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

EDWIN KALSTO, Complainant


ERD Case No. 199802509, EEOC Case No. 26G981686

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, the and it adopts the findings and conclusion in that decision as its own, except for the following modifications:

Delete paragraphs 4 and 5 of the ALJ's order and insert the following therefor:

4. That the Respondent shall reimburse the Complainant for his reasonable attorney's fees and costs incurred in pursuing this claim before the Department, and defending it on appeal to the Labor and Industry Review Commission. The amount of those attorney's fees and costs to the date of this Order are $22,701.00. The Respondent shall issue a check payable jointly to the Complainant and his attorney, Lisa A. Wiebusch of Mudge, Porter, Lundeen & Seguin, S.C., in the amount of $22,701.00, and shall deliver the check to the office of Ms. Wiebusch.

5. That within 30 days of the expiration of time within which an appeal may be taken herein, the Village of Somerset shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stats., 111.395, 103.005(11) and (12).


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

Dated and mailed October 3, 2000
kalstoe.rsd : 101 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


The complainant, at age 59, was twice denied a job with the respondent as a public works laborer. On both occasions, younger men in their early twenties were offered the job. The complainant filed a complaint with the Equal Rights Division alleging age discrimination. The ALJ concluded that the complainant was an individual within a protected age classification under the Wisconsin Fair Employment Act (WFEA), and that the respondent refused to hire him because of his age in violation of WFEA. The respondent appeals.

In support of its petition for commission review, the respondent argues that the ALJ's findings were not supported by the record, that there is no reliable evidence in the record establishing that age was a determining factor in the respondent's hiring decision, that there is insufficient evidence to support the conclusion that the respondent's proffered reasons were pretextual, and that the ALJ's refusal to allow the respondent to introduce evidence of the complainant's failure to mitigate damages was an abuse of discretion.

The respondent first challenges the ALJ's findings that the respondent asked the job candidates how long they intended to continue to work because of training and licensure costs. These findings are borne out by the record. Dwayne Jacobs recalls that the candidates were asked how long they intended to work for the respondent, and that the point of the question was the respondent's concern over the cost of schooling to obtain licenses. Transcript, page 114. Of course, he also testified that the committee was not necessarily looking for someone who would stay with the respondent a long time. Transcript, page 143. He also testified he himself did not ask the question. Transcript, page 158. Robert Crotty also remembered the question about how long the candidates intended to work being asked, but he thought Dwayne Jacobs asked the question. Transcript, page 203. Mr. Crotty indicated that this question was asked because of the concern that the successful candidate might leave after the village had invested time and money in schooling to qualify the worker for a water and sewer licensure. Transcript, page 203. Moreover, Mr. Crotty testified that, given the complainant's age, "you kind of assume he is not going to be working real long anymore." Transcript, page 215. Finally, former village treasurer and deputy clerk Kristine Vossen testified that she heard Robert Crotty tell another worker that the public works committee wanted to hire a young man whom they could train themselves and who would be there a while. Transcript, page 106.

The remaining challenges to the ALJ's findings made by the respondent in its brief in support of its petition for commission review clearly -- or more clearly -- question the ALJ's ultimate findings of fact. These objections are better addressed together by applying conventional analytic framework applied in age discrimination cases than by discussing each individually.

An employee alleging age discrimination with respect to termination makes a prima facie case by showing: (a) he is forty or older, (b) he was discharged, (c) he was qualified for the job, and (d) either he was replaced by someone not within the class or others not in the class were treated more favorably. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 173 (Ct. App. 1985). In this case, the complainant was not discharged, but rather not hired. In the context of a hiring decision, it has been held that the final criterion is whether the complainant was rejected under circumstances which give rise to an inference of unlawful discrimination. Larson v. DILHR, (Wis. Personnel Commission, January 22, 1989).

The complainant has made a prima facie case. Because the respondent has conceded the complainant was minimally qualified, he meets the first three criteria. With regard to the fourth element, the respondent offered the job to two much younger men, and Dwayne Jacobs testified that he viewed Gunther as a desirable candidate because he was a "down-to-earth kid, young." Transcript, page 156. This gives rise to an inference of unlawful discrimination, even setting aside for a moment Robert Crotty's testimony that given the complainant's age "you kind of assume he is not going to be working real long anymore" (transcript, page 215), and former village treasurer Kristine Vossen's testimony that Robert Crotty said the committee wanted to hire a young man they could train themselves and who would be there a while. Transcript, page 106.

