IGOR F MYASKOVSKY, Complainant

METAVANTE 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, 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 that it makes the following modification:

In the second full sentence on page 16 of the administrative law judge's FINDINGS OF FACT the phrase "has not become obvious" is deleted and the phrase "has now become obvious" is substituted therefor.

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

Dated and mailed May 25, 2007
myaskig . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

In his petition for commission review and supporting statement the complainant argues that the respondent made a plan to force him to retire or fire him for poor performance. In support of this contention the complainant argues, among other things, that his supervisor sent him an e-mail indicating she needed to plan for the day he retires, that she started to eliminate his role as a host configuration manager technical supervisor, that she rejected his time sheet because he did not log a vacation day, that she fabricated his performance evaluation to decrease his ratings, and that he was offered a severance package in an attempt to induce him to resign. The complainant's arguments are unpersuasive. The record indicates that the complainant was the first to broach the subject of retirement, having advised the respondent in February of 2004 that he intended to retire sometime that year in order to move to Atlanta. Given this announcement, the respondent's subsequent request that he provide the anticipated date of his retirement and other information that would assist it in moving the department forward in his absence was not unreasonable, and the commission sees nothing to suggest that the respondent was trying to force the complainant out because of his age. Further, while it does appear that the complainant's new supervisor made certain changes to his work schedule and job responsibilities, and that she was critical of some aspects of his job performance, the commission sees no basis to conclude that the respondent made any managerial decisions because of the complainant's age, and it believes that the criticisms of the complainant's job performance were warranted. The complainant, while clearly a very gifted technician, was reluctant to share his knowledge and train others, and resistant to requests that he adhere to a work schedule and communicate clearly about his anticipated progress. Finally, it is apparent from the record that the decision to offer the complainant a severance package was necessitated by a reasonable belief that the complainant would not be able to work effectively until the date his retirement was to take effect and that it would be in the best interests of both parties to offer the complainant a salary in lieu of completing his final weeks of employment.

The commission has considered the remaining arguments raised by the complainant in his petition, but finds them similarly unpersuasive. Because the commission agrees with the administrative law judge that the complainant has not demonstrated probable cause to believe he was discriminated against in the manner alleged, the dismissal of the complaint is affirmed.

cc: Attorney Ely A. Leichtling

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2007/05/29