FRANK A CRAMER, Complainant

WOODMANS FOOD MARKET, 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 January 14, 2005
cramefr . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The Wisconsin Fair Employment Act (WFEA) requires that a complaint be filed within 300 days of the date that the alleged discrimination occurred. Wis. Stat. § 111.39(1). As a result, the actionable period here is June 27, 2002, through April 23, 2003, i.e., the complaint would be timely filed only as to acts occurring within this 300-day period.

In regard to his accommodation allegation, it is undisputed that the complainant was placed on a medical leave of absence on or around May 6, 2002, and did not perform services for the respondent thereafter. As a result, any requirement that the complainant perform job tasks inconsistent with his medical restrictions would necessarily have been imposed on or before May 6, 2002, which is outside the 300-day filing period.

Clearly, the February 2, 2002, termination of the complainant's employment was also outside this 300-day filing period.

The complainant argues that these timely filing failures should be excused because he was relying upon advice from his union representative in prosecuting his claim. However, although the 300-day filing limit is not a jurisdictional prerequisite, but a statute of limitations which is subject to waiver, estoppel, and equitable tolling (See, Milwaukee Co. v. LIRC and Nancy Williams, 113 Wis. 2d 199, 335, N.W.2d 412 (Ct. App. 1983); Ault v. Allen Bradley Co. Inc. (February 5, 1998)), the circumstances here do not justify the application of any of these exceptions. The actions of the complainant's union representative are imputed to him, i.e., the failures of the union representative are considered to be the failures of the complainant.

Finally, the complainant alleges disability discrimination in regard to his termination in the summer of 2002. The record supports a conclusion that the complainant had no reason to be aware of this termination until July or August of 2002, which is within the actionable period.

The complainant's initial burden in a disability discrimination case is to establish that he is an individual with a disability within the meaning of the Wisconsin Fair Employment Act (WFEA). Boynton Cab Co. v. DILHR, 96 Wis. 2d 396, 291 N.W.2d 850 (1980); Target Stores v. LIRC, 217 Wis. 2d 1, 576 N.W.2d 545 (1998). The WFEA defines a disabled individual in Wis. Stat. § 111.32(8) as one 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 WFEA 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).

Although the respondent does not dispute that the complainant had been treated for a neck/back injury and for carpal tunnel syndrome, in order to sustain his burden to prove that these conditions constituted cognizable impairments within the meaning of the WFEA, the complainant was required to offer competent medical evidence as to the nature, extent, and permanence of these conditions. See, Erickson v. Quad Graphics, Inc., ERD Case No. CR200102388 (LIRC May 25, 2004). The only medical evidence offered by the complainant is a return-to-work slip signed by the complainant's treating physician on June 27, 2002, which the complainant acknowledges released him to return to work without restriction. This medical evidence supports a conclusion that the employee's neck/back and carpal tunnel conditions were temporary ones. The commission has consistently held that conditions which are merely temporary do not fall within what is intended to be covered by the WFEA's prohibition on disability discrimination. See, Erickson, supra; Greenwood v. Ross Furniture, ERD Case No. CR200001517 (LIRC Dec. 30, 2004). Moreover, the respondent had no reason, after learning that the employee had been released to return to work without restriction, to perceive him to be disabled. See, Greenwood, supra. Although the complainant asserts that he was still undergoing physical therapy after June 27, 2002, the record does not establish that the respondent had any reason to be aware of this, or that such knowledge would reasonably have led the respondent to perceive the complainant to be disabled, particularly given the June 27 release without restriction from the complainant's treating physician.

The commission agrees with the administrative law judge that the complainant failed to sustain his burden to prove disability discrimination as alleged.

cc: Attorney Steven C. Zach

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