The respondent then bears the burden of articulating a legitimate nondiscriminatory reason for discharging the complainant. Puetz, supra. Technically, if an employer articulates a legitimate nondiscriminatory reason for a discharge, the issue of whether the employee has made a prima facie case becomes moot. Gentilli v. Badger Coaches, ERD case no. 8601411 (LIRC, July 12, 1990), affirmed Gentilli v. LIRC, Dane County Circuit Court (January 15, 1991), U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983).

The requirement of "articulation" is rather minimal: the employer need not initially prove the articulated reason was the actual reason for the discharge. Rather, the employer need only raise a genuine issue of fact as to whether it discriminated against the employee. To do this, though, the employer at least "must clearly set forth, through the introduction of admissible evidence, the reasons for the [employee's] rejection." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 116 (1981).

Dwayne Jacobs testified that the committee perceived Jason Crotty as "selling himself better" than the other candidates. He also testified, somewhat inconsistently, that he viewed the complainant as qualified for the job and as unqualified. To be fair to Mr. Jacobs, though, the commission concludes that Mr. Jacobs was trying to indicate that he viewed Jason as better qualified than the complainant, as the respondent in essence stipulated that anyone who knows which is the business end of a shovel was qualified to be a public works laborer.

The respondent also asserts that Jason Crotty "interviewed better." This, of course, may be an entirely proper reason for preferring one candidate over another. Additionally, in its brief, the respondent acknowledges that being the lead worker Robert Crotty's son helped Jason Crotty as a job candidate.

Further, Jeff Johnson (who participated in the first round of interviews leading to Jason Crotty's hire) testified he could not support the complainant for the job because of the complainant's response to a hypothetical question. Mr. Johnson testified that the complainant was asked what he would do if a coworker walked off the job while the complainant and coworker were operating a jetter, a potentially dangerous high pressure machine for which only the coworker was formally trained. According to Mr. Johnson, he responded that he would continue to work with the jetter. Mr. Johnson thought this response was reckless and arrogant, and would not hire the complainant on that basis alone. Transcript, page 227.

The commission also considered whether the respondent proffered a legitimate nondiscriminatory reason for hiring Robert Gunther instead of the complainant. On this point, the respondent established that Mr. Gunther had worked for the respondent's public works department during the summers for a couple of years. Robert Crotty testified that Gunther had some hands-on training with the public works department equipment, and knew the routine. Transcript, page 199.

In sum, the respondent did articulate legitimate non-discriminatory reasons about why the complainant was not hired: (a) that Mr. Johnson thought -- with respect to the first set of interviews anyway -- that the complainant was too arrogant and a safety hazard, and (b) that Mr. Jacobs and evidently Robert Crotty thought that Jason Crotty and Robert Gunther interviewed better and had more relevant experience.

If a non-discriminatory reason is articulated, the burden of proof reverts to the complainant to show this reason is a pretext. Puetz Motor Sales, supra, 126 Wis. 2d at 172. The complainant argues that the articulated non-discriminatory reasons are a pretext because: (a) Mr. Johnson's assertion that the complainant's response to the hypothetical question disqualified the complainant is suspect; (b) the complainant in fact is more qualified based on his experience; (c) the complainant was specifically asked an age-related question-how long he intended to continue to work-during the interview; and (d) the supportable inference, especially from the testimony of Ms. Vossen and Robert Crotty, that the public works committee was specifically looking for a younger man.

The record discloses some reason to question Mr. Johnson's testimony that he could not recommend the hire of the complainant due to his arrogant response about continuing to operate the dangerous jetter equipment. First, an incorrect answer to one of the hypothetical questions posed at the interview was not otherwise an automatic disqualifier; Johnson admitted that Jason Crotty or Bob Gunther (who were ultimately offered work) had incorrectly answered a question about trespassing on private property. Transcript, page 230. Second, it appears that even supervisor Robert Crotty was overly casual about operating the jetter alone; Johnson admitted he would have "talked to" Robert Crotty had he (Johnson) known Crotty operated the jetter alone. Transcript, pages 231-32. Third, the complainant testified he did not understand the hypothetical question to involve a dangerous machine on which only the walking-off coworker was trained. He thought he was asked only generally what he would do if a coworker walked off the job. The complainant's understanding is borne out by the record, as Mr. Johnson admitted the question asked the complainant might not have included the words "dangerous equipment." Transcript, page 230. In addition, the written notes taken by Robert Crotty and even Mr. Johnson to document the complainant's response expressly refer to "taking a break later" and "finishing the job first," not continuing to operate unsafe machinery alone. Exhibits 5 and 6.

