ROGER A. KURTZWEIL, Complainant
GPI CORPORATION, Respondent
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, reviewed the evidence submitted to the ALJ, and consulted with the ALJ concerning his personal impressions of the credibility of the witnesses who testified before him. Based on its review, the commission makes the following:
1. Respondent, GPI Corporation, is a manufacturing business located in Schofield, Wisconsin which custom fabricates fiberglass and resin storage vessels for chemicals and corrosive liquids.
2. GPI is owned and operated by the Zinser family. George L. Zinser is President of GPI. His wife, Mary Ann Zinser, is the secretary for the company.
3. Complainant, Roger A. Kurtzweil, was born on November 2, 1934. Kurtzweil has over 43 years' experience as a draftsman. His education included taking drafting courses in high school, architectural drafting courses in vocational school, and correspondence courses in drafting and machine design. During his career he worked in a number of positions at companies involved in fabrication and assembly of machinery and power transmission equipment.
4. Most recently prior to his employment with GPI, Kurtzweil worked for companies in New Jersey and Pennsylvania. In 1987, Kurtzweil decided to return to Wausau. He responded to a newspaper advertisement for an opening with GPI, was called in for an interview, and was hired the next day as a part-time contractor. Kurtzweil became a full-time employee there in February, 1989.
5. As a draftsman for GPI, Kurtzweil prepared technical drawings of structures requested by customers, to be used by GPI's fabricators in the building of the requested structure.
6. At the beginning of his employment with GPI, Kurtzweil worked in the shop as a finisher and doing drafting. In this position, he transferred sketches by customers into a picture, or increased the information on the sketch, so that they could be used by GPI's fabricators.
7. Initially, Kurtzweil worked with a GPI employee named Reiner, who would obtain information about the desired product from the customers and provide that information to Kurtzweil. After he finished a drawing, Kurtzweil would give it to George Zinser for review and his signature. Then he would run a blueprint of the drawing.
8. In 1989, George and Mary Ann Zinser's son, Brian Zinser, began working for GPI. He became the Sales and Engineering Manager for GPI.
9. When Brian Zinser took over, he was the one who did the quotations for customers based on the information they submitted, information that Kurtzweil did not have access to. Kurtzweil would become aware of it by being told by Brian what he had to draw and by being given photocopies of the original information retained by Zinser.
10. After Brian Zinser took over, Kurtzweil gave finished drawings to him.
11. After Kurtzweil made a copy of a finished drawing, with Brian's approval, it would be sent off to the customer for their review and potential changes. Prior to the drawing being filed, it was approved for construction by George or Brian Zinser or both of them. The approved drawing would be given to another employee who would determine the necessary materials to purchase, and then to the shop foreman.
12. As early as 1987, Kurtzweil began to familiarize himself with Computer Aided Drawing (CAD) technology. Using CAD, a draftsman can "draw" one of a group of items, such as rungs on a ladder, and the program automatically arrays the rest of the group. This contrasts to drawing by hand, in which a draftsman draws each rung individually.
13. Kurtzweil took a course in CAD at North Central Technical College in 1987, and he took other courses in CAD. He also purchased two CAD programs for use at home.
14. From 1996 onward, Kurtzweil talked to George Zinser about getting drawings done using Computer Aided Drawing (CAD) technology. At that point, a number of customers were starting to ask for CAD drawings. Kurtzweil was often asked his opinion about computers GPI might buy to run CAD programs. Kurtzweil assisted George and Brian Zinser in deciding what computer system and CAD program to purchase for GPI.
15. In or around February 1999, GPI purchased a number of computers and a CAD system and began producing drawings using CAD.
16. In 1999 and 2000, it was taking Kurtzweil longer to do drawings than it had in the past. One reason for this was that Kurtzweil found the particular CAD system GPI bought to be cumbersome in the beginning, and he was not proficient at it at first. Another reason that Kurtzweil was taking more time to complete drawings was that Brian Zinser would not initially provide him with enough of the information from the customer about the desired specifications, with the result that additional information would have to be obtained and added in to the project while Kurtzweil was trying to prepare the drawing. These interruptions of the process to provide more information that had not been provided initially added to the time taken by Kurtzweil to complete drawings. In addition, the drawings GPI produced had become more complex over time, in part at the request of customers, who were expecting more detail with the advent of CAD systems.
17. GPI maintained personnel files on its employees, including Kurtzweil. While it was taking Kurtzweil longer to do drawings than it had in the past, no negative comments about Kurtzweil's work performance, or written warnings to Kurtzweil, were ever placed in his personnel file.
18. George Zinser did not complain verbally to Kurtzweil about the length of time Kurtzweil took to prepare drawings. He acknowledged that the matter of the length of time Kurtzweil took to do drawings was more of an issue for his son Brian than it was for him. While George Zinser asserted that he did complain to Kurtzweil that he was unhappy with certain aspects of his work, he acknowledged that he did not recall if he did so very bluntly. He sent Kurtzweil a Christmas Card in 1999 thanking him for doing a "great job."
