Wis.LIRC ER Decision: Schultz, Scott - October 31, 2016 - 123.11 The complainant's impairment limited his ability to perform a job that arose about 1 to 2 percent of his work time, requiring only a minimal accommodation, therefore his impairment did not limit his capacity to work within the meaning of the WFEA.

The decision of the administrative law judge is reversed. Accordingly, the complaint of discrimination is dismissed.

The complainant in this matter alleged that the respondent violated the Wisconsin Fair Employment Act (WFEA) by terminating his employment on the basis of age and disability, and by subsequently refusing to re-hire or re-employ him because of age and disability. After a hearing on the merits, an administrative law judge for the Equal Rights Division dismissed the allegations of age discrimination and the allegation of termination on the basis of disability, but found that the respondent violated the WFEA by refusing to re-hire or re-employ the complainant because of disability. The complainant did not file a petition for commission review, and the commission considers the ALJ's dismissals to be final.

The respondent filed a timely petition for review of the claim that the respondent violated the WFEA by refusing to re-hire or re-employ the complainant because of disability, and the case is before the commission to consider that allegation. The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted at the hearing. Based on its review, the commission reverses the decision of the ALJ with respect to that claim, and makes the following:

1. The complainant, born December 16, 1952, worked for the respondent as a patrolman in the highway department beginning in May 1993. His employment ended on June 29, 2011.

2. The job of patrolman mainly involved maintaining county highways, doing jobs such as mowing and trimming along the roads in the summer and snow plowing in the winter. Also included was the job of flag duty, which involved flagging traffic at work zones.

3. From about the time the complainant began working for the respondent he began having periodic chiropractic treatments, including treatments for back pain, which continued for about 10 years.

4. By 2002, the complainant had been diagnosed as having severe lumbar disc disease and spondylosis. An MRI report of the lumbar spine taken on May 22, 2002 found:

1. At L4-L5, there is circumferential disc bulging with minimal encroachment into bilateral intervertebral neural foramina. The central canal remains patent. There is moderate bilateral facet hypertrophy.

2. At L5-S1, circumferential disc bulging produces mild mass effect on bilateral intervertebral neural foramina. There is mild to moderate bilateral facet hypertrophy, too; however, the central canal remains widely patent.

5. In September 2002 the complainant took time off work to have the following surgery:

Bilateral L5-S1 foraminotomies and partial facetectomies to decompress the L5 and S1 nerve roots using microscopic guidance and dissection.

6. The complainant returned to work with restrictions about one month after the surgery, and was released from restrictions about one month after returning to work. Following the surgery, the complainant had chiropractic visits at four to eight week intervals for about 10 years, many of which were for back pain and stiffness.

7. In approximately 2006, Brian Glaeser took the position of road superintendent for the respondent, and became the complainant's supervisor.

8. Shortly after Glaeser became his supervisor, the complainant asked Glaeser two or three times over the course of a month if he would refrain from assigning the complainant to jobs that required standing for more than an hour at a time. Primarily, this request had to do with limiting the amount of time the complainant spent doing flag duty. When the complainant made these requests, he mentioned that his reason was that he had a sore back. Glaeser understood the complainant's requests as being related to a medical condition involving his back.

9. Glaeser granted the complainant's request by adopting a new practice of rotating the job of flag duty through the employees at a job site where flagging was occurring. For the remainder of the complainant's term of employment, the complainant did not have to do a job that required him to stand for as long as an hour.

10. In the last five years of his employment with the respondent, the complainant performed flag duty less than 5 percent, and probably 1 to 2 percent, of his time. This normally consisted of doing two half-hour shifts of flag duty, equaling one hour of flag duty per day on days when it was assigned.

11. The complainant was a member of a collective bargaining unit. The collective bargaining agreement (CBA) covering the complainant expired at the end of 2010, but the employer and union agreed to extend it pending negotiation of a new CBA. Negotiations on a new CBA were complicated by the passage of 2011 Wisconsin Act 10. On April 18, 2011, the respondent laid off the complainant and 16 other members of the bargaining unit for economic reasons. In May 2011 the respondent offered a CBA that implemented many provisions of Act 10. Anticipating that the membership would accept the offer, the respondent issued recall notices to the complainant and the other laid-off employees. But the membership rejected the offer, and the employees were again laid off on May 20, 2011. With the enactment of Act 10 on June 29, 2011, the CBA expired, and the layoffs of the complainant and the others became separations.