The commission is also not persuaded that the respondent really considered prior work experience in the hiring decision. Again, while it is a matter of judgment, it really does not seem as if Jason Crotty's experience was superior to the complainant's and one could certainly argue it was inferior to Mr. Gunther's (who was offered the job only after Jason Crotty refused it.) Nor does it appear that Mr. Gunther's experience was the real reason for his hire. Indeed, interviewer Mr. Jacobs held the opposite view of Gunther: as a "kid, young" who would walk in to the job setting "ignorant." Transcript, page 156.

Further, there is considerable evidence that the respondent in fact based its decision on age -- that his age was the determinative factor in not hiring the complainant. Robert Crotty testified that given the complainant's age, he did not think he would be working much longer. Mr. Jacobs characterized successful candidate Mr. Gunther as a "young kid" when describing Gunther and explaining why he was hired. In addition, of course, there is Kristine Vossen's testimony that she heard Robert Crotty tell another worker that the public works committee wanted to hire a younger worker whom the respondent could train itself and who would be there a while. (1) That testimony certainly ties into Mr. Jacob's description of Gunther as a "kid, young" who would "walk in and be ignorant."

In its brief, the respondent attempts to distance Robert Crotty -- and his "stray remarks" -- from the decision-making process. However, Robert Crotty was the public works supervisor; he was at the interviews taking notes; he admitted he had input in the selection process (transcript at page 217); and his preference for a younger candidate is evident from the testimony. Voting member or not, Robert Crotty's view of what underlay the committee's decision-making process is quite relevant. Robert Crotty's views on why the complainant was not hired cannot be dismissed-as the respondent suggests-as simply the surmise of a coworker.

The respondent also asserts that the question about how long the candidates intended to stay with the respondent is not necessarily discriminatory, even if the question is correlated with age. That may be true in other situations. However, neither the ALJ nor the complainant insist that the question itself was discriminatory per se. Rather, the complainant asserts the question establishes that experience and interview performance were a pretext in the hiring decision. Further, the complainant points out that Robert Crotty recorded only responses of the younger men-who uniformly answered they desired long term employment- to that question. See exhibit 5. The complainant's response was not noted, and given Robert Crotty's impression he would not be working long, this is hardly surprising. Indeed, Robert Crotty's impression that an older man would not be working long establishes that the question did not simply correlate with age.

Finally, the commission turns to the procedural issue raised by the respondent concerning mitigation of damages. After he was rejected by the respondent for employment, the complainant found work as a school bus driver. The wages earned in that employment will be offset from the complainant's back pay award.

However, after the hearing and after the ALJ issued his preliminary findings of fact, the respondent moved to amend its answer to raise, and presumably litigate, the question of failure to mitigate damages. The respondent's theory is that the complainant could have found a better paying job than that of part-time school bus driver. As authority for its request to make a post-hearing amendment to its answer, the respondent cites Wis. Stat. 802.09(2) which provides:

"802.09(2) Amendments to conform to the evidence. If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice such party in maintaining the action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

The commission cannot accept the respondent's position on this procedural issue. First, mitigation of damages is an affirmative defense which must be proven by the respondent (2) and thus it must normally be pleaded in the answer. (3) This is not a situation where the ALJ is refusing to offset the wages the complainant earned as school bus driver against the award. Rather, the respondent argues, now that it has lost, that it should be allowed to raise a failure to mitigate issue -- that the complainant might have been able to earn more money by finding a better-paying job than as a school bus driver -- which the respondent could have raised at the outset in its answer.

Second, Wis. Stat. 802.09 is one of the rules of procedure that apply to civil cases generally. The administrative rules that specifically apply to administrative hearings in cases before the equal rights division are at Wis. Adm. Code, ch. DWD 218. The rules provide that a complaint may not be amended less than 20 days before hearing unless good cause is shown for the failure to amend before that time. Wis. Adm. Code, 218.14. Although the rule dealing with answers is silent on when amendment is permitted, one may infer a 20-day rule applies to amendments offered to raise affirmative defenses in answers as well. Moreover, discovery is permitted in equal rights cases. See for example Wis. Adm. Code, DWD 218.14. Thus, the respondent had ample opportunity to discover the complainant's efforts to find work before the hearing, if it desired.