19. During 1999, Kurtzweil was working ten hours a day, on the instructions of Bran Zinser. At the end of 1999, Kurtzweil told the Zinsers he was getting tired of putting in so many extra hours. Brian suggested the possibility of hiring another drafting person. Kurtzweil was in favor of this suggestion because he did not want to continue working the long hours he had been.
20. Brian Zinser put out advertisements for another draftsman and subsequently made the decision to hire Mark Gabriel, on a part-time basis, to assist in drafting. Gabriel started working for GPI on April 3, 2000.
21. With the hiring of another draftsperson, Brian told Kurtzweil that his work area would be given to Gabriel and that Kurtzweil could work from home because he had all the computer and fax equipment he needed to be in communication with GPI's office.
22. From April 3 to May 10, 2000 Kurtzweil worked at home, with the exception of the second week of April when Gabriel went on vacation and Kurtzweil went into GPI to work on his computer.
23. At the end of the second week of April, 2000, Kurtzweil gathered his personal things to take home to use. On April 26, 2000, he submitted his last drawing via e-mail and had no further work to do.
24. Thereafter, Kurtzweil called Brian Zinser every day around 8:00-8:30 a.m. asking for work, but Zinser told him he had nothing for him to do.
25. Approximately a week later Kurtzweil spoke to Mary Ann Zinser, who informed him that Gabriel was working full time and doing detail work. She told Kurtzweil to file for unemployment.
26. On May 10, 2000, Kurtzweil was told that his employment with GPI was ended.
27. The decision to terminate Kurtzweil's employment was made primarily, if not exclusively, by Brian Zinser.
28. Kurtzweil's age was a determining factor in the decision to terminate his employment with GPI.
Based on the Findings of Fact made above, the commission now makes the following:
1. GPI Corporation is an employer within the meaning of the Wisconsin Fair Employment Act.
2. Roger A. Kurtzweil is an employee within the meaning of the Wisconsin Fair Employment Act.
3. GPI Corporation terminated Roger A. Kurtzweil from employment because of his age, within the meaning of Wis. Stat. § 111.322(1), in violation of Wis. Stat. § 111.321.
Based on the Findings of Fact and Conclusions of Law made above, the commission makes the following:
1. That the respondent shall cease and desist from discriminating against the complainant because of age.
2. That the respondent shall offer the complainant reinstatement to a position substantially equivalent to the position he held prior to his discharge, with all seniority and benefits, including sick leave and vacation credits, to which he would have been entitled had he been employed continuously from the date of his discharge until the date of his reinstatement. This offer shall be tendered by the respondent or an authorized agent and shall allow the complainant a reasonable time to respond.
3. That the respondent shall make the complainant whole for losses in pay which the complainant suffered by reason of its unlawful conduct by paying the complainant the sum he would have earned as an employee from the date of his discharge until such time as the complainant resumes employment with the respondent or would resume such employment but for his refusal of a valid offer of a substantially equivalent position. The back pay for this period shall be computed on a calendar quarterly basis with an offset for any interim earnings during each calendar quarter. Any unemployment compensation or welfare benefits received by the complainant during the above period shall not reduce the amount of back pay otherwise allowable, but shall be withheld by the respondent and paid to the Unemployment Compensation Reserve Fund or the applicable welfare agency. Additionally, the amount payable to the complainant after all statutory set-offs have been deducted shall be increased by interest at the rate of 12 percent simple. For each calendar quarter, interest on the net amount of back pay due (i.e., the amount of back pay due after set-off) shall be computed from the last day of each such calendar quarter to the day of payment. Pending any and all appeals from this Order, the total back pay will be the total of all such amounts.
4. Respondent shall pay the complainant's reasonable attorney's fees and costs associated with this matter, in a check made payable jointly to the complainant and to Attorney James B. Connell and delivered to Mr. Connell. (1)
5. Within 30 days of the date on which this order becomes final, either by virtue of expiration of time within which an appeal may be taken herein or by final denial of or refusal to hear any such appeal, respondent 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).
Dated and mailed August 27, 2004
kurtzro . rrr : 110 :
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
Brian Zinser's significant role in the challenged decision - As is reflected in Finding of Fact No. 27 above, the commission has found that the decision to terminate Kurtzweil's employment was made primarily if not exclusively by Brian Zinser.
