RICHARD W. BINDER, Complainant


ERD Case No. 8721401

On September 8, 1989, an Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter dismissing the Complainant's complaint of alleged age discrimination in regard to discharge. Complainant subsequently filed a written petition for Commission review of the matter.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:


The decision of the Administrative Law Judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed at Madison Wisconsin December 18, 1990.

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

Pamela I. Anderson, Commissioner


On appeal the Complainant argues that paragraphs 5, 6 and 7 of the Administrative Law Judge's findings, and Conclusion of Law #3, are in error as they are contrary to the evidence and the reasonable inferences from that evidence. Complainant further argues that the credibility determinations made by the Administrative Law Judge were contrary to the evidence and that because those credibility determinations were made more than one year beyond the date of the hearing, it violated Complainant 's right to due process of law.

In Finding of Fact #5 the Administrative Law Judge states:

"5. Binder' s remarks about Nercon and Nerenhausen increased in both intensity and frequency during 1982 and 1983. In approximately June, 1 983 Nerenhausen told Binder that his employment would be terminated if he did not curtail his derogatory comments. At least two other people, Mr. Senna and Mr. Avallon, also spoke with Binder and told him his job was in danger if he did not contain his remarks."

Support for this finding can be found in the testimony of Carl Avallon, Charles Senna and even the Complainant himself. Avallon, a customer who visited Respondent frequently, testified that the frequency of Complainant' s derogatory comments had gotten worse around the time of Complainant' s discharge and that the situation had gotten fairly volatile and open from Complainant's point of view. Avallon further testified that he felt like a "go-between" as he would have conversations about Complainant' s derogatory comments with Nerenhausen who would state that if it continues Complainant would be let go, and then would speak with Complainant and tell him that he ought to cool it. Senna, Complainant' s own witness, testified that prior to Complainant' s discharge he was told by Nerenhausen that Complainant had been warned he would be discharged if Nerenhausen ever heard about Complainant making any more derogatory remarks. Senna further testified that he talked to Complainant about the warning and there was no disagreement from Complainant as to having been given this warning. Complainant himself initially conceded that Senna had probably talked to him about making derogatory comments and the possibility of discharge over those comments, but he later denied that that conversation took place.

In Finding of Fact #6 the Administrative Law Judge states:

"6. On the same day that Mr. Nerenhausen threatened Binder with the loss of his employment, and after his meeting with Nerenhausen, Binder went to the tavern referred to above (Elmer' s Supper Club) and made derogatory comments about Nerenhausen as he had in the past. Later that evening Nerenhausen went to the same tavern and was told by several people that Binder had been there earlier and that his comments had been especially vituperative. It was at that point that Nerenhausen made the decision to terminate Binder's employment."

Support for Finding of Fact #6 is almost wholly based on the testimony of Nerenhausen. The Administrative Law Judge credited Nerenhausen' s testimony that on the evening of the same day Complainant was warned to stop making the derogatory comments, several people in the barroom at Elmer's Supper Club told him that Complainant had been really calling him a lot of names. Nerenhausen testified that he could not give the specific name of any one individual that had told him this, stating that he did not go around with a pencil and pad writing people's names down. Additionally, Nerenhausen also testified that he made the decision to discharge the Complainant upon hearing that Complainant had continued to bad-mouth him. Based on the above, the Administrative Law Judge determined that age was not a factor in the termination of Complainant' s employment (Finding of Fact #7) and concluded that Respondent had not violated the Wisconsin Fair Employment Act. (Conclusion of Law #3)

The Complainant has argued that because Nerenhausen could not cite the name of any individual who confirmed that the derogatory comments continued, Respondent' s explanation for its action is a pretext for age discrimination. While Nerenhausen's inability to recall the names of any individuals who had told him that Complainant had continued with his derogatory comments could suggest some evidence of pretext, it is the Complainant 's burden to show by a preponderance of the evidence that he has been the victim of intentional discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981). He may succeed in this either directly by persuading the trier of fact that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. Burdine, supra.

Based on the record in this case the Commission is not persuaded that the Complainant has met his burden. As noted above, the Administrative Law Judge credited Nerenhausen' s testimony that Nerenhausen continued to hear that derogatory comments were being made by Complainant after he had been warned to stop making them. The Commission finds no reason to question the Administrative Law Judge's determination in this regard. While at the hearing Complainant claimed that Nerenhausen was not a credible witness due to alleged inconsistent testimony, the testimony of Complainant himself was inconsistent. No better example can be found than Complainant's testimony initially conceding that Senna had probably talked to him about making derogatory comments and the possibility of discharge over those comments, and his subsequent denial of the same only a short time later. Moreover, other than Nerenhausen's inability to recall who told him Complainant had continued to make the derogatory comments there is nothing in the record to establish that Nerenhausen had indeed been motivated to discharge Complainant because of his age. At the hearing Complainant attempted to prove that the Respondent's explanation for Complainant's discharge was pretextual based on an alleged differential treatment of younger employes who had also made derogatory comments about Nerenhausen. However, there is nothing in the record to establish that Nerenhausen was aware that derogatory comments were being made by younger employes at the time of Complainant' s discharge. Even more important, there is nothing in the record to show that these younger employes had made derogatory comments about Nerenhausen in public and in front of customers as Complainant had done.

Complainant had also argued there was evidence of pretext because Nerenhausen had known him to be a "grumbler" prior to his discharge. However, this argument ignores the undeniable evidence that the intensity and frequency of Complainant' s derogatory comments had increased around the time of his discharge and that he had been warned to stop making those comments or face discharge. It is also interesting to note that at the hearing the Complainant failed to assert that he in fact had stopped making derogatory comments about Nerenhausen.

Based upon all of the above, the Commission cannot conclude that the Administrative Law Judge committed any error with respect to his findings of fact, conclusions of law or credibility determinations. All are amply supported by the record. While it is indeed unfortunate about the amount of time that it has taken this case to be processed, there is nothing to suggest that this delay adversely affected the Administrative Law Judge's ability to decide questions of credibility. Also, it has been held that administrative delay in the issuance of a decision under the Wisconsin Fair Employment Act does not constitute a denial of due process. Chicago and N.W. Railroad v. LIRC (Pritzl), 91 Wis. 2d 462 (Ct. App. 1979).

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