12. During the next few months, the respondent created a new occupational class called highway maintenance worker, which included the former patrolman positions under the CBA.

13. The process of filling the new highway maintenance worker positions was for four people—Gary Kennedy (the highway commissioner for the County), and his three superintendents, Wayne Sleger, Chuck Behnke and Glaeser—to review the applications of the laid-off employees who wanted to come back, and select which ones they wanted. The complainant was one of those applicants, and he was passed over in that process. It was then determined how many additional positions needed to be filled, and an ad was placed. The complainant was also on the list of these applicants. The four decision-makers reviewed the applications and indicated with a checkmark which applicants deserved an interview. If any one of the four had selected the complainant for an interview, he would have been interviewed.

14. There were no discussions among the four decision-makers when they were deciding whom to select for hiring or an interview. None of the decision-makers selected the complainant for re-hire or for an interview.

15. The condition of the complainant's back was not a motivating factor in the separate decisions of Glaeser, Kennedy, Sleger and Behnke not to select the complainant for a position of highway maintenance worker, or for an interview for that position.

1. The County of Manitowoc is an employer within the meaning of the Wisconsin Fair Employment Act (WFEA).

2. Scott Schultz is an individual and an applicant for employment with the County of Manitowoc within the meaning of the WFEA.

3. Schultz has not shown that he was an individual with a disability within the meaning of the WFEA.

4. Schultz has not proven by a preponderance of the evidence that the County of Manitowoc violated the WFEA by refusing to re-hire or re-employ him on the basis of disability.

In general, the order of proof in a claim of disability discrimination in hiring requires the complainant to show that he or she is an individual with a disability as defined in the Wisconsin Fair Employment Act (WFEA), and that the employer took some adverse employment action against the complainant because of the disability. Proof of causation usually, if not always, entails proof that the employer was aware of the complainant's disability when it took the adverse action. Stone v. UW System (Wis. Personnel Comm., 03/12/03).

If disability and causation are established, the respondent has the burden to justify its adverse action under Wis. Stat. § 111.34(2). Normally, this involves a showing that the disability was reasonably related to the complainant's ability to adequately undertake the job-related responsibilities of the employment, with or without a reasonable accommodation. Cook v. Community Care Resources, Inc., ERD Case No. 199903790 (LIRC Jan. 13, 2003).

In this case the respondent did not offer an argument under Wis. Stat. § 111.34(2), and instead simply challenged the complainant's proof, arguing: 1) that the complainant did not prove that the condition of his back was a disability under the WFEA; and 2) that even if he had, he failed to prove that his back condition was the reason for his not being re-hired.

(a) Has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work;

The complainant sought to prove disability under part (a) above by showing that he had an actual impairment that limited his capacity to work, and also under part (c), by showing that Glaeser perceived the complainant as having such an impairment.

Generally, competent medical evidence is required to establish the existence, nature, extent and permanence of an impairment, if disputed as a matter of fact. Hendon v. Wisconsin Bell, Inc., ERD Case No. CR2009-2834 (LIRC Nov. 13, 2014); Alamilla v. City of Milwaukee, ERD Case No. CR201002749 (LIRC June 28, 2013). The complainant presented medical treatment records and the opinion of a consulting physician, Dr. Thomas Lyons, to show disability.

The medical records included an MRI report of the lumbar spine on May 22, 2002 finding that the complainant had intervertebral disc bulging at L4-L5 and L5-S1, which led to his having back surgery in September 2002. Chiropractic records indicated that the complainant had been seeing a chiropractor for at least 10 years prior to the surgery. Following the surgery, medical records showed repeated chiropractic visits for the next 10 years, many of which were for back pain and stiffness. A note following a chiropractic visit on November 5, 2007 released the complainant for work but noted: “No prolonged standing! Needs to move around.” A letter in the medical file dated August 13, 2014 states:

I have seen Scott Schultz on and off since January 2003. He has presented to my office with a history of low back pain following low back surgery. During the 10+ years he has been coming here, I've seen him on a 4 to 8 weeks schedule for manipulation of the low back due to chronic disc discomfort and pain.

As for his work restriction/limitation, I believe it was appropriate for breaks after one hour of standing. I also believe that this condition limits physical activity without causing additional further pain.

