Samens v. Labor and Industry Review Com'n
| Decision Date | 27 March 1984 |
| Docket Number | No. 81-2215,81-2215 |
| Citation | 345 N.W.2d 432,117 Wis.2d 646 |
| Parties | , 47 Fair Empl.Prac.Cas. (BNA) 1312, 35 Empl. Prac. Dec. P 34,833, 1 A.D. Cases 584 Michael SAMENS, Petitioner-Appellant, v. LABOR AND INDUSTRY REVIEW COMMISSION, Respondent. Wisconsin Power and Light Company, Respondent-Petitioner. |
| Court | Wisconsin Supreme Court |
Frank J. Bucaida, Madison, argued, for respondent-petitioner; Steven J. Schooler and Brynelson, Herrick, Gehl & Bucaida, Madison, on brief.
William Smoler, Madison, argued, for petitioner-appellant; Smoler, Albert & Rostad, Madison, on brief.
David C. Rice, Asst. Atty. Gen. with whom on the brief was Bronson C. La Follette, Atty. Gen., amicus curiae for the Labor and Industry Review Com'n.
Linda A. Leaf, Milwaukee, and Debbie M. Zuckerman, Alexandra K. Finucane and Epilepsy Foundation of America, Landover, Md., amicus curiae for the Epilepsy Foundation of America, Wisconsin Epilepsy Ass'n, Inc. and Wisconsin Coalition for Advocacy.
This is a review of an unpublished decision of the court of appeals that reversed the judgment of Columbia county circuit court Judge Howard Latton in an administrative review action. The judgment which the court of appeals reversed was an order of the Wisconsin Labor and Industry Review Commission, dismissing Michael Samens' handicap discrimination complaint against Wisconsin Power and Light Company. The Wisconsin Labor and Industry Review Commission (commission) determined that Samens had failed to show that Wisconsin Power and Light Company (WP & L) had violated the Wisconsin Fair Employment Act (FEA) when it refused to hire him for the job of truck driver/groundman because Samens suffered from epilepsy. The circuit court affirmed the commission's order, and the court of appeals reversed and remanded the matter, determining that the commission had utilized the improper standard in deciding that WP & L's refusal to hire Samens was justified under the exception to handicap discrimination found in the FEA. We reverse the court of appeals.
Samens was eighteen years old when he applied for the position of truck driver/groundman with WP & L on September 29, 1975. It appears that he had a long history of epilepsy, having suffered from a series of petit mal seizures throughout his childhood. His last recorded childhood seizure occurred when he was seven years old. On December 9, 1974, approximately ten months before he submitted his job application with WP & L, Samens experienced his only grand mal seizure. At the time of the seizure, he was also suffering from a bout with infectious mononucleosis. Following his seizure, his neurologist, Dr. Kenneth M. Viste, Jr., performed an electroencephalogram. Dr. Viste's records indicate that the electroencephalograph was "grossly abnormal," showing bilateral spikes at 3 1/2, 4 1/2 per second, generally with poly spikes. The doctor interpreted this reading as associated with an occurrence of clinical seizures, "likely of a generalized type."
On June 12, 1975, a second electroencephalogram was performed on Samens by Viste. Once again, the doctor noted an abnormal recording, which he continued to interpret as associated with the occurrence of clinical seizures. The record indicates that Dr. Viste controlled Samens' condition by virtue of daily doses of both Dilantin and Phenobarbital, up until November of 1976. After that time, Samens was maintained on a daily dose of three hundred milligrams of Dilantin.
Samens was interviewed for the position at WP & L on December 9, 1975. During the interview, Samens revealed that he had a history of epilepsy. 1 In a letter dated December 16, 1975, Samens was told that he had been rejected by the company. Thereafter, he continued to inquire with WP & L concerning future employment as a truck driver/groundman. After the company requested and received Samens' medical records, he was informed that other, clerical-type positions were available to him, but not that of a truck driver/groundman.
On December 8, 1976, Samens filed a complaint with the Department of Industry, Labor and Human Relations, Equal Rights Division. Following an investigation, the department's investigator rendered an initial determination on May 9, 1977, finding probable cause to believe that WP & L had discriminated against Samens because of his epilepsy, contrary to the FEA. Efforts at conciliation between the parties failed, and a hearing was conducted before a hearing agent, pursuant to Section 111.36(2), Stats., on November 10, 1977, and April 7, 1978. The hearing agent issued his decision, with an accompanying opinion, on May 5, 1978. The agent's order, with a few minor corrections, was adopted by the full commission on June 26, 1980.
