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


J & L OIL INC, Respondent

ERD Case No. 199501699, EEOC Case No. 26G951368

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 as follows:

1.  Delete the seventh numbered paragraph of the ALJ's ORDER and substitute:

" 7. The Respondents shall pay to the Complainant reasonable attorney fees and costs for pursuing this complainant, ERD case no. 199501699. As of October 30, 1996, the Complainant incurred reasonable fees of $5,304.00 and costs of $357.80. On petition for review to the commission, the Complainant incurred an additional $3,120 in reasonable attorney fees. In total, the amount of reasonable fees and costs as of the date of this order, as amended, is $8,781.80. A check for $8,781.80 for the attorney fees and costs should be made out jointly payable: to Margaret K. Rutherford (the Complainant) and Attorney Mary Kennelly (or her firm) and delivered to Attorney Kennelly's law firm."

2.  Delete the eighth numbered paragraph of the ALJ's ORDER and substitute:

"8. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action 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 decision of the administrative as amended, is affirmed.

Dated and mailed June 6, 1997
ruthema . rsd : 101 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner


In the petition for review, the respondents (collectively hereafter, the respondent) asserts that the complainant failed to meet her burden of proving the respondent discriminated against her because of her age, and of establishing that the respondent's proffered reason for her discharge was merely a pretext for discrimination.

As the ALJ explained in his decision, the basic analytical framework in an age discrimination case is well-established. The complaining party must first make a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the respondent must articulate a legitimate nondiscriminatory reason for the action taken. The complainant must then prove that the proffered reason was merely a pretext. The ultimate burden of persuading the fact-finder that age was a determining factor in the decision, rather than a mere factor, remains with the complainant. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 62 FEP Cases 96, 99 (1993) and Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 172-73 (Ct. App. 1985).

An employe makes a prima facie case of age discrimination 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, supra, at 6 Wis. 2d 173.

The complainant here has made a prima facie case. She meets the first three elements without a doubt. With regard to the fourth element, while one of the four workers hired after her was over 40, this does not immunize the employer when the difference in age (63 to 41 in this case) is significant. Wagner v. Rockford Mfg. Associates (LIRC 12/20/82) ; St. Vincent De Paul Society v. MEOC (Dane County Circuit Court 03/30/83). (1)

The burden then shifts to the respondent to articulate a legitimate nondiscriminatory reason for discharging the complainant. Puetz Motor Sales, supra. Technically, if an employer articulates a legitimate nondiscriminatory reason for a discharge, the issue of whether the employe 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 not onerous:  the respondent need not prove the articulated reason was the actual reason for the discharge. Rather, the respondent need only raise a genuine issue of fact as to whether it discriminated against the employe. To do this, though, the employer at least "must clearly set forth, through the introduction of admissible evidence, the reasons for the [employer's] rejection." Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 116 (1981). See also Currie v. DILHR, No. 96-1720, slip op. at 7-10 (Wis. Ct. App. April 24, 1997).

The commission concludes the employer has failed to articulate a legitimate nondiscriminatory reason for the complainant's discharge in this case. First, the termination notice, which vice president Ryan admits is supposed to be completed in every case of termination, was not in the complainant's personnel file. Regardless of the inferences one might draw from this, the fact is that the absence of a termination document is critical here. This is because of the second problem with the employer's case: the individuals present at the discharge meeting, Messrs. Hibbard and Rohrbeck, did not testify.

Both Mr. Hibbard and Mr. Rohrbeck were also discharged by the employer. However, the employer could have subpoenaed either individual, and the record does not disclose any effort was made to do so. Further, it seems unlikely, that Mr. Hibbard would lie and say he had discriminated against the complainant, if in fact he had not done so, simply out of an animus toward an employer who had discharged him.

Vice president Ryan's testimony about what supervisor Hibbard told him about why he fired the complainant is inadmissible hearsay. It may be that what the complainant said to Mr. Hibbard would not be hearsay (either as an admission of a party opponent or possibly a statement not offered for the truth of the matter asserted), if Mr. Hibbard had testified to it. But he did not. Moreover, Mr. Hibbard's statement to Mr. Ryan about why he fired the complainant clearly was offered for the truth of the matter asserted and it fits no hearsay exception. (2)

Nor can the commission conclude this hearsay is corroborated by Ms. Nelson's testimony that she overheard the complainant say she would refuse to work for Mr. Hibbard, or did not want to work for Mr. Hibbard, if Mr. Rohrbeck were discharged. First, "not wanting to work" for someone is entirely different than "refusing to work" for someone. Further, these remarks were made to some unknown person before Mr. Rohrbeck was fired, so the commission would have to speculate from this that the complainant would actually refuse to work for Mr. Hibbard or Ms. Marks if Mr. Rohrbeck were fired. Finally, one might easily expect this type of rhetorical comment from a worker when a manager to whom a worker feels loyalty is discharged under the circumstances of this case.

Nor can the commission find that the employer's representations in the unemployment compensation records articulate a nondiscriminatory reason for the complainant's discharge. About all one may conclude from the unemployment compensation documents is, that at some point someone for the employer told its agent, who then told the unemployment compensation division, that the complainant was fired for insubordination. This written hearsay is no different than vice president Ryan's testimony and if anything is probably more remote and less reliable. Further, the employer did not defend these allegations at the complainant's unemployment compensation hearing.