It was clear that, as a general matter, Brian Zinser had effectively become more responsible for the overall management and direction of the respondent in recent years. George Zinser acknowledged as much, explaining that in the past few years he had been turning management of GPI over to his sons, noting that Brian was more up-to-date on the latest specs and tooling than he was. George Zinser's indication that Brian still consulted with him on things to get his opinion on whether he thought it would be good for the company, suggests that Brian was in the lead. How each man viewed their roles in management of the company may also be seen in the way they spoke about it. In testifying about the same events occurring at GPI, Brian spoke in the first person singular ("I put some advertisements out and hired Mr. Gabriel; "I terminated Kurtzweil"), while George Zinser spoke in the first person plural ("We hired Mr. Gabriel because he seemed to have the experience and knowledge we were looking for"; "We kept Mr. Gabriel on full-time and made Mr. Kurtzweil the stand-by").
Most important, of course, was the fact that Brian Zinser directly and unmistakably testified that he made the decision to terminate Kurtzweil, and testified about what his reasons for making that decision were. In contrast to this, George Zinser essentially disclaimed any decision to terminate Kurtzweil at all, stating that they did not decide that they did not want Kurtzweil to work for them any more, they just did not have work for him to do.
Not only was the commission thus persuaded that it was Brian Zinser who made the decision to discharge Kurtzweil, the commission considered it doubtful whether George Zinser was even involved in communicating that decision to Kurtzweil. George testified that on May 10, 2000, he told Kurtzweil to collect unemployment compensation until they had more work for him. However, Kurtzweil testified that it was not George Zinser, but his wife Mary Ann, who told him this. The commission believes that on this point of disputed fact, Kurtzweil's testimony is more credible.
Brian Zinser's principal role in the decision to discharge Kurtzweil is particularly
significant because of the evidence, discussed below, that the age difference between
him and Kurtzweil affected their relationship.
Asserted reasons for discharge unworthy of credence -- One of the overriding considerations leading the commission to its decision in this case, is the fact that there were so many obviously questionable things about the respondent's asserted non-discriminatory reasons for discharging Kurtzweil.
Foremost among these, was the extremely dubious nature of the "logs" which were relied on by the respondent to support its claim that Kurtzweil was a poor performer and that it was unhappy with his performance.
In his Memorandum Opinion, the ALJ indicated that he believed that the "log" supposedly created by Brian Zinser was "awfully self-serving [and] may very well have been fabricated." In discussions with the commission for the purpose of allowing the commission to have the benefit of his impressions as to the credibility of the witnesses, the ALJ confirmed that impression. The commission agrees.
Brian Zinser's testimony about this "log" was not credible. He testified inconsistently with respect to it, both that he made the entries contemporaneously with the events described in the entries, and that some entries were made at later dates - which of course means that they were not made "contemporaneously." He acknowledged an admission in a pre-hearing deposition, that he had actually made the entry dated "1/13 - 1/14," in March 2000. Indeed, he acknowledged that he "may" have actually started the entire "log" only in March, 2000. He also acknowledged that he "may have" continued making entries in his "log" even after Kurtzweil had left, something which would have been pointless for any reason other than being in anticipation of its use in litigation. His explanation that he would have done so to "vent frustration," is so inexplicable as to be unbelievable.
The commission was also doubtful about the "log" supposedly created by George Zinser. One factor leading the commission to have doubts about this "log," although by no means the only factor, was the matter of five separate notations he made therein, with dates shown as "Nov 94," "Nov 94," "Dec 94," "Dec 14 94," and "Dec 21 94." In these notations, Zinser purported to describe specific discussions and events involving Kurtzweil. However, Zinser was forced to concede that these entries could not in fact have been accurate, because Kurtzweil was on sick leave from November 12, 1994 through January 1, 1995. The notations were clearly not written at the time reflected by the dates attached to them; just as clearly, they could not have even reflected events that occurred at the time reflected by the dates attached to them.
George Zinser initially testified that his log did not contain portions that were written at the same time but had different dates on them. However, he then testified that he sometimes carried notes around with him for months at a time, before sitting down and transcribing the contents of those notes into his log. Such entries are precisely what he initially disclaimed, i.e., entries written at the same time but with different dates on them.
The commission considers it remarkable that, as closely as they appear to have worked in their family business, and as deeply as they claim they were concerned about the supposed performance problems of Kurtzweil, George Zinser and Brian Zinser somehow never mentioned to one another that they were keeping "logs" in which they were recording negative comments about Kurtzweil. Certainly, this could not have been because it was so routine that it never occurred to them to. On the contrary, it appears that keeping these kinds of logs was anything but routine. George Zinser testified that he had never kept such a log on any other employee.
In addition to the matters discussed above, the commission has taken into account the uncontradicted testimony of the former secretary/receptionist for GPI, that while working there she had been asked on a number of occasions, by both George and Brian Zinser, to backdate documents, including a letter connected to a pending lawsuit and quotes to customers which had not gone out on time.
The factors discussed above are all consistent with the opinion provided by the forensic document examiner who testified on behalf of Kurtzweil, that the entries in the logs were probably not all prepared contemporaneously with the dates associated with them.
