ERD Case Nos. 8500310
EEOC Case No. 055851548  

An administrative law judge of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 30, 1986.  Complainant filed a timely petition for review of the judge's decision.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed April 15, 1987


/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

 /s/ Pamela I. Anderson, Commissioner







ERD Case Nos. 8500310
EEOC Case No. 055851548  

In a complaint filed with the Equal Rights Division of the Department of Industry, Labor and Human Relations on January 10, 1985, the Complainant alleged that she had been discriminated against with respect to her layoff by the Respondent, on March 16, 1984, although no specific grounds of alleged discrimination were expressly stated.   In a complaint filed on February 4, 1985, the Complainant alleged that she was discriminated against because of her age and her Polish ancestry with respect to her layoff by the Respondent on March 16, 1984.  In the third complaint, filed on February 15, 1985 and apparently drafted by an employe of the Equal Rights Division, the Complainant alleged simply that she was discriminated against because of her age with respect to her layoff on March 16, 1984.

None of these complaints have been formally withdrawn or dismissed as provided for in Wisconsin Administrative Code Chapter Ind 88.014.

The matter was assigned to an investigator for the Equal Rights Division, who conducted an investigation only into the issue of age discrimination.   In an Initial Determination issued on November 26, 1985, the investigator concluded that there was probable cause to believe that the Respondent had discriminated against the Complainant because of age.  No conclusion was made on any issue of discrimination because of ancestry.

Efforts of conciliation were unsuccessful, and the matter was certified to hearing. .

The matter came on for hearing before Administrative Law Judge David B. Nance on September 23, 1986 at the Marinette County Courthouse in Marinette, Wisconsin. The Complainant appeared at the hearing in person and by Attorney Richard Voss, Voss Law Office, 248 South Stevens Street, Rhinelander, Wisconsin 54501.   The Respondent appeared at the hearing by Attorney Guy-Robert Detlefsen, of the law firm of Nash, Podvin, Tuchscherer & Weymouth, P. O. Box 997, Wisconsin Rapids, Wisconsin 54494-0997.

The hearing was completed on September 23, 1986.  No transcript of the hearing has been prepared, and the parties have not submitted briefs.

Based on the testimony taken at the hearing in the matter, the Administrative Law Judge makes the following:


1.  The Respondent, Goodman Forest Industries, operates a forest products mill in Goodman, Wisconsin.   The mill was operated for many years by the Louisiana-Pacific Company, was closed in 1982, and was reopened by the Respondent, which had purchased the mill, in 1983.

2.  The Complainant, Celia Pasternak, was born on April 19, 1926. She was employed at the mill in Goodman as an employe of Louisiana-Pacific from 1963 through to the time of the plant’s closing in June 1982. She was reemployed at the mill, as an employe of Goodman Forest Industries, commencing on December 7, 1983.

3.  During both of her periods of employment at the mill in Goodman, the Complainant performed manual work related to the process of production of sheets of veneer.  In her most recent period of employment, the Complainant’s employment involved tasks such as piling, sorting, and taping seams on veneer sheets.

4.  During the period of her employment at the mill as an employe of Goodman Forest Industries, the Complainant was criticized by her supervisors for being slow.  Additionally, there were problems between the Complainant and some of her co-workers.

5.  The Complainant’s employment was terminated on March 16, 1984. The Complainant was informed of her termination by Joe Gostisha, a supervisor in the plant, who told her that they had to let her go, that she was not needed any more.

6.  The Complainant’s age was not a factor in the Respondents decision to terminate her employment.

Based on the findings of fact made above, the Administrative Law Judge makes the following:


1 . The Respondent is an employer within the meaning of the Act.

2. The Respondent did not discriminate against the Complainant because of her age, within the meaning of the Act, with respect to its decision to terminate her employment in March 1984.

Based on the findings of fact and conclusions of law made above, the Administrative Law Judge makes the following:


That the complaint in this matter be dismissed.

Dated at Milwaukee, Wisconsin  October 30, 1986

/s/ David B. Nance
    Administrative Law Judge


The evidence presented by the Complainant in her case in chief -- which consisted solely of her own testimony -- was clearly insufficient to sustain a finding in her favor, and thus her complaint was dismissed at hearing.

The Complainant proved that she was within the protected age category, but that is in essence all that she proved that could conceivably be viewed as related to an age discrimination claim.   Her case was seriously deficient. To the extent that the Complainant’s case was understandable -- and this extent was not great -- it appeared obvious that she was not performing her work satisfactorily.  The Complainant, by her own testimony, demonstrated that she was being criticized for being to slow.  The Complainant herself conceded her slowness and attributed it to her age.  Furthermore, the Complainant, when directly asked if she knew her replaced her after her termination, answered that she did not.  Her general claim that someone did do the work she had been doing after she left was considered by the Administrative Law Judge to be unreliable, given the absence of any apparent foundation for her to have that knowledge -- it did not appear that the Complainant had any direct knowledge about what had gone on at the plant after her termination.

The Complainant's failure to prove, or even allege, that she was performing her work satisfactorily and her failure to prove that she was replaced by a younger person, or even replaced at all, left her case fatally flawed.  There is nothing in the evidence in this case from which the Administrative Law Judge could legitimately draw an inference that the Respondent terminated the Complainant because of her age. 

The earlier complaints -- The file in this case disclosed a situation, not unique in the Administrative Law Judge’s experience, in which an apparently viable claim of discrimination on some basis other than that eventually being investigated is made early on in a complaint and ignored by the Equal Rights Division Investigation Bureau.   The problem with this, as the undersigned has had occasion to note in other decisions,  is that the Equal Rights Division has adopted very specific administrative rules which provide for the process by which a complaint may be disposed of.   The scheme of administrative rules adopted by the Equal Rights Division is quite clear:   If a complaint is filed which meets the standards set forth in Wisconsin Administrative Code Ind Chapter 88.02, it may thereafter only be disposed of in a number of ways specifically set forth in the rules.   It may be dismissed as a part of the preliminary review process described in Ind 88.03.   It may be investigated pursuant to the provisions of Ind 88.06.   Alternatively, it may be dismissed based on the Complainant’s request for a withdrawal, as is provided in Ind 88.04.   This last mentioned section is quite clear in its specification that a dismissal based on withdrawal -- in effect, a dismissal based on a Complainant’s representation that they are no longer interested in pursuing the complaint -- must be made based only on a written withdrawal signed by the Complainant or the Complainant's authorized representative or attorney of record.

As is noted above in the recitation or preliminary matters proceeding the findings of fact, the complaints filed in this matter have never been made the subject of a written request for a withdrawal.  They have never been dismissed.   They are, therefore, apparently still pending, in legal contemplation if not in fact (although it would seem that the two should be the same).   This, however, did not mean that the matter of the ancestry discrimination claim could he addressed at the hearing.   Quite the opposite was the case, since the requirement of investigation and notice of it as an issue had not been met.   However, as the Administrative Law Judge advised the Complainant and her counsel at hearing, if the Complainant wishes she may assert to the Equal Rights Division Investigation Bureau that her complaint of’ ancestry discrimination should be investigated, and that bureau will then presumably take some action on that request.

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