Chicago & N.W.R.R. v. Labor and Industry Review Commission, 78-416

• Decision Date: 16 August 1979
• Docket Number: No. 78-416,78-416
• Citation: 283 N.W.2d 603,91 Wis.2d 462
• Parties: , 21 Fair Empl.Prac.Cas. (BNA) 1744, 20 Empl. Prac. Dec. P 30,210, 1 A.D. Cases 113 CHICAGO AND NORTH WESTERN RAILROAD (Chicago and North Western Transportation Company), Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent. * Case
• Court: Wisconsin Court of Appeals

Page 603

283 N.W.2d 603

91 Wis.2d 462, 21 Fair Empl.Prac.Cas. (BNA) 1744,

20 Empl. Prac. Dec. P 30,210, 1 A.D. Cases 113

CHICAGO AND NORTH WESTERN RAILROAD (Chicago and North Western Transportation Company), Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent.^*

Case No. 78-416.

Court of Appeals of Wisconsin.

Submitted on Briefs Feb. 16, 1979.

Opinion Released Aug. 16, 1979.

Opinion Filed Aug. 16, 1979.

Borgelt, Powell, Peterson & Frauen, S. C., Milwaukee, for petitioner-appellant.

Bronson C. La Follette, Atty. Gen., and David C. Rice, Asst. Atty. Gen., for respondent.

Before GARTZKE, P. J., and BABLITCH and DYKMAN, JJ.

GARTZKE, Presiding Judge.

This is an appeal from the judgment of the circuit court for Dane County affirming the order of the Labor and Industry Review Commission in a handicap discrimination case brought under the Wisconsin Fair Employment Act. The commission determined that the appellant railroad engaged in handicap discrimination by its disqualification of Glenn A. Pritzl April 24, 1972, as a welder. The commission required his reinstatement in that capacity and ordered that he recover backpay and benefits to April 24, 1972.

Mr. Pritzl filed his complaint under the Wisconsin Fair Employment Act in 1973, alleging that he was discriminated against with respect to employment because of a handicap due to his condition of epilepsy. A hearing was held in 1975. The commission's final order was entered September 16, 1977. Appellant petitioned the circuit court for review. June 15, 1978, the circuit court rendered judgment affirming the commission. After filing notice of appeal to the court of appeals, appellant moved the circuit court for relief from the judgment on grounds of newly discovered evidence. The circuit court denied the motion February 19, 1979. Appellant has made the same motion to this court.

The issues are:

1. Is there substantial evidence to support the commission's decision that the employee is able to perform his job-related duties as a welder at the standards set by the employer?

2. Is the post-judgment order of the circuit court denying appellant's motion for relief on grounds of newly discovered evidence reviewable on appeal from the judgment?

3. May we reverse the judgment of the circuit court affirming the commission's order on the ground that it is probable that justice has miscarried?

4. May we grant a motion to relieve appellant from the judgment or for the taking of additional testimony, pursuant to sec. 806.07(1)(b) or (h), Stats.?

5. May the 1974 amendment to ch. 111, Stats., authorizing the department to award backpay in cases of employment discrimination be applied retroactively?

6. Has the Railway Labor Act or Railroad Safety Act preempted state legislation as to employment discrimination against the handicapped?

7. Has appellant been denied due process of law by unreasonable administrative delay?

1. Employee Not Shown To Be Unable To Perform Duties

Sections 111.32(5)(a) and 111.325, Stats.1973, of the Wisconsin Fair Employment Act make it unlawful for an employer to discriminate against an employee because of a handicap.

Section 111.32(5)(f), Stats.1973, provides, in relevant part:

The prohibition against discrimination because of handicap does not apply to failure of an employer to employ or to retain as an employe any person who because of a handicap is physically or otherwise unable to efficiently perform, at the standards set by the employer, the duties required in that job.

Mr. Pritzl was not permitted to continue his employment because of his handicap, epilepsy. The burden is therefore on the appellant employer to show that the exception provided by sec. 111.32(5)(f), Stats.1973, applies. Chicago, M., St. P. & P. RR. Co. v. ILHR Dept., 62 Wis.2d 392, 398, 215 N.W.2d 443 (1974).

Section 111.32(5)(f), Stats.1973, includes a "future hazards" exception. That exception arises out of Chicago, M., St. P. & P. RR. Co. v. ILHR Dept., 62 Wis.2d 392, 398, 399, 215 N.W.2d 443. The court said in that case that there was no evidence that the handicapped employee "was unable to efficiently perform the duties of his job" and, "In fact, there was no medical testimony that, to a reasonable degree of medical certainty, the working conditions were or would be in the future hazardous to his health."

