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

CARL D GAHLMAN, Complainant

VILLAGE OF STURTEVANT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200301296, EEOC Case No. 26GA301085


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 conclusions in that decision as its own, except that it makes the following modifications:

References in the decision to the "City of Sturtevant" are changed to the "Village of Sturtevant."

The second numbered paragraph of the CONCLUSIONS OF LAW section is modified to read as follows for purposes of clarification:

2. That the Respondent did not discriminate against the Complainant, in violation of the Act, based on age in regard to the decision to reorganize the command staff duties and shift assignments effective April 1, 2003.

The FINDINGS OF FACT section is deleted and the following substituted to correct certain errors and to more accurately and completely reflect the evidence of record:


FINDINGS OF FACT

1. The complainant's date of birth is December 27, 1950. He served as a police officer for respondent from approximately 1973 through 1983, and then again from approximately 1985 through at least May 2004. As of May 2004, the complainant had served more than 29 years as a police officer for the respondent.

2. In 1998, the respondent appointed Art Scola to the newly created Director of Public Safety (Director) position. In this position, Scola supervised the village police department, fire department, and dispatch center. The complainant expressed his concern to the Sturtevant village board at that time that Scola was not a certified law enforcement officer. The complainant also discussed this concern with Scola.

3. After he became the Director, Scola recommended to the village board the promotions of complainant from patrol officer to captain, Robert Mallwitz (Mallwitz) from sergeant to captain, and Sean Marschke (Marschke) from patrol officer to sergeant. The village board approved these promotions. The sergeant position and the two captain positions became the three supervisory or command officer positions within the respondent's police department.

4. Upon implementation of these promotions, the complainant's assignments included community policing, Mallwitz's assignments included operations, and Marschke's assignments included supervising second shift patrol and 911 dispatch.

5. Mallwitz's date of birth is March 10, 1952. As of May 2004, Mallwitz had served more than 30 years as a police officer for respondent, including two periods of time as the acting police chief.

6. Marschke's date of birth is September 8, 1970. As of May 2004, Marschke had served 12 years as a police officer for the respondent.

7. During 2000, the command officers formed the Sturtevant Supervisory Law Enforcement Association (Association) which was certified in September of 2000 as the exclusive bargaining representative of respondent's police department supervisors. On April 24, 2001, the Association filed a mandamus action against the respondent alleging failure to bargain in good faith.

8. In June of 2001, Scola issued a directive requiring that employees of respondent's police department go through the chain of command in communicating with the village president or the village board of trustees. The complainant indicated to Scola that he disagreed with this directive.

9. In September of 2001, Scola changed the command officers' Monday through Friday work schedule to one in which they were scheduled to work weekends on a rotating basis. The complainant indicated to Scola that he disagreed with this change, and filed a related grievance.

10. Some time prior to March 2003, the complainant, even though he was aware that he was not using the required format, had business cards printed at respondent's expense. The complainant received an oral reprimand as a result.

11. In January of 2002, Scola rotated the assignments of the captains. The complainant was assigned to operations, patrol supervision, external investigations, and patrol officer scheduling and payroll. Mallwitz was assigned to community policing and internal investigations. The complainant expressed to Scola his concerns related to these changes. It is a common practice for police departments to rotate the assignments of command officers.

12. In January of 2002, the command officers requested that they be offered an early retirement option by the respondent, and proposed that they be permitted to retire at age 52 with health insurance benefits provided by respondent until they qualified for Medicare at age 65. The existing policy at that time provided for command officers to retire at age 57 with such benefits. The complainant would turn 52 on December 27, 2002, and Mallwitz would turn 52 on March 10, 2004.

13. In response to this request, the command officers and respondent entered into a series of negotiations, but, as of May 2004, had not yet reached an agreement.

14. Beginning no later than May of 2000, it was the consensus of the village board, which it expressed to Scola, that it was not an effective practice for both of the police captains to be scheduled to work first shift while there was no supervisor on the third shift.

15. Some time prior to March of 2003, Marschke requested that he be permitted to attend a ten-week law enforcement training program conducted by Northwestern University. Twelve hours of this program related to police department accreditation. Scola presented Marschke's request, with his endorsement, to the village board which approved it and appropriated the associated $3,000 program fee. Neither the complainant nor Mallwitz requested permission to attend this training program, or otherwise expressed interest in it. The complainant indicated to Scola his belief that the accreditation program was unsuitable for the Sturtevant police department.

