P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RICHARD J EBNER, Complainant

DURA TECH, Respondent

ERD Case No. CR200504645, EEOC Case No. 26G200600372C

An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:


1. The complainant, Richard Ebner, (hereinafter "complainant") was born on August, 27, 1951.

2. The respondent, Dura Tech, (hereinafter "respondent") is a business that prints labels on plastic and other materials. The respondent sells its products to manufacturers who incorporate the respondent's labels into their own products. The respondent's principal place of business is located in La Crosse, WI.

3. The complainant was hired by the respondent in 1992, at the age of 41, as a regional sales manager. The complainant resided in La Crosse but was assigned the Illinois territory. He would habitually travel to Chicago from La Crosse on Tuesday afternoon, and return Friday afternoon. The complainant successfully built up the Illinois territory and it was profitable under his management.

4. In approximately 1996 the complainant was diagnosed with Crohn's disease.

5. The complainant's medical condition caused him discomfort and sometimes required additional bathroom breaks. However, it did not affect his productivity and required no accommodation. The respondent was aware that the complainant had Crohn's disease and was generally supportive of the complainant's struggle to deal with the symptoms.

6. 6. Beginning in 2000 the complainant was given Remicade infusions for treatment of his Crohn's disease. The cost of the Remicade infusions totaled about $11,000 per year when he began them in 2000 and became more costly each year. By 2005 the Remicade infusions cost about $30,000 a year.

7. 8. The respondent was self-insured for employee health insurance from approximately 1991 until some time in 2000 or 2001. While the respondent was self-insured it received information about employee claims and was specifically informed about the higher medical claims submitted by its employees. The respondent did not receive any information to indicate that the complainant had high medical costs.

9. 10. In 2000 or 2001 the respondent began using an insurance company for employee health insurance. Thereafter, the respondent no longer had access to information about individual claims.

11. 9. During most of the complainant's employment the respondent had two other regional sales managers, Jim Keim, who worked a territory encompassing Wisconsin and Iowa, and John Skau, who worked a territory including Minnesota, North Dakota and South Dakota. Keim was born in 1943 and Skau was born in 1950. Both were older than the complainant.

10. The complainant answered to the vice president of sales. There were several different vice presidents of sales during the complainant's tenure, most recently James McIntyre, who became vice president of sales in March of 2004. McIntyre was born in 1948 and was older than the complainant.

11. When McIntyre was made vice president of sales his mandate was to "grow sales," and the respondent expected him to make changes. McIntyre began immediately working on a plan to reorganize the respondent's sales structure. Among other changes, McIntyre decided that it was not productive for the complainant to drive from La Crosse to Chicago every week and that it would be more efficient and would provide for better customer service to have someone living in Chicago. He decided to use the complainant in a different way, by having him work out of La Crosse, where he resided, and hiring someone else to handle Chicago customers.

12. McIntyre began discussing the matter with the complainant in the fall of 2004. The complainant made it clear that he did not want to leave the Illinois territory, but never indicated that he would be willing to consider relocating to Chicago in order to keep the position. McIntyre did not offer the complainant the opportunity to keep the territory by moving to Chicago because he assumed the complainant would not want to do so.

13. In January of 2005 the complainant was transferred to a group consisting of himself, Jim Keim and John Skau. Skau worked in the Minneapolis area and had three major accounts and about 50 small accounts. McIntyre decided that Skau should concentrate on his three major accounts in order to see if there could be more growth out of those accounts, and that the 50 smaller accounts would be assigned to the complainant. The complainant split the first two months of 2005 between the new territory and the Illinois territory before shifting entirely to the Minnesota territory.

14. The respondent hired Nick Kavvadias to handle the Illinois territory. Kavvadias lived in Chicago and had 18 years of sales experience, although not in labels and graphics. He was born in 1956, making him about five years younger than the complainant.

15. In addition, McIntyre hired two outside salespeople, Mike Houser and Tim Croker, to work as sales representatives. Houser lived in Ohio and served that area, while Croker lived in Connecticut and served the northeast. Houser was born in 1959 and Croker was born in 1945.

16. As part of the reorganization, McIntyre assigned a customer service representative named Tara Hagen-Witt (1)  to exclusively service its General Electric (GE) account as an account executive. GE was based in Milwaukee, and Hagen-Witt offered to move there. The respondent did not require Hagen-Witt to live in Milwaukee, but gave her a $1,000 monthly stipend so that she could try doing so temporarily to see if she liked it.

17. The complainant's age was not a factor in the respondent's decision to transfer him from the Illinois territory.

18. The complainant's medical condition was not a factor in the respondent's decision to transfer him from the Illinois territory.

19. The complainant did well in the Minneapolis territory. Sales in that area increased by approximately 18% between February and October of 2005.

20. After Nick Kavvadias became the regional sales manager for Illinois, one major account, Molex, dropped its account with the respondent. Molex's decision was related to design issues involving that company's own product and was not due to Kavvadias' sales performance. A second major account, Life Fitness, dropped from being a million dollar account to a $500,000 account. Life Fitness chose to take some of its business elsewhere because it was dissatisfied with the respondent's pricing.