Dr. Lyons conducted an independent medical evaluation of the complainant on October 6, 2014, at the request of the complainant. Dr. Lyons noted that the complainant reported a long history of low back complaints, brought on particularly by standing more than one hour. He ordered an MRI of the lumbar spine, which took place on October 23, 2014. MRI report noted that the complainant had “[d]isplacement of lumbar intervertebral disc without myelopathy.” Dr. Lyons wrote a report dated November 15, 2014, in which he concluded that the complainant had degenerative disc disease. His report concluded:

Mr. Schultz clearly has a long antecedent history of complaints referable to his lumbar spine. He did have surgery as noted above in September 2002. He did reasonably well from that, aside from having persistent low back pain particularly with prolonged standing. This is not an uncommon scenario for somebody with the extent of lumbar disc disease that Mr. Schultz has, both manifested by his complaints and his recent imaging studies outlined above.

Therefore, in my opinion beyond a reasonable degree of medical probably [sic], it would not be unreasonable to have a work place accommodation of Mr. Schultz being able to stand for only 1 hour her work day. Again, this is based on his long history of low back complaints and the severe nature of his lumbar disk disease exhibited by his most recent MRI.

Dr. Lyons also testified at hearing. He stated that the complainant had “rather severe lumbar disc disease and spondylosis.” (Tr., p. 44). He acknowledged on cross examination that he did not perform a functional capacity examination, and that he only saw the complainant once, in October 2014. Even though he saw the complainant approximately three years after the date of the alleged discriminatory refusal to hire, Dr. Lyons contended that the condition he assessed in October 2014 would have existed in 2011. (Tr., pp. 65-66).

The respondent also arranged for an independent medical evaluation, performed by Dr. Jeffrey Gorelick on November 11, 2014. (Ex. P). Dr. Gorelick's report of the complainant's medical history indicated that the complainant had ongoing chiropractic treatments for back pain for years before 2002, then had back surgery in September 2002; that he was off work approximately five weeks thereafter, and returned on restrictions for about one month, then was released from restrictions. The complainant indicated that he resumed seeing the chiropractor approximately every eight weeks because he began to experience pain in the small of his back, escalating by the eighth week.

After examining the complainant Dr. Gorelick stated that the complainant demonstrated clinical evidence of chronic low back pain, with a history of having a single-level lumbosacral laminectomy with excellent results. He stated that the complainant was released without restrictions in the latter part of 2002, and that he never had any ongoing “special accommodations” for low back issues. On the other hand, Dr. Gorelick stated that “[o]ver the years, it appears his work accommodated Mr. Schultz's physical abilities.” In his summary, Dr. Gorelick opined that the complainant's chiropractic treatments every two or three months were for “minimal symptoms requiring very limited treatment”, and that he did not have an actual or perceived impairment.[2]

As to whether the complainant had an actual impairment, it is necessary to apply the legal definition, which is “an actual lessening, deterioration, or damage to a normal bodily function or bodily condition, including the absence of such function or condition.” City of La Crosse Police and Fire Comm. v. LIRC, 139 Wis. 2d 740, 760, 407 N.W.2d 510 (1987). Considering that Dr. Lyons' diagnosis of degenerative disc disease is supported by an MRI and is consistent with the complainant's historical diagnosis and surgery, that following surgery the complainant had years of chiropractic treatment lasting until his termination from employment, and that he consistently reported low back pain during that period of time, the commission finds that Dr. Lyons' opinion is more credible than Dr. Gorelick's, and that the complainant's degenerative disc disease was a lessening, deterioration or damage to a bodily condition or to a normal bodily function, and therefore was an actual impairment under the WFEA.

The next question is whether that impairment “made achievement unusually difficult” or “limited the capacity to work.” The complainant focused on the latter,[3] arguing that the restriction to avoid standing for more than an hour due to his degenerative back condition limited his capacity to work. The statutory phrase “limits the capacity to work” has been interpreted to refer to the particular job in question. Roytek v. Hutchinson Technology. ERD Case No. 199903917 (LIRC Feb. 15, 2005), aff'd sub nom. Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343; AMC v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984). The respondent argues, citing Tschida v. UW-River Falls, ERD Case No. CR200503086 (LIRC Dec. 30, 2008), that the complainant's impairment required at most very little accommodation, which was insufficient to establish that it limited his capacity to work. The commission's analysis in Tschida reads as follows:

The complainant's permanent work restrictions, assessed in 2001, were to avoid excessive neck extension and overhead work. The complainant also had a lifting restriction of 5-10 pounds continuously, 20-30 pounds frequently, 40-50 pounds occasionally, and nothing greater than 50 pounds, as well as restrictions with regarding to pushing and pulling. The respondent's witnesses testified that the complainant's restrictions were "very mild," and that the complainant was capable of performing his normal, regular duties with only minimal accommodation. The complainant agreed with this assessment. [Footnote omitted] An impairment that requires little accommodation and does not interfere with the ability to perform the job is not one which can be said to limit the capacity to work.

