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

THOMAS V. WAKELY, Complainant

RHINELANDER PAPER CO, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9201891, EEOC Case No. 260920428

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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 6 of the FINDINGS OF FACT, the number "194" is deleted and the number "160" is substituted therefor.

This modification has been made because it appears that the larger number may have been arrived at due to the existence of several duplicate progress reports on complainant Wakely.

DECISION

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

Dated and mailed: June 25, 1997
wakelth.rmd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant in this case, Thomas Wakely, alleges that the Rhinelander Paper Company discriminated against him on the basis of his age, in violation of the Wisconsin Fair Employment Act, when it terminated his participation in the company's Electrician and Instrument (E & I) Technician Apprenticeship Program.

Wakely commenced employment with the respondent in 1965. In April 1990, he was admitted into the E & I Technician Apprenticeship Program. Wakely was apparently age 50 when he entered the apprenticeship program. The apprenticeship program was a six year program. It consisted of classroom instruction, and on-the-job training by management supervisors and journeymen employes who completed progress reports on the work of the apprentices. The progress reports rated the apprentice in various categories involving attitude and mechanical ability. Possible ratings were poor, fair, good and very good. An apprenticeship committee, which consisted of representatives of the respondent and a number of journeymen, administered the apprenticeship program.

In late 1990 Wakely was advised by the apprenticeship committee that it would like to see better progress reports. Almost all of his progress report ratings had been either fair or poor. Comments on his reports included statements that "most areas need improvement," that there was a need for Wakely "to cooperate and show interest with the person he works with," and that "initiative needs improvement, more of it will improve other areas." In classroom instruction, Wakely had received a grade of "C" for Instrument Mechanics.

In September 1991 the apprenticeship committee placed Wakely on probation with the admonishment that significant improvement was needed in both his class work and on-the-job training if he was to remain in the program. Wakely had received a grade of "C-" in D.C. Electricity and a "D" in Electrician Skill Development in his most recent classroom instruction. His on-the-job progress reports continued to show ratings of fair and poor. Comments on these reports raised questions about his mechanical aptitude and interest in the apprenticeship program. Wakely was advised by the committee that it would meet with him again on December 6 to review his progress.

On December 6, 1991, the apprenticeship committee unanimously decided to terminate Wakely's participation in the apprenticeship program. Documents presented at the hearing show that the committee reached this decision because Wakely had received a grade of incomplete in his last classroom instruction on A. C. Electricity, because the committee believed that he had made no attempt to complete the class and because it was not convinced that his progress reports showed that he was doing acceptable work. Wakely was age 51 when terminated from the apprenticeship program.

The issue presented in this case is whether probable cause exists to believe that the Rhinelander Paper Company terminated Wakely's participation in the E & I Technician Apprenticeship program because of his age. The ALJ concluded that there was not probable cause to believe the company discriminated against Wakely because of his age and dismissed his complaint.

At the time this case arose the term "probable cause" was defined under Wis. Admin. Code § Ind 88.01(8) as follows:

"`Probable cause' means a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination or unfair honesty testing probably has been or is being committed." (1)

Wakely has argued on appeal that the ALJ's decision must be reversed because at the probable cause stage the proper inquiry is only whether he has shown facts and circumstances strong enough in themselves to support a finding of probable cause, that he is not required to rebut the employer's case at the probable cause stage. This argument fails. A determination of probable cause may be made based upon all of the evidence produced at the hearing. Boldt v. LIRC, 173 Wis. 2d 469, 475, 496 N.W.2d 676 (Ct. App. 1992).

Wakely has also argued that the ALJ's decision must be reversed because it was shown that as recently as 1987 the employer had refused to allow persons over the age of 35 to bid for entry into an apprenticeship program and because the ALJ refused to accord this evidence any weight. Wakely testified that twice previously, once in about 1973 and again in 1984, his bid for entry into an apprenticeship program was rejected as entry was limited to those age 35 and under. Wakely argues that this "historical background" is clearly relevant to the issue of age discrimination against him, citing Village of Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977) and Hazelwood School Dist. v. United States, 433 U.S. 299 (1977). While historical background may be relevant, as these cases demonstrate, this historical background, standing alone, fails to suggest reasonable ground for belief that the Rhinelander Paper Company terminated Wakely's participation in the apprenticeship program because of his age. Wakely was not only allowed to bid on entry into the apprenticeship program, the company admitted him into the apprenticeship program in 1990 pursuant to such bid. Wakely, however, has cited a 1991 suggestion made by employer supervisors in preparation for contract negotiations with the local union, which would have restricted apprenticeship bids to those with "sufficient time left before retirement to make specialized training equitable," as further evidence to support his claim of age discrimination. Wakely has failed to show that this suggested proposal for a future collective bargaining agreement ever became anything more than a suggestion for consideration, however, let alone that it was reason for his termination from the apprenticeship program in which he was participating.

Further, while Wakely maintains that before entering the program a journeyman had said that at his age it probably would not pay for him to be appointed to the E & I program, and that after entry into the program he overheard two journeymen who participated in the evaluation of his work comment, in the presence of a supervisor, that he should be out of the program because he would not have sufficient time left in the mill to justify the company's investment, again there was no evidence that these alleged statements reflected the policy of the company, nor does the evidence provide reason to believe such statements, and not poor on-the-job performance and poor course grades, caused Wakely's termination from the apprenticeship program.

Finally, in an effort to establish that he was terminated from the apprenticeship program because of his age, Wakely apparently argues that age discrimination can be proven by showing that the employer believed there was a correlation between age and seniority, citing Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). In Hazen, the question was whether there was a correlation between age and pension status. The 62 year old complainant there was discharged a few weeks short of the 10 year period required under the employer's pension plan. Wakely asserts that vacation is selected based on mill seniority (plant) rather than departmental seniority, which meant that his having more mill seniority than the journeymen training him would have entitled him to select vacation before those journeymen, and that numerous journeymen had told him they would not give him unbiased work evaluations for that reason. There is no evidence which establishes that Wakely had not been fairly graded, however. Further, even assuming for purposes of argument that a correlation exists between age and vacation seniority, Wakely presented no evidence that the employer was motivated to terminate his participation in the apprenticeship program based on vacation seniority. In fact, the complainant's own witness, who was completing a term as president of the local union, testified not only that such vacation seniority would not have come into existence until after Wakely had become a journeyman some 6 years later, but also that there had been no resolution as to what the vacation seniority policy would be when vacation seniority would have become an issue.

The commission agrees with the decision reached by the ALJ. The record in this case simply fails to support a showing that there is probable cause to believe that the Rhinelander Paper Company terminated Wakely's participation in the E & I Technician Apprenticeship program because of his age.

cc: JOHN C. TALIS
ROBERT TORGERSON

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Footnotes:

(1)( Back ) Effective on July 1, 1995, Wis. Admin. Code chapter Ind 88 was repealed and Wis. Admin. Code chapter ILHR 218 was created. The definition of probable cause, which is found at Wis. Admin. Code § ILHR 218.02(8), contains a minor modification. Such modification is not germane to the resolution of this case.