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


KATHLEEN A. GEITZ, Complainant

PABST BREWING COMPANY, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199600737, EEOC Case No. 26G9600810


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: July 8, 1998
geitzka.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Kathleen Geitz, performed clerical work for the respondent in its brewery department in Milwaukee, Wisconsin. She began work in this capacity in 1984. Geitz has had multiple sclerosis since 1974 and wears a leg brace. In March 1996 her employment was terminated during a large scale reduction in force. Geitz was 54 years of age when her employment was terminated. Following a hearing on her complaint of alleged age and disability (1) discrimination, the administrative law judge concluded that the respondent had not discriminated against Geitz in violation of the Fair Employment Act and dismissed her complaint. This petition for review by the commission followed.

The record supports the ALJ's determination that the respondent did not discriminate against Ms. Geitz on the basis of her age or disability when it terminated her employment. A mass layoff of the Milwaukee workforce was necessary after the respondent decided to transfer two-thirds of its beer production to the G. Heileman Brewing Company in La Crosse, Wisconsin. Gary Lewitzke, the corporate director of industrial relations, had sole responsibility for reducing the workforce. Personnel were laid off on a departmental basis, pretty much proportional to the loss of production, according to seniority. There were no transfers of employes across department lines to avoid layoffs. In some departments, such as the brewery department where Ms. Geitz had worked, the result was that no one remained to perform the clerical work and such work then fell on the department managers.

In her petition for review Ms. Geitz makes a number of arguments in opposition to the ALJ's dismissal of her complaint. For instance, Ms. Geitz asserts that prior to her termination she had trained Julie Dudzik, a younger, less senior, nondisabled employe to perform her duties in the brewery department but she did not receive cross-training in Ms. Dudzik's duties. Ms. Geitz did begin to train Ms. Dudzik in September 1995. Ms. Dudzik worked in a different department (quality assurance). The record shows that during this period the respondent was providing some cross- training so that when employes went on vacation there would be someone to cover their jobs. There was no need to cross-train Ms. Geitz to perform Ms. Dudzik's work in the quality assurance department because there was another individual in that department available to perform the clerical functions. Moreover, the record further shows that Ms. Dudzik did not replace Ms. Geitz or perform any of her duties following the reduction in force.

Ms. Geitz has further asserted that the respondent "declined to provide requested information regarding age and handicap status information regarding layoff." This assertion apparently refers to the equal rights officer's statement contained in the initial determination finding probable cause to believe that the respondent had violated the Act. The case file shows that prior to his issuance of the initial determination, the equal rights officer had requested a compilation of various data regarding the layoff of clerical, technical and administrative personnel in all departments. In response to this assertion the respondent asserts in its answer to the petition for review that it did not decline to provide the requested information, rather, the investigator proceeded to issue the initial determination notwithstanding the respondent's assurance that the requested information would be forthcoming in a matter of just several days. In any case, the evidence presented at the hearing showed that the reduction in force was carried out on a department by department basis, strictly according to seniority.

Ms. Geitz apparently further asserts that the ALJ's decision is "defective" because it was not based on pertinent information supplied regarding her "handicap, termination, and replacement by a younger person, 120 days prior to her eligibility for retirement," and because the respondent did not offer testimony to explain its reasons for selecting her for layoff rather than Ms. Dudzik nor did it rebut her version of the events that occurred. These arguments fail.

Ms. Geitz has not identified what pertinent information the ALJ should have based his decision on. At the hearing Ms. Geitz testified about a comment allegedly made in 1995 by one of her supervisors (Keith Hodgins), which she apparently interpreted as relating to her disability, when told about the possibility of job eliminations. (2) Even assuming that Keith Hodgins made the comment which Ms. Geitz attributes to him, however, this fails to provide any basis for concluding that her employment was terminated because of her disability since Gary Lewitzke was solely responsible for reducing the workforce. As noted above, Ms. Dudzik did not replace Ms. Geitz. Ms. Geitz' termination of employment did not make her ineligible for company retirement benefits. She simply received a reduced pension benefit because she had not yet reached age 55 in order to be eligible for company "early retirement benefits." Mr. Lewitzke was made aware that Ms. Geitz' termination of employment would cause her to fall short of the age 55 early retirement benefit, but recognized that there was nothing that could be done to address her concerns.

Finally, contrary to argument by Ms. Geitz, the respondent explained its reasoning for selecting her for layoff. Specifically, that layoffs were determined on a department by department basis, strictly according to seniority. Ms. Dudzik did not work in the same department as Ms. Geitz.

The evidence fails to establish that the respondent discriminated against Ms. Geitz on the basis of age or disability in violation of the Act when it terminated her employment. Accordingly, the commission has affirmed the decision of the administrative law judge.

cc: Michael T. Sheedy
Jill J. Gladney


Appealed to Circuit Court. Affirmed February 12, 1999.

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Footnotes:

(1)( Back ) The obsolete term "handicap" in the Wisconsin Fair Employment Act has been replaced generally with the term "disability" by recently-enacted remedial legislation. 1997 Wis. Act 112.

(2)( Back ) Allegedly, Hodgins responded "I don't mean to be unkind to you, but take a look at yourself" when Ms. Geitz inquired about the possibility of a job being found for her after hearing about the possibility of job eliminations.