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



ERD Case No. CR200303269, EEOC Case No. 26HA300058

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:

The following sentence is added to numbered paragraph 9. of the FINDINGS OF FACT section:

DOA has utilized this option to exempt from layoff those employees with uniquely specialized skill and knowledge.


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

Dated and mailed September 23, 2005
empereu . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


The complainant, relying upon Gentilli v. LIRC, Case No. 89 CV 2004 (Wis. Cir. Ct. Dane Co. March 30, 1990), argues that, at the probable cause stage, the very most a complainant should be required to do is set forth "that which would be required to make out a prima facie case."

It should first be noted in this regard that the circuit court's analysis of the probable cause standard in Gentilli does not establish binding precedent or authority for the commission, but instead may be cited or relied upon for whatever persuasiveness may be found in its reasoning and logic. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992).

"Probable cause," for purposes of the WFEA, is "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the [WFEA] has been or is being committed." Wis. Adm. Code § DWD 218.02(8).

The concept of probable cause set out in this administrative code provision focuses on probabilities, not possibilities (Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992)), and lies somewhere between preponderance of the evidence and suspicion (Hintz v. Flambeau Medical Center, ERD Case No. 8710429 (LIRC Aug. 9, 1989)). The concept of the prima facie case, however, focuses on inference and presumption, which are more closely akin to possibility and suspicion than to probability. As a result, the complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged. Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005). See, also, Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).

It is clear from the record that the complainant established a prima facie case of age discrimination, and that the respondent articulated a legitimate, non-discriminatory reason for its decision to include his position in the layoff group i.e., a projected reduction in the need for the type of carpentry services the complainant's position was assigned to perform. Under the burden-shifting McDonnell Douglas (1)  analysis, the burden would then shift to the complainant to demonstrate pretext.

Complainant argues that pretext is demonstrated by the mention of retirement at his April 24, 2003, meeting with his supervisors. However, given the length of the complainant's tenure in state service, and the impact his layoff could have on the benefits he had accrued during this tenure, Walker and Krause were reasonably justified in mentioning retirement as one of the complainant's options in lieu of layoff, particularly given the fact that, as far as they knew at the time, the complainant's layoff, but not his retirement, would result in his loss of a significant sick leave conversion benefit.

Complainant further argues that pretext is demonstrated by the fact that Krause, who was most familiar with his day-to-day assignments, did not initially recommend that his position be targeted for layoff. However, the record shows that, at the time she made her initial recommendation, Krause was not aware of the impending moratorium on certain relevant building projects and, once this moratorium was considered in conjunction with a projected reduction in carpentry needs due to recent completion of certain renovation projects, Krause agreed that carpentry would be a less critical need for the bureau/division in the upcoming biennium. The record supports a finding that respondent's decision to target two carpenter positions for layoff was reasonably justified based on considerations of projected program needs.

Complainant contends that pretext is demonstrated by the respondent's failure to utilize an exemption to protect him from layoff. However, the record shows that the respondent reserved such exemptions for those position incumbents with uniquely specialized skill and knowledge. Although the complainant was an experienced carpenter with a solid work record, the record does not show that he possessed any uniquely specialized skill or knowledge. As a result, the respondent was reasonably justified in relying upon seniority to determine which two of the three incumbent carpenters would be placed in the layoff group, and it is undisputed that the complainant was less senior than Vind, the carpenter who was retained.

The complainant finally argues in this regard that the fact that a carpenter was hired after his retirement to perform his previous duties and responsibilities demonstrates pretext. However, the record shows that, on five occasions during the year after the complainant's retirement and Leckwee's layoff, respondent hired an independent contractor for a few days at a time to perform carpentry work, and that the time this contractor spent performing this work was equivalent to five percent of a full-time position. Walker credibly testified that the projections upon which the layoff decision was based turned out to be quite accurate.

The complainant has failed to show pretext, and has failed, as a result, to prove that probable cause exists to believe that he was discriminated against on the basis of age when his position was selected for layoff.

The complainant also contends that he was constructively discharged.

To prove a constructive discharge, the complainant must show that, for a discriminatory reason, working conditions are rendered so intolerable that a reasonable person would feel compelled to resign. See, Waedekin v. Marquette University, ERD Case No. 8752240 (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Dingeldein v. Village of Cecil, ERD Case No. 199503536 (LIRC May 8, 1997), citing Bartman v. Allis Chalmers Corporation, 799 F.2d 311 (7th Cir. 1986); Froh v. Briggs and Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004).

To accurately explain to an employee, once his position has been selected for layoff for reasons unrelated to his age, that his layoff will result in his forfeiture of a significant sick leave conversion benefit, but that his retirement will not, and the employee's selection of the retirement option as a result, does not constitute a constructive discharge. The forfeiture of sick leave policy was one which applied to all crafts employees in state service, regardless of age or proximity to retirement. The fact that the complainant felt compelled to retire was not a function of age discrimination, but was instead a function of the benefits policies in effect at the time, the lack of current transfer or other employment opportunities, and the fact that one of the incumbent carpenters in the division had more seniority than the complainant, factors over which the respondent had no control.

Finally, the complainant argues, citing Strozinsky v. School Board of Brown Deer, 2000 WI 97, 237 Wis.2d 19, 614 N.W.2d 443 (2000), that the types of factual findings required to be rendered in resolving a constructive discharge claim are appropriately reserved for a proceeding on the merits, not a proceeding on the issue of probable cause. However, findings of fact and credibility determinations are appropriately rendered by an administrative law judge (ALJ) in a probable cause proceeding and by the commission de novo upon appeal of the ALJ's decision.

cc: Attorney Mark Saunders

Appealed to Circuit Court. Affirmed June 21, 2006.  Appealed to the Court of Appeals.  Affirmed (unpublished summaru disposition) July 2, 2007.

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(1)( Back ) McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973).


uploaded 2005/09/28