In short, the only competent evidence in the record about why Mr. Hibbard fired the complainant is the complainant's own testimony that no explanation was given. The commission therefore concludes that the respondent has failed to meet its burden of production under Burdine and Currie with respect to articulating a nondiscriminatory reason for the complainant's discharge.

The next question is whether the respondent's failure to meet its burden of production with respect to articulating a nondiscriminatory reason for the discharge warrants a decision in favor of the complainant. The commission concludes it does. The U.S. Supreme Court has held that, where no question of fact exists as to whether the complainant has stated a prima facie case, a respondent's failure to present any legitimate nondiscriminatory reason for its actions warrants a decision in favor of the complainant as a matter of law. St. Mary's Honor Center, supra, at 62 FEP Cases 100. Similarly, the commission has held that a finding in the complainant's favor will result when the prima facie case of discrimination, raising the presumption that discrimination occurred, is not rebutted by the articulation of a nondiscriminatory reason. Ray v. Ramada Inn Sands West, (LIRC, March 5, 1991); and Jorgensen v. Ferrellgas, Inc. (LIRC, January 10, 1992). See also Currie, supra, slip op. at 9- 10. While there are cases in which the commission has found against the complainant without the respondent having offered any legitimate nondiscriminatory reason for its actions, these are cases in which the evidence presented by the complainant himself placed those reasons into the record. See, for example, Duarte-Vestar v. Goodwill Industries (LIRC, November 9, 1990).

Again, the respondent produced no competent evidence, either from the employer or the complainant, to establish that the complainant was fired for insubordination. In other words, the record contains nothing to rebut the complainant's prima facie case. The commission concludes the ALJ's decision finding of discrimination should be affirmed on this basis.

However, even if the respondent's evidence were sufficient under Burdine and Currie to articulate a legitimate nondiscriminatory reason for the discharge, the commission would reach the same result.- As noted above, in such a case the burden of proving that the articulated reason was merely a pretext would shift back to the complainant. On this issue, the court of appeals has noted:

"A complainant may establish pretext either directly by showing that a discriminatory reason more likely motivated the employer or indirectly by showing the employer's proffered explanation to be unworthy of credence. That a reason is pretextual does not mean it is false; the facts asserted may in fact be true but not the actual reason for the action taken. [Citations omitted.]"

Puetz Motor Sales, supra, at 126 Wis. 2d 175.

On the other hand, merely because an employer's articulated nondiscriminatory reason is pretextual does not necessarily mean the complainant must prevail. Rather, the evidence must persuade the commission that the reason is a pretext for discrimination, although the commission may reach this inference simply on its disbelief of the articulated nondiscriminatory reason and the complainant's prima facie case. Kovalic v. DEC International, 186 Wis. 2d 162, 167-68 (Ct. App., 1994).

Here the evidence of pretext is the testimony of the complainant's grandson, Patrick McQuade, that he heard Mr. Hibbard describe the complainant as unable to perform the tasks of assistant manager because of her age. Of course, Mr. McQuade's mother was fired by the employer, which might call his credibility into question. On the other hand, the employer has known since the very early stages of this case that the complainant alleged that Mr. Hibbard made such a statement, but took no steps to subpoena him so he could deny it. Further, the ALJ who heard Mr. McQuade testify on this point found him credible.

In addition to the lack of rebuttal testimony from Mr. Hibbard, the commission notes that the employer had no criticism of the complainant's performance of her duties. Nor is there competent testimony that she was insubordinate. The most reasonable inference supported by the record, thus, is that after taking over the station manager duties, Mr. Hibbard fired the complainant on the belief that she was too old to be either a manager or a cashier. The record establishes that the next four individuals hired as cashiers at the Portage station were 23 to 45 years younger than the complainant.

The commission notes, the respondent's assertions that it has many workers as old, or older, than the complainant. Indeed, as the respondent pointed out, the complainant was 60 when she was hired. However, that does not mean that Mr. Hibbard did not discharge the applicant on the basis of her age, especially given the comment attributed to him by Patrick McQuade and the fact that he did not hire her initially.

Finally, regarding fees, the complainant's attorney seeks fees for services on appeal to the commission for 20.9 hours of work. The respondent's attorney contends the fee should be limited to 10 hours of work. The commission awards fees at $200 per hour (a rate to which the respondent does not object) for 15.6 hours of work. The commission notes that Ms. Kennelly delegated brief writing duties to her associate due to a busy schedule. As a result, the commission believes the respondent should not be liable for the time Ms. Kennelly spent on appeal, except for her conference with Ms. Rutherford, or for associate Miller's time conferring with Ms. Kennelly on January 28 and familiarizing himself with the file on January 29.

Mary E. Kennelly
Sherwin J. Malkin

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(1)( Back ) See also O'Connor v. Consolidated Coin Caterers, U. S. , 134 L.Ed.2d 433, 70 FEP Cases 486, 489 (1996).

(2)( Back ) The rules of evidence limiting hearsay are generally adhered to at hearings. While an ALJ may consider hearsay to which no objection has been made at hearing to the extent it has probative value, crucial or critical findings should not be based on uncorroborated hearsay. See Wasserman, A Guide to Wisconsin Employment Discrimination Law, sec 5.42 (1995), and cases cited therein. The complainant here did not object to Ryan's hearsay testimony on the point per se (and in fact solicited clarification on cross-examination), although she did elicit testimony to the effect that Ryan had no first-hand knowledge on the issue. Transcript, page 14.


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