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World Mart6/21/1993
The essential issue presented by this Petition for Judicial Review of the Findings of Facts, Conclusions of Law and Order by the Wyoming Fair Employment Commission of the Department of Employment of the State of Wyoming (Commission) is the sufficiency of the evidence and other matters of record to justify the relief ordered in favor of James A. Ditsch (Ditsch), a handicapped worker. The hearing officer for the Commission found Ditsch had been passed over for promotion and, subsequently, demoted because of unlawful handicap discrimination. American Handicapped Workers (AHW), as employer , contends that, because the person selected for the promotion also was handicapped, Ditsch did not sustain his burden of proof, and the employer is entitled to select the person most qualified for a position so long as there was no discrimination against a handicapped person. In addition, collateral issues are presented relating to proof of damages and the propriety of that aspect of the order requiring AHW to implement an affirmative action plan. We are satisfied there is no error in this proceeding that would justify a reversal of the order of the Commission. We affirm the Findings of Facts, Conclusions of Law and Order by the Commission.
The issues assigned by AHW in its brief are:
1. Whether Respondent James A. Ditsch failed to establish a prima facie case of handicap discrimination, since Petitioner American Handicapped Workers hired a handicapped person for the disputed position.
2. Whether the Administrative Hearing Officer's personal determination regarding the applicants' qualifications sufficiently supports a conclusion of handicap discrimination.
3. Whether the Administrative Hearing Officer erred in shifting the burden of proof to Petitioner to prove non-discrimination.
4. Whether the Administrative Hearing Officer improperly awarded back pay of $66.81 per day, plus interest, with no basis in the record, no relationship to the findings of fact, and no requirement for mitigation of losses.
5. Whether the Administrative Hearing Office abused his discretion in ordering Petitioner to develop and implement an affirmative action program to eliminate the preferential hiring of handicapped or disabled individuals.
The issue as articulated by Ditsch in his Answer Brief of Appellee is:
A. Whether the Department of Employment's December 2, 1991 Final Order is unsupported by substantial evidence or is arbitrary, capricious, in excess of statutory authority, or otherwise unlawful.
In January of 1988, Ditsch, a quadriplegic confined to a wheelchair, was employed as a telemarketer by AHW in its Cheyenne office. AHW is a private, for-profit, telemarketing company that hires only handicapped telemarketers to sell light bulbs and other products to the public. Ditsch was paid $3.35 plus a commission as a telemarketer. On August 27, 1988, Ditsch was promoted to supervisor and assigned the functions of collecting delinquent accounts, verifying orders, returning packages, and training other telemarketers. As a supervisor, Ditsch was given a pay raise from $4.50 to $5.00 an hour. He was the recipient of a performance award by his supervisor, the branch manager.
In January of 1989, the branch manager decided to relocate, and Ditsch applied for the vacant position. Ditsch was one of three finalists selected for consideration for branch manager. Neither of the other two finalists, one male and the other a female, had a visible, physical handicap, but both had a history of alcohol abuse. The history of the female finalist included a sentence of sixteen months i
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