The very doubtful nature of these "logs" calls into question the veracity of the complaints about Kurtzweil's performance which the logs were offered as evidence of. This is significant, because
"[t]he factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination . . ."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993), quoted in Rodriguez v. Flash, Inc. (LIRC, January 28, 2003). The commission simply did not believe that the "logs" were what they purported to be, and it suspected mendacity in their creation.
In addition to the questionable nature of the "logs," other factors disinclined the commission to believe the respondent's asserted non-discriminatory reasons for discharging Kurtzweil.
One of these factors was the complete absence of anything negative about him in his personnel file. George Zinser confirmed that GPI kept a personnel file on each of its employees, including Kurtzweil. He acknowledged that there was nothing in Kurtzweil's file that contained any negative comments about his work performance and that there had never been any written warnings issued to him. He acknowledged that GPI has a system of progressive discipline, but that it was not followed in the case of Kurtzweil. The commission also credited the testimony of Kurtzweil over that of George Zinser with respect to the question of whether the latter complained verbally about Kurtzweil's performance. The commission was satisfied that, on balance, George Zinser's interactions and communications with Kurtzweil were not characteristic of an employer who was seriously concerned with the quality or pace of an employee's work.
Another factor was that while GPI rested its case primarily on complaints about Kurtzweil taking too long to prepare drawings, it offered absolutely no specific evidence on this point, evidence which should have been available to it. It was undisputed that the CAD system used by GPI kept specific information on when and for how long a particular drawing had been in editing. Presumably, comparative data showing the time spent by Kurtzweil and the time spent by Gabriel on various drawings could have been produced. GPI's decision not to produce such evidence, and to instead rely on generalized characterizations and anecdotal references, suggests that the matter of the amount of time taken by Kurtzweil to do drawings might well have been overstated.
Another significant factor, in the commission's view, was that GPI introduced no
evidence whatsoever as to the overall volume of work in 1999 and 2000 as compared
to previous years. Even accepting for the sake of argument the claims made by GPI
that in 1999 and 2000 a backlog was developing in the production of drawings, this
does not necessarily establish that the backlog must have been due to declining
productivity on the part of the draftsman. An increase in the volume of work could
also have contributed to such a backlog. The complete lack of evidence as to how
many drawings GPI needed to prepare towards the end of Kurtzweil's employment
undercuts its argument that the backlog it was experiencing was all attributable to
Direct evidence a discriminatory reason more likely motivated respondent -- The
commission simply does not find it possible to ignore the implications of Brian
Zinser's frank admissions about the role which age differences played in his relations
with Kurtzweil. Brian Zinser admitted that one of the points of tension between
himself and Kurtzweil was the large difference in their ages. While asserting that he
did not necessarily get along better with Mr. Gabriel because he was younger, Brian
Zinser acknowledged that his personality and Gabriel's were more "compatible."
Brian Zinser also said that Kurtzweil was difficult for him to deal with and
acknowledged that it may have had to do with him having been quite a bit younger
than Kurtzweil. Brian Zinser acknowledged that there was "friction" between him
and Kurtzweil from the time he started working with him. The commission views
these admissions by Brian Zinser as supporting a conclusion that Kurtzweil's age
was a material factor in the decisions Zinser made about ending Kurtzweil's
Conclusion -- For all of the foregoing reasons, the commission was persuaded that Kurtzweil's age was a determining factor in the decision to discharge him. For this reason, it has reversed the decision of the ALJ and concluded that discrimination occurred.
NOTE: As is indicated above, the commission consulted with the ALJ in order to obtain the benefit of his personal impressions as to the witnesses who testified before him. The ALJ reiterated the impression he described in his Memorandum Opinion, that the testimony of Brian Zinser concerning his "log" was not credible. Apart from this, the ALJ considered the assertions made by GPI's witnesses concerning their attitudes towards and problems with Kurtzweil to have been credible. For all of the reasons discussed above, the commission has taken a different view of the matter. The commission believes that the dubious nature of the "logs" reflects poorly on the believability of the other testimony of both George and Brian Zinser, and that the direct evidence that Brian Zinser's relationship with Kurtzweil was affected by their respective ages is a significant indicator of the basis for the discharge decision.
James B. Connell, Attorney for Complainant
Dean R. Dietrich, Attorney for Respondent
Appealed to Circuit Court. Affirmed May 26, 2005. Appealed to the Court of Appeals. Affirmed in unpublished opinion, April 11, 2006.
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(1)( Back ) With respect to attorneys fees, as also with respect to back pay, the commission has issued a general remedial order, without quantifying the amounts. If and when the remedial order becomes final, the parties should make an effort to arrive at an agreement about what back pay is due and what a reasonable fee award would be. Further proceedings can be held at that point on those questions if the parties prove unable to resolve them.