CARSON COMBS, Complainant

SERVICE FIRST STAFFING , Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission issues the following:

Dated and mailed July 18, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

Probable cause standard

This case is before the commission on probable cause. The complainant's burden in a probable cause proceeding is a lesser one than in a case on the merits. The burden of proof at a probable cause hearing has been described as "low." See, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992). It is somewhere between a preponderance and a suspicion. Hintz v. Flambeau Medical Center (LIRC, Aug. 9. 1989). The complainant's burden is to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC, Feb. 18, 1987).

Summary of the facts

At the hearing in this matter the complainant presented evidence establishing that he applied for work with the respondent, a temporary staffing service, and was offered a job as a general laborer for its client, Patrick Cudahy. The complainant was told he would need to lift up to 50 pounds and must be able to work in a cold environment. The complainant stated he could do the job.

The following day, the complainant was sent to Patrick Cudahy for orientation conducted by staff from both Patrick Cudahy and from the respondent. The complainant was given a health screening form and was asked to disclose his medical history. One of the questions on the form was whether he had had a prior back injury and, if so, whether he had a herniated disk. The complainant answered yes to both questions. He was thereupon directed to report to the Patrick Cudahy medical office, where he was questioned further about his herniated disk. The complainant explained that the injury occurred in 1999, and that he had not had problems with it for years and had worked at many jobs involving lifting, stooping, bending and standing. The complainant was told he needed to have a doctor complete a medical hold form and that he could not work until the form was completed.

Thereafter, the complainant went to the Veterans Association Hospital, which had been his primary health care provider in 1999. An emergency room doctor conducted a cursory search for the complainant's records, but could not find them. The doctor therefore scheduled an appointment for a physical examination for the complainant with the rehabilitation and physical therapy department. In the mean time, the doctor gave the complainant a restriction of lifting no more than 25 pounds and avoiding all activities that cause pain until medically cleared. The complainant informed the respondent of this restriction and was told he could not work until his medical hold form issue was cleared up.

Two weeks later the complainant had a physical examination conducted by a nurse practitioner. The nurse practitioner stated in her report--a copy of which was faxed to the respondent--that the examination produced nothing remarkable and that the complainant had no limitations. However, the complainant heard nothing further from the respondent and was not offered any work.

Motion to dismiss

After presenting the evidence summarized above the complainant rested his case. Rather than presenting its own evidence, however, the respondent moved for dismissal. It did so on the ground that it is an employer's right to ask an applicant to submit to a physical exam prior to hire and because it contended the complainant did not establish he had a permanent impairment or that he was perceived as having a permanent impairment. The respondent maintained that a lifting restriction/back injury is not considered a permanent impairment under the Wisconsin Fair Employment Act. The administrative law judge granted the motion and the hearing was closed without presentation of any evidence by the respondent.

The administrative law judge's decision to grant the respondent's motion for dismissal was in error. This case is not about whether an employer may be permitted to ask an applicant to submit to a physical exam prior to hire. Rather, the complainant testified that the respondent and its client refused to allow him to work, demanded he provide medical information that he was required to obtain on his own, and that, even after providing medical information that established he could work, was still not permitted to work. With regard to the argument that the complainant did not establish he has a disability, the respondent presented nothing in support of its contention that a back injury cannot constitute a permanent impairment. Moreover, the complainant contended that he was discriminated against based upon a perceived disability, a premise that is supported by his unrebutted testimony that he told the respondent and its client he could work and had no limitations, but was nonetheless not permitted to work without submitting a medical clearance. Consequently, the commission believes that the respondent's motion to dismiss was without merit and that the administrative law judge erred in granting that motion.

Administrative law judge's decision

Despite having granted the respondent's motion to dismiss, made in part on the basis of an argument that the complainant failed to establish he has a disability, in his written decision the administrative law judge found that the complainant did establish he was disabled and dismissed the complaint on a different basis. In his memorandum opinion the administrative law judge wrote:

The complainant contends that the respondent discriminated against him by terminating his employment when their client (Patrick Cudahy) refused to hire him. The record is clear that the complainant was seeking to be employed by Service First and not Patrick Cudahy. Patrick Cudahy was not named as a respondent in this matter. However, no evidence was offered at the hearing as to the nature of any relationship between Service First and Patrick Cudahy. Therefore, it can not be determined whether or not if Patrick Cudahy coerced Service First into terminating his employment. Nor was any evidence offered to establish what role if any that Patrick Cudahy had in the Complainant not being hired by Service First. Whether or not Patrick Cudahy influenced Service's decision not to assign him to Patrick Cudahy, it is likely that Service First could have assigned him to another of its clients. However, after the Complainant faxed his medical information to Service First, (information indicating that his herniated disc condition was resolved and that he could lift up to seventy-five pounds) the Complainant made no further attempts to contact Service First.

However, dismissal on this basis was also unwarranted. The complainant did not contend that Patrick Cudahy coerced the respondent into not hiring him or influenced its decision about doing so, nor did the respondent present any evidence to establish that the reason it did not hire the complainant was because he did not contact it after submitting his medical information.

The complainant's evidence establishes that he applied for a job for which he was qualified, that the respondent perceived him as having a disability and would not assign him to perform the work on that basis, and that even after establishing that he was medically able to perform the work, he was not hired. This is sufficient prima facie evidence to shift the burden to the respondent to present a legitimate non-discriminatory explanation as to why the complainant was not hired and which, if left unrebutted, would warrant a conclusion that there was probable cause to believe the complainant was discriminated against based on disability.

Improvident dismissal of the complaint

The commission has repeatedly cautioned against the premature dismissal of a complaint before both parties' evidence has been heard. In Roberge v. Department of Agriculture, Trade and Consumer Protection (LIRC, May 31, 2005) the commission stated, in relevant part:

A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. . . .

See, also, Holcomb v. American Convenience Products (LIRC, March 25, 1988); Frierson v. ASHEA Industrial Systems (LIRC, Apr. 6, 1990); Buska v. Central Building Management (LIRC, Sep. 28, 1995); Harsh v. County of Winnebago (LIRC, Nov. 6, 1998); Dodson v. Milwaukee Wire Products (LIRC, Apr. 23, 2001); Beyers v. Mediq PRN (LIRC, Jun. 27, 2005); Raven v. Shopko Stores (LIRC, Feb. 28, 2006); Gunty v. City of Waukesha (LIRC, March 29, 2007); Cappelletti v. Ocean Spray Cranberries, Inc. (LIRC, Feb. 25, 2008); Arvin v. C & D Technologies (LIRC, Oct. 31, 2008); Kloth v. State of Wisconsin (LIRC, Nov. 14, 2008); Dieterich v. Lindengrove, Inc. (LIRC, Dec. 29, 2008).

Because the record made at the hearing in this matter established a prima facie case, dismissal of the complaint at the close of the complainant's case was inappropriate. Upon offering its motion to dismiss, the respondent should have been advised that it had the option of either resting or putting in its case. As the respondent was not given that option, the commission considers it necessary to remand this matter for further proceedings. See, Dieterich v. Lindengrove, Inc. (LIRC, Dec. 29, 2008). On remand the administrative law judge should allow the case to be fully tried, hearing and considering all of the relevant evidence offered by both parties. Id.

cc: Attorney Bruce Chesshire

Appealed to Circuit Court.  Affirmed, October 20, 2011.

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