Szleszinski v. LIRC, 2005 Wisc. App. 832

October 31, 2005

In a recent case, the Wisconsin Court of Appeals found that an employer violated the Wisconsin Fair Employment Act (“WFEA”) when it terminated an employee without sufficient evidence to support the “valid safety” defense. The plaintiff, Leon Szleszinski, was a truck driver who had been previously diagnosed with Wilson’s disease. Wilson’s disease is a disorder that causes copper retention, and can manifest in neurological problems, liver disease, or other symptoms. Szleszinski’s diagnosing physician called it a very mild case and Szleszinski managed his disease with medication. Prior to beginning employment, Szleszinski underwent a medical examination as required by federal regulations, and was cleared to drive.
The employer received two complaints of erratic driving against Szleszinski. Szleszinski did not recall either incident. As a result, the employer required Szleszinski to be medically re-evaluated. The employer sent Szleszinski’s medical records to a neuro-oncologist named Dr. Windhorst for a medical evaluation. The result of the additional medical examination was a finding that:

Wilson’s disease is a progressive neurological disease, and this is of grave concern, given the responsibilities of driving large commercial vehicles on the highways. The Department of Transportation Conference on Neurological Disorders and Commercial drivers’ recommends, without exception, disqualification for individuals with confirmed diagnosis of Wilson’s disease.

Based on Dr. Windhorst’s report, the employer informed Szleszinski that it no longer considered him qualified to drive, and effectively ended his employment. Szleszinski obtained a second medical opinion, which stated that his condition did not impact his ability to drive, and sued on the basis that the employer violated the WFEA alleging discrimination based on disability.
A complainant in a handicap discrimination case must show that: (1) he or she is handicapped within the meaning of the WFEA; and (2) the employer took one of the enumerated actions on the basis of handicap. If the complainant makes the requisite showing, the burden shifts to the employer to provide a valid defense. Under the WFEA, it is not discrimination if the employer takes an action, such as refusal to hire or termination of employment, when the nature of the disability is reasonably related to the individual’s ability to adequately undertake the job?related responsibilities of that individual’s employment, membership or licensure. In the case of common carriers, the profession’s “special duty of care may be considered in evaluating whether the employee or applicant can adequately undertake the job-related responsibilities of a particular job.”
Federal regulations allow only physically qualified individuals to drive commercial vehicles. However, the act requires a case-by-case assessment of each individual. Dr. Windhorst did not make an individualized determination about Szleszinski’s ability to drive, but recommended disqualification simply because the DOT report said that all Wilson’s patients should be disqualified. Since Dr. Windhorst did not actually provide a physical examination, the Court of Appeals did not consider his evaluation, and found for the plaintiff.
In conclusion, the Court of Appeals recognized that an employer may terminate an employee in the event that a disability is reasonably related to the individual’s ability to adequately undertake job-related responsibilities of employment. However, the Court found that Szleszinski’s employer failed to base its decision on an adequate medical evaluation of the employee’s disability.
The lesson from this case: To ensure that you comply with the WFEA, you must conduct a case-by-case assessment of each individual alleging a disability.
If you have questions regarding the above, please contact any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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