back injury. He asserted that the respondent terminated his employment due to his disability. He also asserted that he was denied accommodation (i.e., his repeated requests to be allowed to leave the meeting to go to the hospital) and that he was retaliated against for expressing his opposition to the way he was treated on August 23, 2005.

At the hearing (merits) on his complaint Daniel asserted that his disability is L-4 and L-5 bulging disks in his back. Daniel did not present any medical evidence regarding his back condition at the hearing. With respect to the November 2003 accident, Daniel asserted that as time wore on, Sylvia asked if he thought he would need back surgery or be out of work a lot. Daniel asserted that sometime in 2005, Sylvia asked if he thought he might resign at some point, but then said she was "just kidding" and said she wondered if he would be able to do his job duties with all the driving that might affect his back. Daniel also asserted that during national meetings he could not participate in team-building activities, such as bumper cars, and that Sylvia commented that he was not being a team member because he was not participating in team-building activities; that he was going to his job everyday, then why couldn't he do this.

The ALJ found that the complainant failed to prove by a preponderance of the evidence that he has an actual disability, or that the respondent perceived him as having a disability, within the meaning of the Act, failed to prove by a preponderance of the evidence that the respondent discriminated against him by refusing to reasonably accommodate a disability or by terminating his employment because of a disability, and failed to prove by a preponderance of the evidence that he had ever opposed a discriminatory practice or that the respondent terminated his employment because he opposed a discriminatory practice under the Act.

ISCUSSION

In a disability discrimination claim under the Wisconsin Fair Employment Act a complainant must show that: (1) he or she is an "individual with a disability" as defined in Wis. Stat. § 111.32(8), and that (2) the employer took one of the actions enumerated in Wis. Stat. § 111.322 (e.g., terminated the complainant's employment) because of the disability. Crystal Lake Cheese Factory v. LIRC, 2003 WI 106, ¶ 42, 264 Wis. 2d 200, 225, 664 N.W.2d 651; Target Stores v. LIRC, 217 Wis. 2d 1, 9, 576 N.W.2d 545 (Ct. App. 1998).

The Act provides that an " 'Individual with a disability' means 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." Wis. Stat. § 111.32(8). Except in cases where a disability is obvious, or in other cases where the evidence is clear that the employer perceived the individual to have a disability, proof of a disability requires competent medical evidence to establish the individual's alleged disability.

An "impairment" for purposes of the statute is a real or perceived lessening or deterioration or damage to a normal bodily function, or the absence of such bodily function or such bodily condition. City of La Crosse Police & Fire Comm. v. LIRC, 139 Wis. 2d 740, 761, 407 N.W.2d 510 (1987).

Under the first step of the analysis a complainant alleging that he or she has a disability must establish an actual or perceived impairment and that such condition either actually makes or is perceived as making achievement unusually difficult or limits the capacity to work. City of La Crosse Police & Fire Comm., 139 Wis. 2d. at 762. By establishing an actual or perceived impairment and that such condition either actually makes or is perceived as making achievement unusually difficult or limiting the capacity to work, a complainant establishes that he or she is an individual with a disability.

Should the complainant establish that he or she is an individual with a disability, as the second step of the analysis the complainant must then establish that the employer took one of the actions enumerated in Wis. Stat. § 111.322 against him or her because of the disability. Satisfying the first and second steps of the analysis would then cause the burden to shift to the employer to prove a defense under Wis. Stat. § 111.34.

As previously noted above, Daniel failed to present any medical evidence regarding his back condition. Thus, the nature and extent of his back problems is unknown and no basis exists to know whether his back condition in fact makes achievement unusually difficult or limits the capacity to work.

Furthermore, regardless of whether or not the respondent perceived Daniel to have a physical impairment which makes achievement unusually difficult or limits the capacity to work, the evidence indicates that the respondent terminated Daniel's employment not because of any problem he might have been having with his back, but because he left the meeting on August 23, 2005, despite being told that he would be fired if he left the meeting. Testimony by Daniel himself establishes that his back condition was not the reason for the respondent's actions. Daniel testified that Maloney told him that he "could listen to him (Maloney) for a couple of minutes before I left." Moreover, Daniel indicated that the respondent was being sold, that the respondent employed people across the country that he had talked to, including an employee with no disability, and that the respondent did the same exact thing to them that it did to him on August 23, except the respondent fired these other employees while it placed him on probation.

Even assuming the respondent perceived Daniel to have a physical impairment which made achievement unusually difficult or limits the capacity to work, in view of the limited amount of time the respondent requested to meet with Daniel and because the reason the respondent terminated Daniel's employment had nothing to do with Daniel's alleged back condition, Daniel's claim that the respondent failed to reasonably accommodate a disability fails. Daniel's asking to leave the meeting to go to the emergency room because of his back pain was not opposition to a discriminatory practice because he has not established that the respondent recognized he was claiming that the respondent was engaging in employment discrimination and that he was opposing that discriminatory conduct.

In his petition for review, with respect to his failure to have any medical documentation at the hearing, Daniel asserts that he was not expecting the hearing to be a "one and only final trial" and requests the opportunity to have another hearing. Daniel asserts that he would appear with an attorney and all pertinent documentation. However, the Equal Rights Division had provided written notice to Daniel on October 4, 2006, when his case was certified to hearing, that if he intended to retain an attorney that he should do so immediately and that he should be ready to offer testimony and evidence to support his case at the hearing. Further, on May 30, 2007, when the ERD issued a notice of hearing in the matter, the ERD enclosed an information sheet describing his rights and responsibilities in the hearing process, which again included advice that he obtain an attorney now if he planned on having an attorney represent him at the hearing, and notice that if he had any questions to contact the administrative law judge assigned to the case. Daniel's request for another hearing is therefore denied.

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