21. The respondent's budget for 2005 was based in part on a sizable amount of revenue coming from a company in Phoenix, which did not materialize. In addition, the respondent sustained approximately a two million dollar loss in sales. By the summer of 2005 the respondent concluded that its bottom line was deteriorating and that it did not have sufficient sales to carry the structure it had and would have to let people go.

22. The company president at the time was Peter Johnson. Johnson was born in 1966. He began working for the respondent in 1988 and became president of the company in October of 2005. Johnson had never previously experienced a loss in profitability during his tenure with the respondent and felt he had to turn the company around.

23. Johnson and McIntyre put the name of every person in the company up on a chart and made a determination as to whether the respondent could work without each person. The respondent decided to lay off Tim Croker and Mike Houser because sales in their areas were not materializing. Croker and Houser were born in 1945 and 1959 respectively. The respondent also decided to lay off Cindy Leible, because she was one of two inside salespeople, and the respondent felt it could consolidate those into one position. Leible was born in 1957.

24. After deciding to let those individuals go, the respondent concluded that it still had to find other savings. It decided that the move which would have the least impact on its customers was to give John Skau his 50 small accounts back and lay off the complainant.

25. The complainant was discharged on October 31, 2005.

26. The respondent did not lay off Kavvadias because McIntyre was still convinced that the respondent needed a sales representative who resided in Chicago. Moreover, while Kavvadias' sales performance was not strong, the respondent believed it would get much more productivity out of him over time.

27. Kavvadias' sales performance did not improve as anticipated and he voluntarily resigned in July of 2006.

28. The complainant's age was not a factor in the respondent's decision to terminate his employment.

29. 29. The complainant's medical condition was not a factor in the respondent's decision to terminate his employment.

Based on the FINDINGS OF FACT made above the commission makes the following:


1. The respondent did not discriminate against the complainant in violation of the Wisconsin Fair Employment Act (hereinafter "WFEA").

Based upon the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the commission issues the following:


The complaint is hereby dismissed with prejudice.

Dated and mailed April 23, 2009
ebnerri . rrr : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The complainant alleged that he was subjected to different terms and conditions of employment based upon a disability, Crohn's disease, and his age, date of birth 1951, and that he was subsequently discharged based upon his age and disability. The administrative law judge dismissed the disability complaint and, further, found that the complainant was not subjected to different terms and conditions of employment based upon his age. However, the administrative law judge concluded that the complainant established he was discharged based upon age. The respondent has filed a petition for commission review of that finding. While in his responsive brief to the commission the complainant continues to raise the original transfer as part and parcel of a plan to discharge him based upon his age, and similarly attempts to resurrect his allegations that he was discriminated against based upon disability, the complainant has not petitioned for review of those issues on which he did not prevail. Although the filing of a petition for review by either party vests the commission with jurisdiction to review the entire decision, the commission will generally not exercise jurisdiction over issues that are neither expressly nor implicitly raised in a petition for review. Nunn v. Dollar General (LIRC, March 14, 2008). The commission has adopted the administrative law judge's conclusions that the complainant's transfer from the Illinois territory in January of 2005 was not based upon his age or disability and that his discharge was not due to a disability, and has focused exclusively on whether age was a factor in the complainant's discharge from his position as sales manager assigned to the Minnesota territory in October of 2005.

The complainant's argument on this point is, essentially, that he should have been able to take Nick Kavvadias' job because he had done the job in the past and was a stronger performer than Kavvadias, but that the respondent gave preference to Kavvadias because of his age. The commission has considered these arguments, but finds them unpersuasive.

First, it must be noted that Mr. Kavvadias was also in the protected age group, and the five-year age disparity between him and the complainant is not so significant as to raise an inference of discrimination. While, as the complainant has pointed out, there is no absolute rule that a complainant cannot prevail on an age discrimination claim where the age difference between the complainant and his comparator is only five years, a five-year age difference is not so significant that, standing on its own, it gives rise to an inference of age discrimination. (2)   See Becker v. Reisinger Heating Inc. (LIRC, July 23, 2007). Absent any evidence to suggest that the respondent considered the five-year age disparity to be significant, the mere fact that Kavvadias may have been treated more favorably, had this been shown, would not warrant a conclusion that age discrimination was a factor.

Second, the respondent provided legitimate, non-discriminatory reasons for its actions. The respondent contended that it discharged the complainant because it needed to cut back its sales force for financial reasons and felt that the complainant's position would be among the easiest to do without because he and John Skau covered overlapping territories that Skau had previously handled on his own. The respondent's testimony on this point went unrebutted, and the fact that it laid off three other employees -- two of whom were younger than the complainant, albeit still within the protected age group -- supports its contention that it made a concerted effort to cut back its sales force. The complainant was not replaced by a younger employee. Rather, his duties were absorbed by Skau, who was a year older than the complainant. The respondent also retained Jim Keim, who was eight years older than the complainant, because he had made many personal contacts in his territory that would make him hard to replace.