The respondent also cited Young v. State of Wisconsin, ERD Case No. CR200702935 (LIRC Nov. 30, 2011), in which the commission found an employee's knee impairment to be insufficient to limit the capacity to work. The commission reasoned:

The complainant testified that his knee impairment limits his capacity to work, in so far as it causes him to experience pain and stiffness and to limp when he begins his work day. [Footnote omitted] However, while the commission does not doubt that pain can be disabling, the evidence in this case does not demonstrate that the complainant's knee pain limited his capacity to work. The complainant testified that he experiences pain and stiffness from the long drive to work, which goes away within ten minutes to an hour after arriving at work. The evidence indicates that the complainant spends the first forty-five minutes of his day at his desk, during which time he can flex his knee and work out the stiffness in the knee before he needs to do any significant walking around. The stiffness and pain the complainant briefly experiences upon arriving at work constitutes only the most minimal, if any, limitation on the complainant's ability to perform his job. While the complainant also testified that the knee pain makes it difficult for him to walk from his car to his desk, the commission is not persuaded that this alone amounts to a circumstance that can be said to limit the capacity to work, so as to constitute a disability within the meaning of the law.

Examples of impairments that were considered sufficient to limit the capacity to work include: Jones v. United Stationers, Inc., ERD Case No. 199803598 (LIRC Jan. 25, 2001), in which the employee suffered from carpal tunnel syndrome which culminated in a leave of absence due to medical restrictions that prevented her from repetitive pushing, pulling, turning of the wrists, lifting more than 20 pounds, and doing her regular task of order filling; Hutchinson Technology v. LIRC, 2004 WI 90, 273 Wis. 2d 394, 682 N.W.2d 343, in which the employee's back pain related to disc problems prevented her from being able to work beyond eight hours per day, four hours short of the required 12-hour shift; Goldsmith v. Sears Roebuck & Co., ERD Case No. 200203912 (LIRC June 29, 2006), in which the employee was unable to abide by the employer's no fault attendance policy because of his impairment, bipolar disorder; and Fields v. Cardinal TG Co., ERD Case No. 199702574 (LIRC Feb. 26, 2001), in which the employee's herniated disc prevented him from doing the job of loading and unloading glass due to his limited ability to engage in repeated bending, twisting and lifting. The employer required the employee to rotate into the loading and unloading duty on a daily basis.

Considering that in the complainant's estimation he was assigned to flag duty only 1 to 2% of his time, and otherwise he maintained the ability for years to perform all the duties of his job with no accommodation and no appreciable absenteeism or tardiness due to his back condition, the commission considers this case to be close to Tschida and Young, in which it was deemed that the employee's impairment did not cause more than a “very mild” restriction in his job duties, requiring only a minimal accommodation. The commission therefore finds that the complainant's actual impairment did not limit his capacity to work within the meaning of the WFEA.

The complainant also argued that he was an individual with a disability because the employer, specifically his supervisor, Glaeser, perceived him to have an impairment that limited his capacity to work. There is evidence in the record to support the finding that Glaeser perceived the complainant to have an impairment. Glaeser testified as follows:

Q: And when Mr. Schultz would ask for the special treatment you've described, what would you do about that?

A: Well, if he says he couldn't walk on uneven surfaces, I would try to work with the employee, you know, and try to maybe schedule someone else on a certain job, you know, or I would – if he couldn't flag, if he said he had a condition that he couldn't flag or something, then I would maybe try to get someone else to flag depending on, you know, availability of other employees.

