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

JOSEPH L BLANKE, Complainant

TAILOR MADE PRODUCTS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199802557,

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, except that it makes the following modification:

In paragraph 11 of the FINDINGS OF FACT, the phrase "decision to demote Mr. Blanke to the position of first shift supervisor." is added to the end of the last sentence which begins "Mr. Breunig was not involved in the".

DECISION

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

Dated and mailed October 29, 1999
blankjo1.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case involves a claim by Joseph Blanke that the respondent violated the Wisconsin Fair Employment Act by terminating his employment on July 7, 1998, because he had filed a wage complaint under sec. 109.03, Wis. Stats., against the respondent on June 23, 1998.

Blanke filed a wage complaint alleging that he was told that as a management- level employe he could take a paid day off with pay whenever needed, and that the respondent refused to pay him for June 13, 1998, a day he had taken off work.

The ALJ found that the individual who terminated Blanke's employment, James Breunig, had acted alone in deciding to dismiss Blanke, and that Breunig had not been aware that Blanke had filed a wage complaint against the respondent, nor did he have any reason to believe that Blanke had or might file such a complaint.

The ALJ concluded that Blanke failed to show by a preponderance of the evidence that his filing of a wage complaint was a factor in the termination of his employment and therefore dismissed his complaint of discrimination. The commission agrees.

Blanke argues on appeal that he stands steadfast in his belief that his filing of a wage complaint with the Equal Rights Division was the prominent factor in the respondent's decision to terminate his employment, and believes the evidence and testimony presented at the hearing supports his claims by a preponderance of the evidence.

In spite of the closeness in time between Blanke's filing of a wage complaint and the termination of his employment, the evidence fails to show that there was a causal connection between Blanke's filing of a wage complaint and the termination of his employment. Blanke's wage complaint was addressed to Wolf Strohwig and Larry Glass, the respondent's president and vice president, respectively. The record fails to support a showing that James Breunig, the individual who terminated Blanke's employment, was aware Blanke had filed a wage complaint against the respondent. The testimony showed that the procedure upon receipt of correspondence of legal matters at the Elroy facility where Blanke and Breunig were employed was not to circulate it, but immediately place it in an inter- company envelope and send it to the comptroller, Michael Retzer, who worked out of the respondent's sister company, Strohwig Tool, in Richfield, Wisconsin. Breunig testified that nobody told him to tell Blanke that he was fired, that he made the decision to fire Blanke on his own, that at the time he fired Blanke he was not aware Blanke had filed a wage claim and that he had no knowledge Blanke was complaining to the Department of Workforce Development.

Blanke argued before the ALJ that it was not realistic that Breunig knew nothing about the wage complaint and that Breunig was not credible, asserting that Larry Glass talked with Breunig numerous times, and that Breunig conferred with Joseph Palmisano, the general manager, and had several "meetings with management." These arguments fail.

Breunig became Blanke's supervisor after Blanke's demotion from the position of plant manager to supervisor by Glass and Palmisano on June 11, 1998. The only evidence in the record regarding Breunig having spoken to Glass and conferred with Palmisano related to Breunig speaking to these individuals early on after Breunig became plant manager (T. 104) because Breunig was not happy with Blanke's work performance. (T. 102). In fact, the testimony shows that Breunig had called Glass several times to state that Blanke was not working out as a supervisor and that Breunig wanted to terminate Blanke's employment but Glass convinced Breunig not to terminate Blanke's employment a couple of times. (T. 66) Glass testified that Breunig's complaints about Blanke were that he would not follow Breunig's orders/directions, and did not have the ability to solve problems with the machines. (T. 67) Glass also testified that he was not contacted at all about Blanke's termination until after the fact. (T. 82) The only evidence of any "meetings" that Breunig had with "management" involved the managers of purchasing, accounting, production, shipping. (T. 101-102)

Blanke also contended that Glass probably had a great deal of input regarding his termination even though Glass denied it, because Glass could state what personal goals he set for himself, what goals were not met, and because Glass stated that he "keeps in contact with supervisors on a daily basis" and had received complaints about him from people. These arguments also fail. Glass' testimony about knowing the goals Blanke set for himself and which goals were not met pertained to the time period when Blanke was the plant manager. (T. 55-56; 82) Similarly, Glass did not testify that he keeps in contact with his supervisors on a daily basis. Glass testified that during the time Blanke was plant manager they talked daily on the phone with him. (T. 56) Finally, the "complaints" Glass referred to receiving from people about Blanke were those from Breunig mentioned above. As previously noted, Glass had been able to convince Breunig not to terminate Blanke at that point. Glass also testified that he was not contacted about Blanke's termination until after the fact.

