Wis.LIRC ER Decision: Theusch - May 22, 1998 - Proof - burdens and standards of proof - proof of pretext must include proof that it is a pretext for discrimination

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

FRANCIS A. THEUSCH, Complainant

STEEL CRAFT CORPORATION OF HARTFORD, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199601535, EEOC Case No. 26G961093

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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed: May 22, 1998
theusch.rsd : 101 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In the brief supporting his petition for commission review, the complainant challenges a number of specific factual findings made by the ALJ. The complainant goes on to assert that he has made a prima facie case of age discrimination, that the respondent's proffered legitimate nondiscriminatory reason for his discharge is not credible, and that age was the determining factor in the complainant's discharge. The complainant concludes by setting out the damages he has suffered as a result of the respondent's alleged discrimination, and the remedy he seeks.

The complainant first challenges the ALJ's finding that the respondent expected the skill level of its employes to increase over time through on-the-job training. The complainant points out that the respondent never formally communicated this expectation to its employes. The complainant also suggests the ALJ's finding on this point relies on the self-serving testimony of the respondent's management. However, Gary Elsinger, a machinist, testified that he tried to increase his skills to the point where he was assigned more delicate work, and that the respondent's managers were willing to allow workers to take on more responsibility. James Bowser, a welding supervisor, testified that he and the complainant had discussed the complainant learning how to operate additional machines, but the complainant indicated that he was unwilling without a pay raise. The commission concludes that the respondent's managers reasonably expected some development of skills from its workers, and that the workers were aware of that expectation.

The complainant also suggests that it is improper to compare the on-the-job skill development of Mr. Immel and Mr. Elsinger, who are both machinists, with that of the complainant, who was a laborer. However, the mere fact that the complainant had a different job does not mean the opportunity and expectation for skill development were lessened. Foreman Zingsheim and supervisor Bowser testified that the complainant was satisfied being a drill press operator and had no desire to learn how to operate more machines to increase the skills that machinist Elsinger described as limited. The clear inference from the record is that the complainant had the opportunity to develop his skills, but consciously chose not to do so.

The complainant also criticizes the ALJ's finding which sets out the complainant's primary duties; the complainant points to his testimony indicating he had other duties as well. While the commission acknowledges that the complainant testified he operated a number of machines, his testimony also indicates that his primary duties in the machine shop were substantially as the ALJ described them. For example, while the complainant's attorney points out the complainant testified he occasionally ran the brake press, the complainant also testified he refused to operate that machine when assigned to it. Moreover, the testimony of foreman Zingsheim and supervisor Bowser indicates that the complainant's main duties were operating the milling machine, the drill press, and tool sharpening in the machine shop, just as the ALJ found. (February 1997 transcript, pages 115 and 155.) On this record, the commission is satisfied that any omission of job duties from the contested finding is not significant.

The complainant also contests the ALJ's finding that the complainant did not operate certain machines because he was not interested in being trained to operate them or refused to operate them after being trained. The complainant asserts that this finding was unsupported by the record. However, the complainant did testify he was reluctant to use the brake press. He also testified he was trained how to use a surface grinder, despite his earlier testimony that he had never been trained on any machine he had not used before. (May 1997 transcript, pages 355 and 381.) Further, while the complainant suggested his training on the surface grinder was inadequate, the respondent's witness testified that he gave the same training to other workers, including Mr. Zingsheim, who was then able to operate the surface grinder. (May 1997 transcript, pages 272-74.) Finally, of course, Mr. Bowser's testimony points to the complainant's reluctance to be trained in the operation of new machines.

The complainant next criticizes several of the ALJ's findings dealing with the complainant's poor work performance, and the reasons why his performance problems were not discussed with him more often prior to his discharge. In addition to the complaints of the respondent's upper management, supervisor Bowser also testified the complainant's work had to be redone quite often. Mr. Bowser testified he had even gotten into a dispute with the complainant about his work performance because he was tired of having to plug weld the improperly drilled holes. (May 1997 transcript, page 159.) The complainant characterized Mr. Bowser's testimony as biased and inconsistent; however, the commission sees little to discredit Mr. Bowser's testimony.

The complainant also points out that the respondent's management discussed only a few instances of the complainant's mistakes or poor performance with him. The ALJ fully appreciated that point, and found that it was due in part to the fact the mistakes were found by workers on a different shift. It is clear from Mr. Bowser's testimony that mistakes made by the complainant were usually undetected until a later point in the production process. Whatever the reason, however, the ALJ is correct in noting in his memorandum opinion that the respondent's failure to regularly talk to the complainant about his performance problems was poor personnel management.

