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

ROGER L. ZEISE, Complainant

WAUKESHA ENGINE DIV., DRESSER INDUSTRIES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199800004, EEOC Case No. 26G980542

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 20, 1999
zeisero.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, a male whose date of birth is July 12, 1937, was hired by the respondent as a machinist on August 15, 1994. The complainant alleges that he was discharged on April 14, 1997 because of a claimed disability - depression - and his age, that he was discriminated against with respect to his terms and conditions of employment because of his age and that he was also discriminated against because the respondent unreasonably refused to accommodate his disability.

The record supports the ALJ's finding that the complainant failed to establish probable cause to believe that the respondent violated the Fair Employment Act. Daniel Beck, the complainant's supervisor, discharged the complainant for improper use of an inspection gauge which caused it to be damaged, his insubordination displayed on April 9, 1997, when instructed that the manner in which he used the gauge was improper and on the next day in connection with a discussion about another piece of tooling (tool holder), and because he had been involved in prior incidents of disorderly conduct. The complainant has asserted that he had not damaged the gauge, but based upon Beck's observations of the gauge after telling the complainant to stop using it to polish a bore in a part, and the results from the lab tests of the gauge, Beck could have reasonably concluded that the complainant had in fact damaged the gauge. The complainant asserted that "irritability" and "intolerance" of others were symptoms of his depression. As noted by the ALJ at page 4 of his memorandum opinion, "even if the complainant had a disability that caused him to treat his supervisor and coworkers in the manner he did, employers are not required to put up with an employe threatening coworkers, hollering at supervisors and refusing to follow the instructions of their supervisors. There is no reasonable accommodation for such inappropriate matter." Indeed, as for evidence that there was a lack of any reasonable accommodation, the record shows that on April 10, 1997, Beck had merely asked why the complainant wanted to have the tool holder altered, causing him to become very upset and to start hollering and screaming. The ALJ also noted the complainant's behavior at the hearing. The complainant failed to present reasonable grounds to believe that he was discriminated against on the basis of his age. The respondent hired him at age 57. The complainant states that he was told he was too slow on his machine, but he conceded that he had no evidence to show that the speed of his work had anything to do with his age.

cc: James R. Scott

Appealed to Circuit Court. Appeal dismissed January 6, 2000 based on plaintiff's failure to file a brief.

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