The hearing agent found that as a matter of fact, WP & L had refused to hire Samens because of his epilepsy. However, the agent also found that there was a "possibility" that Samens could suffer a seizure while working and noted that the position of truck driver/groundman was such that "the very lives of co-employees" on the crew revolved around the successful performance of the groundman's duties. After taking into account the effects of a possible seizure upon procedures in which a truck driver/groundman would be involved, the agent concluded that WP & L's decision that Samens' employment presented an "unacceptable risk" was "completely with foundation." Accordingly, the hearing agent and, subsequently, the entire commission determined that Samens' handicap discrimination complaint should be dismissed because he had not shown that WP & L had violated the FEA when the company rejected his application.
Samens sought judicial review of the commission's order in the Columbia county circuit court, pursuant to ch. 227 of the Wisconsin Statutes, on July 11, 1980. Samens argued that the commission had utilized the improper legal standard in determining that his employment would create a hazard at WP & L. Because the hearing agent had found that there was only a "possibility" that Samens would suffer a seizure while working as a truck driver/groundman, Samens concluded that the agent had utilized the standard for common carriers set out in Boynton Cab Co. v. ILHR Department, 96 Wis.2d 396, 291 N.W.2d 850 (1980). 2 Samens challenged the use of this standard because WP & L does not function as a common carrier and argued that the agent should have utilized the more rigorous standard enunciated in Bucyrus-Erie Co. v. ILHR Department, 90 Wis.2d 408, 280 N.W.2d 142 (1979). 3 The commission, also a party in the instant case, brought a motion in circuit court to remand the matter to the commission for further proceedings to consider the appropriate legal standard for resolving the dispute and, utilizing this legal standard, to determine whether WP & L's rejection of Samens was legitimate under Section 111.32(5)(f), Stats. (1973). 4 The circuit court denied the motion and subsequently issued its decision on September 30, 1981, followed by an order and judgment dated October 22, 1981.
The court noted that the employer bears the burden of establishing that its conduct in refusing to hire an individual is legitimate under the exception to handicap discrimination once the complainant has proved that the refusal was in fact based upon the complainant's handicap. The court also noted that the Wisconsin Supreme Court decisions addressing this issue have indicated "flexibility" in dealing with the subject and have also revealed that "each case should be decided upon its own circumstances and merits." Although the court stated that in this case the facts appeared to more closely resemble those in the Boynton case, the judge concluded that the commission's decision had met the more stringent "reasonable probability" standard as set forth in the Bucyrus-Erie case. Thus, the court did not address the issue of whether the lesser Boynton standard should be applied in the instant case. Based upon this determination, the circuit court affirmed the commission's order dismissing Samens' complaint.
Samens then appealed to the court of appeals. The court of appeals stated that the controlling issue was whether the commission had utilized the proper standard in determining whether WP & L was justified under the section 111.32(5)(f) exception to handicap discrimination for its rejection of Samens because of his epilepsy. After noting the differences in the standards set forth by this court in the Boynton and Bucyrus-Erie cases, the court rejected the argument that WP & L had only to show a "rational relationship between Samens' handicap and its decision not to employ him because of safety considerations." The court of appeals refused to extend the Boynton standard beyond the area of common carriers, determining that Boynton did not create a "hazardous occupation" exception to the Bucyrus-Erie rule which ought to include companies generating and transmitting electricity.
The court of appeals then reviewed the commission's decision in order to determine whether it met with the "reasonable probability" standard articulated by this court in Bucyrus-Erie. The court noted that the commission had referred only to the fact that a "possibility" existed that Samens might suffer a seizure while working as a truck driver/groundman and that there was no finding of whether the possibility of such a seizure amounted to a "materially enhanced risk of death, or serious injury to the employee or others." Bucyrus-Erie Co. v. ILHR Department, 90 Wis.2d at 423, 280 N.W.2d 142. Although Samens urged the court to find that as a matter of law, WP & L had failed to meet its burden of proving a reasonable probability of hazard, the court of appeals refused to make such a determination. Accordingly, the court concluded that remand to the commission for further findings consistent with the Bucyrus-Erie standard was the appropriate remedy. Wehr Steel Co. v. ILHR Dept., 106...
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