The complainant testified that when he asked Glaeser for relief on the flagging job, it was in conjunction with complaining to Glaeser about having a “sore back.” (Tr., p. 467-68). Although Glaeser answered “not really” to a question about whether the complainant complained to him about physical problems in connection with his request for relief, he also acknowledged that he understood the complainant's request was based on his physical condition (“if he couldn't flag, if he said he had a condition that he couldn't flag or something…”). He admitted that whenever any employee asked to be relieved from standing for an hour to do flag work, he understood the request to be related to a medical condition. (Tr. p. 371). He acknowledged that he was not denying that the complainant had a back problem, (Tr. p. 374), and that he “came with requests of the situations and maybe an injury that he wanted relief from, and I worked with the employee.” (Tr., p. 375). And he conceded:

(Tr., p. 382). The respondent argued that Glaeser did not perceive the complainant to have a physical impairment because Glaeser commonly got requests from employees to be relieved from a job for such things as a sore back, or “leg problems, ankle issues, or lots of different things.” (Tr. p. 345). The complainant's back problem, the respondent argued, was no different. But the fact that Glaeser changed the process of assigning the flagging job following the complainant's request by rotating the job, and made that change permanent, suggests that Glaeser believed the complainant's sore back was a chronic condition, not an isolated and temporary one, indicating that he perceived the condition to have the effect of lessening the complainant's bodily function or condition, not just his ability to do a job on a particular day.

The commission finds, however, that Glaeser did not perceive the complainant's back condition to limit his capacity to work. Glaeser himself came up with the idea of rotating the flagging job as a way to accommodate the complainant, and there is no evidence that making that change presented more than a minimal adjustment for Glaeser. There is also no evidence that Glaeser estimated the percentage of the complainant's work-time devoted to flag duty was any more than the 1 to 2% of time that the complainant estimated. The commission's conclusion in Tschida applies here:

…where the parties agreed that the complainant's restrictions interfered only very minimally with his ability to perform the job, any perceived impairment was not one which would have constituted a disability, within the meaning of the Act.

In sum, then, although the complainant had an actual and perceived physical impairment, the complainant did not show that it limited his capacity to work, or that it was perceived to do so, and therefore he has not shown that he was an individual with a disability within the meaning of the Act.

Even assuming that the complainant had shown that his back condition was a disability under the WFEA, the commission finds that the complainant failed to prove that his non-selection was because of his back condition.

Four individuals had the power to select the complainant for a position or to advance his application by scheduling him for an interview—Gary Kennedy (the highway commissioner for the County), and his three superintendents, Wayne Sleger, Chuck Behnke and Glaeser. The four decision-makers reviewed the applications and separately indicated which ones deserved hiring or an interview. (Tr., pp. 388-89, 406).

There was insufficient evidence to allow for a finding that Kennedy, Sleger or Behnke knew the complainant had a disability under the Act, or that it was accommodated by Glaeser, so the decisions of those three not to hire or interview the complainant could only be labeled discriminatory under a cat's paw analysis, under which an employee who is prejudiced against the complainant decisively influences an unbiased decision-maker to treat a complainant adversely. Haecker v. Charter Steel, ERD Case No. CR200002629 (LIRC Jan. 28, 2003).

There is no evidence that any discussion took place among the four decision-makers about the relative merits of the applicants at the time they were making their selections for hiring or an interview, making it difficult to link Glaeser's alleged prejudicial attitude to the rejections of the complainant's application by the other three. Furthermore, there is no evidence of Glaeser's having influenced Sleger or Behnke against the complainant at any time. The acts of Seger and Behnke, then, cannot be attributed to Glaeser's alleged prejudice.

Whether Kennedy was influenced by Glaeser requires more analysis. Kennedy testified that he did not select the complainant for an interview because of “past information I received from my superintendents…[t]hat he complained about job assignments” and “wasn't a team player.” (Tr. p. 406). When asked to be more specific, Kennedy testified:

Oh, I heard them – like Chuck Behnke, he would come to my office and he'd say, “Oh, I gave orders out and Scott's complaining that I gave these orders out.” Greg Peterson had some problems. Brian Glaeser would tell me he didn't like his attitude. So it was sporadic, here and there.

(Tr., p. 407). Despite Kennedy's reference to Glaeser having told him that the complainant had a bad attitude, the commission does not find that Glaeser's comment decisively influenced Kennedy to not select the complainant. According to Kennedy, Glaeser was only one of several who complained about the complainant. There was insufficient evidence to conclude that Kennedy gave decisive weight to Glaeser's past comments to him about the complainant when he decided not to select the complainant.