The respondent testified that it never considered having the complainant bump Kavvadias because it still wanted someone in that position who lived in Chicago, and that the reasons it originally removed the complainant from that territory still applied. While the complainant points out that Kavvadias was not meeting his sales goals and that he was a stronger performer, the respondent never contended that it made the decision because of job performance and agreed that the complainant's sales were good. With regard to Kavvadias' performance, the respondent explained that it lost some business under Kavvadias' watch that would have been lost whether or not Kavvadias was assigned to the territory, and that it still believed at the time it made the discharge decision that Kavvadias had the potential to perform well. The respondent testified, without rebuttal, that it takes 12 to 18 months to close a big deal in the respondent's industry and that Kavvadias had not been there long enough to evaluate. Although the respondent's faith in Kavvadias' abilities turned out to be misplaced, there is no evidence to suggest that it did not genuinely expect him to succeed in the territory at the time of the complainant's discharge. Indeed, it is hard to imagine that the respondent would have kept him on if it thought otherwise.

With the benefit of hindsight, it is easy to conclude that it would have been more prudent for the respondent to have moved the complainant back to the Illinois territory, where he had been successful, and to have discharged Kavvadias instead. However, the decision-maker in a discrimination case may not substitute its business judgment for that of the employer, and the mere fact that the respondent made a decision that may have been ill-advised is not evidence of pretext on its part. "The focus of a pretext inquiry is whether the employer's stated reason was honest, not whether it was accurate, wise, or well-considered. We do not sit as a superpersonnel department that reexamines an entity's business decision and reviews the propriety of the decision. Our only concern is whether the legitimate reason provided by the employer is in fact the true one." Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000)(citations omitted). To disregard the respondent's unrebutted explanation that it made its decision independent of an assessment of the complainant's sales performance, that it wanted someone who resided in Chicago to work the Illinois territory, and that it believed Kavvadias could succeed there given time, would require the commission to engage in impermissible second-guessing of the respondent's business decisions.

In addition to the fact that Kavvadias was similar in age to the complainant, and that the respondent had a credible, non-discriminatory explanation for the discharge, the commission can find no other evidence of pretext in this case. The respondent's witnesses testified that the discharge decision was made without consideration of the complainant's age, and the commission sees no reason to conclude otherwise. The record is devoid of any evidence to suggest that the decision-makers were motivated to get rid of older workers. To the contrary, both Johnson and McIntyre agreed that the complainant was performing well, and there is no reason to suspect that either of them thought he was too old to do the job. In fact, of the three sales managers who were retained, two were older than the complainant.

Johnson, the company president, testified that he regarded the complainant as a friend, and that the decision to discharge him was the most challenging one he had to make. Johnson explained, however, that he was charged with turning the organization around, and felt he needed to let some people go in order to prevent putting 200 people out on the street. For the reasons already discussed above, Johnson and McIntyre decided that the complainant's position was the most expendable. While this decision was unquestionably a very difficult one for the complainant to understand and accept, particularly once he learned about Kavvadias' less-than-stellar sales performance, the commission nonetheless sees no reason to believe it had anything to do with the complainant's age.

Finally, the commission addresses the complainant's argument that Tara Hagen-Witt is a second appropriate comparator who received preferential treatment based upon her age. The commission does not believe that Hagen-Witt's situation is relevant to the complainant's discharge. The complainant was a sales manager, whereas Hagen-Witt was an account manager who worked exclusively with GE servicing its existing account. To the extent the complainant may be suggesting that the respondent should have discharged Ms. Hagen-Witt and transferred the complainant into her job, this suggestion is without merit. The complainant had no experience as an account manager, and there is absolutely no reason to believe that, had he been younger, the respondent would have decided to keep the complainant employed rather than Ms. Hagen-Witt.

NOTE: The commission conferred with the administrative law judge prior to reversing. The administrative law judge had no demeanor impressions to impart and indicated that his decision was not based upon an assessment of witness credibility or demeanor, but was based solely upon the rationale laid out in his memorandum opinion.

Attorney Dawn Marie Harris
Attorney Amy Schmidt Jones

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(1)( Back ) Hagen-Witt's date of birth is not in the record, although the parties speculate that she was in her early to late 40's during the time period at issue.

(2)( Back ) The complainant himself implicitly acknowledges that a five-year age difference is not substantial. In his brief to the commission the complainant asserts that he and Keim are "similar in age," notwithstanding the fact that the complainant and Keim are eight years apart, a greater age difference than that which existed between the complainant and Kavvadias. See, Complainant's Brief in Opposition to Respondent's Appeal, p. 16, par. 52. The complainant also describes employees Reiter and Johnson, who are five and a half years apart, as being "very close in age." Complainant's Brief, p. 16, par. 53.


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