16. Based on information he received as a result of Marschke's attendance at this Northwestern training program, Scola decided to pursue accreditation of the village police department. Scola recognized that this accreditation project would require the investment of significant staff resources over an extended period of time.

17. In a document dated March 14, 2003, Scola set forth his plan to provide supervisory coverage for the third shift, assign a command officer to the accreditation project, and rotate other command officer assignments. Pursuant to this plan, effective April 1, 2003, the complainant would be scheduled to work the third shift, and would be responsible for supervising 911 dispatcher scheduling and payroll, court appearances and records, municipal lockup, and third shift patrol; Mallwitz would be scheduled to work first shift, and would be responsible for supervising operations, community policing, motorcycle patrol, and first shift patrol; and Marschke would be scheduled to work second shift, and would be responsible for supervising the accreditation project, department training, and second shift patrol. Mallwitz is the only motorcycle officer in the department, and it is more effective to use the motorcycle as a community policing tool on the first shift.

18. On March 14, 2003, the complainant and Mallwitz were not scheduled to work, but stopped by the office and had a conversation with Scola. At the time this conversation occurred, Scola could not discuss the schedule/assignment changes with them due to the bargaining agreement requirement that he provide prior notice of these changes to certain patrol officers. Marschke was on duty that day, and, after Scola satisfied this notice requirement, he directed Marschke to deliver the March 14 document to the complainant and to Mallwitz at their homes.

19. In the March 14 document, in addition to describing the changes, Scola stated as follows, in pertinent part:

Starting April 1, 2003, many of the Sturtevant Police Department command staff's duties will be changed to reflect a department that is surging into the 21st Century. We must realize the longevity that we have within the police department's staff as many of us are reaching the end of our careers. However, Sgt. Marschke, young in his police career, is expected to remain with the department, if that is his decision. It is my opinion that we should leave a department substantially improved, and the following changes will facilitate improvements for this department.

Over the last several years, I have noticed, and I am sure that you have noticed, unrest between several factions within the command staff and me. This has splintered the department's objectives, and I am sure yours too. Many of the goals that I have set for the department and for myself have fallen short of my personal expectations, and if you search your conscience, you will agree that some of your convictions have also fallen short. A department, no matter what its size, should be in the growth stage instead of content with comfort zones and staying at status quo.

Not only must I be an effective director, but I must also be an effective strategist. It is the chief's responsibility to provide the framework and direction for the overall department operations. I must continually specify where the department will place its emphasis in terms of services to its customers, define performance criteria, and determine what special competencies the department will emphasize.

That said, it is my decision that the department will be looking into the accreditation process....In order to accomplish this monumental task, I have changed many of the command staff's duties...So that we can comply with [Wisconsin Law Enforcement Accreditation Group], Sgt. Marschke will devote the bulk of his time to revamping the old and somewhat out-of-date standard operating procedures and revising job duties and job descriptions of all police department personnel...

20. Scola's office hours overlap the first and second shifts, but not the third shift. The accreditation project requires regular interaction between assigned staff and the Director.

21. Between April 1, 2003, and May 6, 2004, Marschke has coordinated compliance with 59 of the 221 standards required by the accreditation program. Due to staffing cutbacks resulting from village board budget decisions, Marschke was able to devote more time to this assignment in 2003 than in 2004. Due to these staffing cutbacks the command officers spent a majority of their time in 2004 performing patrol duties on their assigned shifts.

22. First shift work is considered by the command officers to be more desirable than second shift work, which is considered by them to be more desirable than third. Shifts are assigned to patrol officers on the basis of seniority pursuant to the terms of the applicable collective bargaining agreement. The Director has discretion to assign shifts to command officers.

23. Since at least 2001, there has been a strained work relationship between Scola and the command officers.

24. The complainant filed this charge of age discrimination on April 2, 2003.

DECISION

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

Dated and mailed June 30, 2005
gahlmca . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


In addition to his allegation of age discrimination, the complainant references both alleged retaliation and the respondent's creation of an allegedly hostile work environment in his post-hearing brief. However, retaliation was not charged by the complainant in his discrimination complaint, and, even if it had been, the record does not support a conclusion that he engaged in a cognizable protected activity. In addition, the reference to an allegedly hostile work environment contemplates that a claim of harassment is under consideration. However, the adverse actions charged here, i.e., changes in shift and duty assignments, as discrete employment actions, are not properly analyzed as acts of harassment.

Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc., v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003). As stated by the court in Puetz:

McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).

It will be assumed for purposes of analysis that the complainant succeeded in establishing a prima facie case of age discrimination here. See, U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983)(the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken); Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).

The respondent has articulated legitimate, non-discriminatory reasons for Scola's April 2003 changes in the complainant's shift and duty assignments, i.e., to address a long-standing concern of the village board by assigning a supervisor to each of the three work shifts, to assign the long-term accreditation project to the supervisor with specific training in that area, to assign that supervisor to a shift which would enable him to interact regularly with the Director, and to assign the only supervisor qualified as a motorcycle officer to the shift on which use of the motorcycle for community policing would be most effective.

The burden would then shift to the complainant to demonstrate pretext.

The complainant first argues that the fact that Marschke was shown the March 14 reorganization document before either the complainant or Mallwitz demonstrates pretext. However, the complainant did not successfully rebut Scola's testimony that he was required to provide prior notice of the reorganization to certain patrol officers, and, once he satisfied that requirement, he provided the March 14 document to Marschke, the only supervisor on duty at the time, and directed him to deliver it to complainant and to Mallwitz at their homes. This does not demonstrate pretext.

The complainant next argues that pretext is demonstrated by the fact that Marschke was provided preferential training benefits when he was authorized to attend the Northwestern training program. However, the record shows that, in contrast to Marschke, neither the complainant nor Mallwitz ever requested permission to attend this program, or, in fact, ever expressed any interest in it. Pretext has not been shown in this regard.

The record shows that, when he first became the Director, Scola, who was aware that the complainant was the oldest officer in the police department at the time, recommended to the village board that the complainant be promoted two levels and Marschke and Mallwitz be promoted one. This would tend to militate against a conclusion that Scola was motivated by the complainant's age in his management of the police department. This is reinforced by the fact that Mallwitz, who was only 14 months younger than the complainant, was retained on the first shift in April 2003, and retained what the complainant considered the most desirable assignments.

As Scola and the complainant worked together, they developed what appears to be a strained, if not adversarial, working relationship. The record supports a conclusion that this did not result from Scola's concerns about the complainant's age, but instead from the complainant's active opposition to Scola's management decisions and proposals for change. It is somewhat ironic that the complainant contends here that the respondent is trying to force him to retire, when, in fact, the command officers themselves introduced the subject of early retirement when they proffered a proposal to the respondent in January of 2002 which would have enabled the complainant to retire on December 27 of that year. It is also somewhat ironic that the complainant asserts that he should have been assigned the accreditation project when he apparently had made no secret of the fact that he believed that seeking accreditation for the Sturtevant police department was a bad idea.

Scola was aware, since at least May of 2000, that the village board did not believe that two police supervisors should be assigned to first shift and none to third shift. When it came time to assign a supervisor to each shift, the record shows that Scola reasonably concluded that Mallwitz should remain on first shift due to the fact that he was the department's only motorcycle officer and it was more effective to use the motorcycle as a community policing tool on the first shift. In addition, the record shows that Scola was reasonably justified in assigning Marschke to the accreditation project due to his recent related training, and in concluding that, in order to properly coordinate this project with the Director, Marschke would have to be assigned to either the first or second shift.

The complainant has failed to prove that the reasons offered by the respondent for the April 2003 shift/assignment changes were a pretext for age discrimination.

Finally, the complainant offers what he characterizes as direct evidence of age discrimination, i.e., a statement in the March 14 reorganization letter prepared by Scola contrasting those at the end of their careers, presumably including the complainant, with the department sergeant, who was described as an individual "young in his police career" and "expected to remain with the department." Considered in the context within which this statement was made, it was more plausibly, as Scola alluded in his testimony, an invitation to the two captains, who had consistently demonstrated their attachment to the status quo and their desire to leave the department as soon as practicable, to accept, as part of their legacy, the changes he and the village board believed were beneficial for the department, including the department accreditation project, and to accept the assignment of this long-term project to the supervisor who was probably going to remain with the department the longest; rather than, as the complainant argues, an indication of Scola's desire to bypass the two older supervisors and groom the younger sergeant to take his place by assigning him this project. As discussed above, the respondent was reasonably justified in assigning this project to Marschke given his recent relevant training, which neither the complainant nor Mallwitz requested or even showed any interest in pursuing.

The complainant failed to sustain his burden to prove age discrimination as alleged.

cc:
Attorney Robert K. Weber
Attorney William R. Halsey


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