The complainant asserts, however, that the failure of the respondent's management to discuss the complainant's performance problems with him was indicative not only of poor personnel management, but of a discriminatory motive in his discharge. The complainant's assertion takes on added weight in light of the admission of the respondent's human resources manager, William Rayome, that he told the complainant a much younger man, specifically a high school student with six month's experience, could do the complainant's job as well or better than the complainant.

This leads to the complainant's assertion that the ALJ erred in his legal conclusion that the complainant failed to establish a violation of the Wisconsin Fair Employment Act by terminating his employment because of his age. An employe alleging age discrimination with respect to termination from employment makes a prima facie case by showing: (a) he is forty or older, (b) he was discharged, (c) he was qualified for the job, and (d) either he was replaced by someone not within the class or others not in the class were treated more favorably. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 173 (Ct. App. 1985).

The complainant has established a prima facie case of age discrimination on the record in this case. The complainant was over 40 years old, was discharged, was qualified for the job he had held for eight years and was replaced by a younger man. The burden then shifts to the respondent to articulate a legitimate nondiscriminatory reason for discharging the complainant. (1 ) The respondent has done this through the testimony of its management that the complainant was discharged for poor performance.

The core dispute in this case, then, is whether the respondent's articulated nondiscriminatory reason for the complainant's discharge was a pretext for discrimination based on age. Although the complainant has the burden of showing pretext, the court of appeals has noted:

"A complainant may establish pretext either directly by showing that a discriminatory reason more likely motivated the employer or indirectly by showing the employer's proffered explanation to be unworthy of credence. That a reason is pretextual does not mean it is false; the facts asserted may in fact be true but not the actual reason for the action taken. [Citations omitted.]"

Puetz Motor Sales, supra, at l26 Wis. 2d 175.

On the other hand, merely because an employer's articulated nondiscriminatory reason is pretextual does not necessarily mean the complainant must prevail. Rather, the evidence must persuade the commission that the pretext is a pretext for discrimination. Of course, the commission may reach this inference simply on the complainant's prima facie case and on the commission's disbelief of the articulated nondiscriminatory reason. Kovalic v. DEC International, 186 Wis. 2d 162, 167-68 (Ct. App. 1994).

The commission is satisfied that the respondent actually discharged the complainant because of performance concerns rather than because of his age. On the one hand, the respondent had other employes the complainant's age, or very near his age, against whom it has taken no adverse action. On the other hand, the respondent discharged another, much younger worker, Spencer Kellogg, for poor performance. The record does not indicate that Mr. Kellogg was given more warning before his discharge, or that younger workers generally were accorded a progressive disciplinary process which the complainant was denied.

More importantly, however, the record establishes that the complainant's job performance was unsatisfactory. He had little or no desire to learn new job duties. His performance in one of his primary duties, laying out jobs and drilling holes, was poor and frequently needed to be redone. In this context, Mr. Rayome's comment about replacing the complainant with a younger, less experienced worker, does not establish unlawful age discrimination. If anything, it shows the reverse: Mr. Rayome's assumption that a younger worker would generally be less experienced and a poorer performer than an older one. What is clear is that Mr. Rayome's comment does not show that the articulated non-discriminatory reason for the discharge was a pretext. Rather, it reinforces that poor job performance was the reason for the complainant's discharge as the respondent believed that, after eight years on the job, the complainant could be outperformed by a far less experienced worker.

The commission acknowledges that some of the witnesses who testified did not think the complainant's performance merited discharge, at least not without more warning. Of course, the same witnesses also testified they did not believe the complainant was discharged because of his age. Further, while Dennis Feucht, who was involved in the decision to fire the complainant, was less than an ideal supervisor, that does not prove a pretext. Nor is the commission inclined to draw an adverse inference from Mr. Feucht's apparent confusion as to which meeting he attended on the day of the complainant's discharge. (May 1997 transcript, page 260.) True, Mr. Feucht referred to the complainant by names such as "old fart" or "old fucker" and played puerile practical jokes on him. However, similar nicknames were commonly exchanged among many of the workers at the respondent's worksite, and the record contains ample proof that the complainant was not the only justifiably annoyed target of Mr. Feucht's practical joking.

Finally, the commission notes that the presiding ALJ, who saw all the witnesses as they testified, credited Mr. Rayome's explanation of his remark about replacing the complainant with a younger, less experienced worker. After carefully considering the record in this case, the commission concludes the ALJ reached the correct credibility assessments generally and on this point specifically.

cc: Janet L. Heins
John G. Pawley

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Footnotes:

(1)( Back ) Technically, of course, if an employer articulates a legitimate nondiscriminatory reason for a discharge, the issue of whether the employe has made a prima facie case becomes moot. Gentilli v. Badger Coaches, ERD case no. 8601411 (LIRC, July 12, 1990), affirmed Gentilli v. LIRC, Dane County Circuit Court (January 15, 1991); and U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983).