Further, a careful reading of Wis. Stat. 802.09(2), assuming the statute even applies in cases before the equal rights division, suggests that the statute is to be used more as a shield than a sword. In other words, the statute is used to permit the decision of issues that were actually tried by mutual consent, but technically not pleaded in advance of the trial. The statute should not be raised to turn a trial (or equal rights hearing) into a mere discovery device to justify amending a pleading to permit a party to raise a new cause of action or affirmative defense it had not pleaded and which it cannot prove without more hearing or trial. On this point, the commission notes that the statute only allows the party opposing the amendment a continuance in the trial to provide proof. Stated another way, the purpose of the statute is to permit pleadings to be amended to conform to the proof admitted at the trial, and permit the issuance of a final remedy following trial based on the record made at the trial. The statute, the commission believes, does not authorize raising entirely new, unlitigated causes of action or affirmative defenses after conclusion of the hearing.

The respondent cites Kaczynski v. WSR Corp. and Whitlock Auto Supply, (LIRC, October 29, 1997) for the proposition that the usual practice in discrimination cases is to conduct a hearing on the question of whether a statutory violation occurred and to issue a generally-worded back pay order if a violation is proven, and then hold a hearing if the parties cannot agree on the amount of the back pay owed. This argument might have more force if, having raised the affirmative defense in its answer to the complaint, the respondent was unprepared to proceed, or unaware that it should proceed, on the issue in reliance upon the asserted usual practice of bifurcating hearings for administrative convenience. But the asserted usual practice of bifurcated hearings does not justify failing to plead the affirmative defense in the answer, or support the contention that the affirmative defense could be first pleaded after the hearing.

Finally, the respondent does not claim it was unaware that remedy issues were going to be decided at the hearing. To the contrary, it asserts in its brief that the complainant should have known that mitigation was at issue for hearing, despite the respondent's failure to raise the affirmative defense in its answer, because it served the complainant with a subpoena about his job search efforts. Indeed, the complainant's job search efforts were raised at the hearing by his attorney, but the ALJ stopped questioning on that issue-without objection from the respondent's attorney-because the respondent had not raised any affirmative defense in its answer with respect to mitigation of damages. Transcript, pages 79-80. Thus, it cannot be said that the respondent was not aware that the issue could have been heard at the hearing, or that the ALJ would not have heard the issue had it been properly pleaded in advance of the hearing.

The ALJ awarded $15,548.37 for the complainant's attorneys fees and costs to the date of the order (April 6, 2000.) This apparently equaled the sum of complainant's attorney's February 25, 2000 petition for attorney fees and costs, plus an additional five hours arising from mediation efforts in March 2000. By letter dated February 25, 2000, the respondent's attorney specifically stated he had no objection to the fees and costs as requested.

In its briefing schedule dated April 28, 2000, the commission requested that the complainant's attorney include a request for additional fees and costs on appeal with her brief, and that the respondent's reply brief include any objections. The complainant's attorney updated her fee petition to request $22,701.00. The respondent did not object in its reply brief, or otherwise, to that amount. Having examined the itemized bill in light of the respondent's failure to object, the commission concludes the fees and costs requested in connection with the petition for review are reasonable. The ALJ's decision was therefore amended to order them paid.

PAMELA I. ANDERSON, (concurring):

I write separately because I believe Johnson was concerned about the safety issue and I believe that the first offer to Crotty's son may also have been based on that family relationship. I am disturbed by the fact that the employer would allow Crotty to be involved at all even as a note taker during his son's interview. I believe having Crotty involved in that interview was discriminatory although not illegal discrimination. While I believe the complainant was minimally qualified for the job I could see where his past experience as an elected official on the public works committee might create problems. In the end, I support a discrimination finding because Crotty testified about how influential he was in the process and how he assumed that at the complainant's age he would not be working for long. That reflects a bias against age that the law was intended to protect against. Thus, I concur in the finding of discrimination.

Pamela I. Anderson, Commissioner


cc: Lisa A. Wiebusch
Carol N. Skinner

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(1)( Back ) The ALJ's ultimate findings in this case, adopted by the commission, do not rest on Ms. Vossen's testimony. Nonetheless, the commission notes that Ms. Vossen's testimony about what Mr. Crotty said is technically not hearsay as the statement of the agent or servant of a party under Wis. Stat. 908.04(1)(b)4. Robert Crotty was the foreman or supervisor of the public works department, he sat in on the interviews conducted by the public works committee, and he admitted to input in the hiring decision. Robert Crotty seems to admit talking to Kristine Vossen (or at least he cannot deny it) about who was hired. He did "not specifically" recall saying the public works committee wanted to hire a younger man. Transcript, page 206.

(2)( Back ) Anderson v. LIRC, 111 Wis. 2d 245, 255 (1983); U.S. Paper Converters v. LIRC, 208 Wis. 2d 523 (Ct. App. 1997).

(3)( Back ) Wis. Adm. Code, DWD 218.12(2)