That leaves Glaeser's own decision not to select the complainant. Glaeser testified that he did not select the complainant because there were better applicants who were “more hard-working, better qualified, and just better attitude…” (Tr., p. 355). He therefore articulated reasons for not selecting the complainant that appeared to be non-discriminatory. The complainant had the burden of showing these reasons to be a pretext for disability discrimination. The ultimate burden of persuading the trier of fact that the complainant's protected status was a determining factor in a hiring decision remains with the complainant. Kurtz v. School Dist. of St. Croix Falls, ERD Case No. 8901470 (LIRC June 10, 1993). The complainant argued that Glaeser's own testimony about the complainant's bad attitude showed that his back condition was the real reason Glaeser rejected his application, because one of Glaeser's examples of the complainant's bad attitude was the complainant's asking him “Why do I have to flag?” (Tr., p. 353). This example does not necessarily show that Glaeser was upset about accommodating the complainant's physical limitation—his limitation was not an inability to do any flagging, it was an inability to flag for more than an hour. Glaeser therefore could legitimately form an opinion that the complainant had a bad attitude based in part on his objection to being assigned to perform flag duty within his restrictions. Also, the complainant's objection to flagging was not Glaeser's only example of a bad attitude; Glaeser also testified that the complainant complained about being required to “go in the ditch” and questioned why he couldn't be assigned to drive truck. (Tr., p. 353). The commission does not find that Glaeser's testimony about the complainant's bad attitude revealed a discriminatory motive for not selecting him for hiring or an interview.

The essence of a case of discrimination in hiring is that an employer passed over a qualified individual in a protected class in order to hire a less-qualified or similarly qualified individual not in the protected class. See, for example, Martin v. Milwaukee Board of School Directors, ERD Case No. 199900517 (LIRC Feb. 26, 2003). In this case, the only successful applicant about whom a specific comparison to the complainant was drawn was a former employee named Richard Ebert. There was no competent evidence that Ebert had no disability, but even assuming that he did not, and thus was a successful applicant not in the complainant's protected category, the complainant only elicited testimony from Kennedy as to why he preferred Ebert over the complainant. Kennedy's assessment of the relative qualifications of Ebert and the complainant, even if it was erroneous, cannot point to discriminatory motive in the absence of any evidence that Kennedy considered the complainant to be in the protected class.

Glaeser's opinion that the other applicants were more hard-working or better qualified, as vague as it was, went unchallenged. The complainant failed to present any evidence as to how Glaeser, the only one who might have harbored a discriminatory motive, compared the complainant to any particular successful applicant who was not in his protected class. The commission recognizes that the non-discriminatory reasons articulated by Glaeser were vague and subjective, but use of such criteria is not per se discriminatory. Howard v. City of Madison, ERD Case No. 8300879 (LIRC Feb. 24, 1987). The commission has consistently held that there is no discrimination if the respondent honestly believed in the non-discriminatory reason it offered, even if this reason was foolish, trivial or baseless. See, for example, Fink v. Sears Roebuck and Co., ERD Case No. 200404227 (LIRC March 1, 2007); Grell v. Bachmann Construction Co. Inc., ERD Case No. CR200202309 (LIRC July 15, 2005). The complainant failed to prove that Glaeser did not honestly believe in the non-discriminatory reasons he offered for not selecting the complainant.

Therefore, in addition to finding that the complainant failed to prove he was an individual with a disability, the commission finds that he failed to prove that his back condition was a determining factor in the failure of the respondent to re-hire him.

NOTE: The commission consulted with the ALJ who held the hearing in this case to obtain his impressions as to the credibility of the witnesses, based on their demeanor, which were a factor in the ALJ's decision. In response, the ALJ indicated that he had no recollection of the observable demeanor of the witnesses.

Footnotes:

[1]

Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the following as defendants in the summons and the complaint: the Labor and Industry Review Commission, and all other parties in the caption of this decision or order (the boxed section above).

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission's website http://lirc.wisconsin.gov.

[2] Dr. Gorelick had no basis to opine about whether the complainant had a perceived impairment, because he has no insight into how the employer perceived the complainant's physical condition in 2011.

[3] The former, making achievement unusually difficult, is concerned with whether the impairment substantially limits life's normal functions or a major life activity. AMC v. LIRC, 119 Wis. 2d 706, 350 N.W.2d 120 (1984). The complainant did not show that his back pain was so limiting.