Bucyrus-Erie Company v. DILHR, 90 Wis.2d 408, 424, 280 N.W.2d 142, 150 (1979), describes the burden on the employer to come within the exception as follows:

If the evidence shows that the applicant has a present ability to physically accomplish the tasks which make up the job duties, the employer must establish to a Reasonable probability that because of the complainant's physical condition, employment in the position sought would be hazardous to the health or safety of the complainant or to other employees or frequenters of the place of employment. (Emphasis added.)

The critical finding of fact by the commission disputed by appellant is that Mr. Pritzl's handicap is not reasonably related to his ability to adequately undertake the job-related responsibilities of a welder for appellant. That finding, considered in light of the Bucyrus-Erie Statement of the burden imposed upon the employer by sec. 111.32(5)(f), Stats.1973, implies that the appellant has not shown to a reasonable probability that continued employment of Mr. Pritzl as a welder will be hazardous to him or other employees or frequenters of the place of employment.

Findings and orders of the commission under the Fair Employment Act are subject to judicial review pursuant to ch. 227, Stats., by virtue of sec. 111.37, Stats.1973. Section 227.20(6), Stats., provides that an agency's finding of fact will not be overturned unless the finding " . . . is not supported by substantial evidence in the record."

A reviewing court does not independently weigh the evidence or pass on the credibility of the witnesses. City of Superior v. ILHR Department, 84 Wis.2d 663, 666, 267 N.W.2d 637 (1978). We are prohibited by statute from substituting our judgment for that of the agency as to the weight of the evidence on a disputed finding of fact. Sec. 227.20(6), Stats. We cannot overturn an agency's finding even if it may be against the great weight and preponderance of the evidence. Holtz & Krause, Inc. v. DNR, 85 Wis.2d 198, 204, 270 N.W.2d 409 (1978); City of Superior v. ILHR Department, 84 Wis.2d 663, 666, 267 N.W.2d 637; Voight v. Washington Island Ferry Line, 79 Wis.2d 333, 342, 255 N.W.2d 545 (1977). Particularly apropos is Robertson Transport. Co. v. Public Serv. Comm., 39 Wis.2d 653, 658, 159 N.W.2d 636, 638 (1968), where the court said: "There may be cases where two conflicting views may each be sustained by substantial evidence. In such a case, it is for the agency to determine which view of the evidence it wishes to accept."

Mr. Pritzl began employment with appellant in 1960. He had a non-industrial accident in May, 1971 and suffered a seizure a month later. He fell off a horse in August, 1971 and took leave of absence from his employment. He had a second seizure in October, 1971 which, for the first time, was diagnosed as epileptic. A neurologist prescribed anti-epileptic medication. As he had no seizures between October, 1971 and April, 1972, his family physician believed he could return to work. He regained his motor vehicle operator's license. He was examined in April, 1972 by company physicians, who concluded he could return to work as a welder. Appellant, however, has a rule which prohibits an employee from returning to work if the employee is subject to or has had a history of epileptic seizures and if the employee operates a motor car, motor vehicle or power driven work equipment as part of his duties. Welders come within that rule. The company medical director recommended that Mr. Pritzl not be rehired as a welder.

The director testified that appellant should not rehire Mr. Pritzl as a welder unless it is established that Mr. Pritzl does not have epilepsy. The potential risks in Mr. Pritzl's work are such that, in the opinion of the medical director, Mr. Pritzl should not be rehired because of the possibility that he might have another attack, if only because he might fail to take medication, a matter over which the company has no control. A person having a seizure may lose consciousness and suffer involuntary movement of the extremities. Medication controls the seizure disorder but does not cure epilepsy. In the director's opinion, the continued employment of Mr. Pritzl would be hazardous to him and his fellow employees. He advised appellant that Mr. Pritzl should not be permitted to work around moving equipment or on elevations. As welders' responsibilities include work under these conditions, appellant refused to rehire Mr. Pritzl.

The railroad's welders spend about 60% Of their time working on tracks in switching areas. They may work as far as ten miles from the nearest town and on bridges as high as fifty feet or under derailed cars. A welder operates an acetylene torch but always works with a helper. The welder wears a mask while welding or cutting track or other metal and must concentrate on the work before him. The helper must maintain a lookout for danger to the welder. A welder operates a "motor car," a motorized version of a handcar used to transport the welder and his helper on rail track to worksites. A welder also operates a pickup truck with rubber tires and flanged wheels so that it may be driven on a highway or on rail tracks. Motor cars operate at speeds up to thirty-five and the trucks at speeds up to sixty-five miles per hour. The only other moving equipment operated by a welder are rail grinders. Grinders have an abrasive wheel and exposed moving parts which, however, are at least partially shielded. A welder must many times stop his work on a track to let a train pass. He may be separated from his helper as much as fifteen minutes while a...