Blanke further questioned whether Breunig had complete decision-making authority over his termination, asserting that Breunig "checked with Human Resources to confirm whether there would be any `liability' involved in a termination." Breunig testified, however, that he typically checked with human resources when terminating someone as far as the company's liability regarding unemployment. (T. 105) Blanke presented no evidence which indicated that Breunig had received any direction from anyone in human resources to terminate his employment.

Blanke suggested that it was suspicious that the respondent had not called Palmisano as a witness in its behalf, asserting that Palmisano was the one person with whom he had the most contact and interaction, and that Palmisano had taken part in his hiring and evaluation. This argument also fails. Palmisano's evaluation of Blanke had taken place on December 22, 1997, a mere six weeks after Blanke's hire. Blanke may have "had the most contact and interaction" with Palmisano, but that was only because Palmisano was his immediate supervisor from the date of his hire in November 1997 until June 11, 1998. After June 11, 1998, Breunig was Blanke's supervisor. Moreover, to the extent that what occurred at Blanke's hiring had any relevance to his claim that his employment was terminated in retaliation for filing a wage claim, it would seem that it would have more likely been Blanke who would have called Palmisano as a witness. It was Palmisano who Blanke contends told him when hired, out of the presence of Glass, that he could take a day off with pay when needed (T. 119), and it was Palmisano who denied him pay for a day that he took off work (T. 12), causing him to file a wage complaint.

Blanke further argued that just prior to his termination he had been "assured that he was doing a good job because he was asked to help the Company correct problems on the second shift." There was testimony that around June 23, 1998, Breunig believed that a move to second shift might be a spot where Blanke's skills could be used. (T. 29; 97) However, to suggest that this was an "assurance that he was doing a good job" ignores the record evidence regarding the difficulty Breunig had with Blanke over production priorities and getting Blanke to follow his instructions in this regard, including on July 7, 1998, the date Breunig terminated Blanke's employment. (T. 94-97) There was no evidence that Blanke had been assured that he was doing a good job.

The ALJ found both Glass and Breunig to be credible witnesses, as evidenced by his findings of fact. The commission finds no reason to disagree with the ALJ's assessment of their credibility.

Blanke also argued that he did not receive any type of progressive discipline to inform him that his job was in danger. This argument, too, is unavailing. First, Blanke is demoted from the position of plant manager by Glass and Palmisano because he was not performing the job satisfactorily. Then, Breunig has continuous difficulty with Blanke not following his instructions. The following testimony by Breunig pretty much sums up the situation that Breunig faced:

"I had worked with Joe (Blanke) since November (when Breunig was production manager and Blanke was plant manager). Our two policies were different. I was put into a new position. (plant manager) I had to make a decision quickly. It is like a coach being hired on a professional franchise. They don't always keep the assistant coaches around. Their policy may be different. Ours clashed and I had to make a decision. Obviously, Joe (Blanke) would reflect on me, you know, me personally. Joe (Blanke) is a reflection of me. I felt it was negative."

(T. 106-107)(Emphasis in bold text added)

Blanke further contended that his employment was terminated for not scheduling operators, an act that he was not even responsible for. However, the record shows that decisions made by Blanke affected the scheduling of operators. If Blanke decided that he was not going to start a machine, he was in effect scheduling operators. (T. 106) If a change was not implemented by Blanke in a timely manner, that also affected the scheduling of operators. (Id.)

For all of the above-stated reasons, the commission affirms the dismissal of Blanke's complaint.

cc: Linda L. Hale
Michael Retzer

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