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

MILTON J. BADER, Complainant

STOKELY USA INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199702046, EEOC Case No. 26G971284

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 April 23, 2001
badermi . rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Milton Bader, commenced employment with the respondent in 1989 at age 63. Bader was employed at the respondent's sauerkraut plant until late 1996, when that plant closed. Based on his seniority, he then posted and was selected for a position at the respondent's distribution center in accordance with the labor agreement between the respondent and Teamsters Local No. 695. Bader was assigned to the position of depalletizer. Bader was discharged after working 13 days of the maximum 15-day training period that the labor agreement allowed an employee to prove he or she was qualified to perform the work.

Bader alleges that he was given little or no training, and put in a position where he would fail, so that he could be terminated because of his age. He also alleges that his supervisor, Terry Grinde, made the comment that the respondent "did not need 73-year-olds working for them." (Bader's date of birth is January 26, 1926. His employment was terminated on December 13, 1996.) Further, Bader alleges that it was discovered that his hearing was impaired when he had his hearing tested by the respondent and that the respondent failed to reasonably accommodate his impairment.

Bader has failed to prove his claims of age and disability discrimination. The evidence shows that except for the hand-run boxer position, the depalletizer is the easiest position to learn, and that entry level employees at the distribution center are typically trained as depalletizers. Bader did begin his training on the more difficult line eight depalletizer, but there is no evidence that he was assigned to this particular depalletizer with the expectation that he would fail. Bader did not complain that he was receiving inadequate training during his 13-days of training, nor did he complain that he had not been adequately trained when notified of the termination of his employment. Normally, the length of time to learn the depalletizer is from three to five days. Further, the respondent's major concern with Bader was that he was not heeding the safety instructions given in connection with operating the depalletizers.

Grinde specifically denies Bader's allegation about his having made a comment about "not needing 73-year-olds working," and the ALJ has set forth in his memorandum opinion persuasive reasons as to why this allegation by Bader is not credible.

Finally, Bader presented no evidence to support his claim of disability discrimination. He did not establish what test allegedly taken by the respondent showed he was hearing impaired, when this test was taken, or the nature of his alleged hearing impairment. Witnesses for the respondent testified that they had no problems in communicating with Bader.

cc: Attorney Robert M. Brill

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uploaded 2001/04/24