MR. BENJAMIN H. LOWENBERG, Complainant

SECRETARY OF THE BOARD OF REGENTS, Respondent

The Examiner of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 13, 1980. Complainant filed a timely petition for review and both parties subsequently submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

That the attached decision of the Examiner is affirmed and shall stand as the FINAL ORDER herein subject to the following modifications:

1. The last sentence of paragraph 13 of the Findings of Fact is deleted and the following sentence substituted therefor:

"Even assuming such a conversation occurred, it would not have constituted sufficient notice to Respondent of Complainant's handicap."

2. Paragraph 14 of the Findings of Fact is deleted and the following paragraph substituted therefor:

"14. The Respondent's decision to terminate the Complainant's tenure-track status was not based on the Complainant's handicap, but was based on his failure to obtain the Ph.D. degree within the desired time."

3. Paragraph 4 of the Conclusions of Law is deleted.

4. The last sentence of paragraph 6 of the Conclusions of Law is deleted and the following sentence substituted therefor:

"6. The complainant has failed to establish by the fair preponderance of the evidence that the Respondent in any way unlawfully discriminated against him in violation of the handicap discrimination provisions of the Wisconsin Fair Employment Act, section 111.31 et seq. Wis. Stats. (1977)."

Dated and mailed June 17, 1982

/s/ David A. Pearson, Chairman

/s/ Virginia B. Hart, Commissioner

/s/ Pamela I. Anderson, Commissioner

The Commission has deleted all of the Examiner's references to the Respondent's accommodation of the Complainant. Clearly, it is inconsistent to find that the Respondent accommodated the Complainant's handicap by extending the deadline for the Complainant to obtain his Ph.D. degree, while also finding that the Respondent was unaware of the Complainant's handicap at the time it was supposedly accommodating him. These extensions granted to Complainant were not motivated by the Respondent's desire to accommodate the Complainant's handicap.

In a handicap discrimination case the allocation of the burden of proof goes as follows: the complainant must initially prove that he or she is handicapped within the meaning of the Wisconsin Fair Employment Act. Once the complainant has proven that he or she is handicapped, the complainant must then prove that the employer's adverse action, e.g., discharges, refusal to rehire, was on the basis of the handicap. The Commission concludes that the Complainant has failed to prove that the Interim Executive Committee knew of the Complainant's handicap in May, 1975.  Thus, the Complainant has failed to show that the basis for the Respondent's adverse decision was his handicap.

190

Appealed to Circuit Court.  Affirmed December 22, 1982.  Appealed to the Court of Appeals.  Affirmed, in unpublished decision, August 26, 1983.

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