ERWIN L KREKULA, Complainant
NORTHLAND DENTAL LABORATORY OF RICE LAKE INC, Respondent A
GENE BEADELL, Respondent B
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.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed September 18, 2007
krekuer . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
Erwin Krekula, whose date of birth is October 17, 1941, was employed in the respondent's cast metal department to make cast partials for dental patients. Gene Beadell is the respondent's sole shareholder. Beadell was Krekula's immediate supervisor. Beadell terminated Krekula's employment in October 2005. Krekula alleged that the respondent discriminated against him in his terms and conditions of employment and termination of employment because of his age. When Krekula rested his case at the hearing, the ALJ granted the respondent's motion to dismiss on the grounds that Krekula had not made out a prima facie case of age discrimination, and subsequently issued a decision in the matter on February 14, 2007.
In a Memorandum Opinion attached to the ALJ's decision the ALJ noted the following:
Mr. Krekula said it was his understanding of the law that if an older person, himself, was replaced by a younger person, Mr. Nelson, NDL had committed age discrimination. Despite the Administrative Law Judge's efforts to convince him otherwise, Mr. Krekula clung to that belief. During his direct testimony, and again on cross-examination, Mr. Krekula said, unequivocally, that he based his claim of age discrimination on the fact that when there was a slowdown in work he was sent home instead of Mr. Nelson and it should have been the other way around because Mr. Krekula was the senior man in the cast metal department.
Ignoring the fact that Mr. Nelson worked in a different department and that no proof of his age was offered, or that he was not hired to replace Mr. Krekula in the first place, no evidence was produced that even suggested Mr. Krekula's age was a factor in the termination of his employment. Moreover, Mr. Krekula admitted that on more than one occasion he challenged Mr. Beadell's knowledge of the processes with which Mr. Krekula worked.
In his petition for review of the ALJ's decision, Krekula asserts that he went into the hearing knowing that he could not win. Krekula indicates that less than 10 days before the hearing (and before the start of the hearing on February 14, 2007) the ALJ told him that he would rule against him because he (Krekula) had not responded to the respondent's First Requests For Admissions. Krekula asserts that "To anser (sic) this letter would be giving the enemy amunition (sic) to rule against you. It was like being tried in the mail."
However, based on Krekula's failure to serve upon the respondent, within 30 days after the respondent's December 29, 2006 service of its First Requests For Admissions, a written answer or objection addressed to the matter, it would have been entirely appropriate for the ALJ to have ruled against Krekula for this reason since the statements contained in the respondent's First Requests For Admissions were deemed admitted by Krekula pursuant to Wis. Stat. § 804.11(1)(b). (1) Statements deemed admitted by Krekula due to his failure to respond to the First Requests For Admissions included admissions that on occasion Krekula refused to follow certain manufacturer techniques in the cast partial department and advised clinicians presenting training for the respondent that they "didn't know what they were talking about", that Krekula would advise Beadell that he (Krekula) knew more about the process/procedure than anyone else and he was right and everyone else was wrong, that despite repeated counseling to follow the respondent's process or procedures as well as those of the product manufacturer when performing his work, Krekula continued to use his own methods when performing his work, that on or about October 19, 2005, in response to Beadell's asking whether he planned on working October 20, 2005, Krekula stated not less than three times that the respondent "could not 'afford' not to have him work", that when asked what he meant Krekula responded that "he had it on paper", that Beadell requested Krekula to bring in the paper when he reported to work on October 20, that Krekula neither reported to work nor contacted the respondent to notify it of his absence on October 20, and that in a telephone conversation on October 21, 2005, Beadell informed Krekula that he could pick up his payroll check.
In any case, the ALJ states in his memorandum opinion that the decision to grant the respondent's motion to dismiss when Krekula rested his case did not include any consideration of the Requests For Admissions, that "There was simply no evidence presented upon which a finding of probable cause could be made. The gist of this case is that Mr. Krekula did not believe his employment should have been terminated and decided that the relative ages of the people involved made it age discrimination." For the reasons cited in the portion of the ALJ's Memorandum Opinion quoted above, the evidence presented fails to support reason to believe that the respondent discriminated against Krekula because of his age.
Krekula also alleges that prior to the start of the hearing on February 14, 2007, the ALJ "questioned" Rick Paulsen when he (Krekula) was not in the room and that he was never given a chance to question Paulsen. (2) Since this is alleged to have occurred prior to the start of the hearing, any statement made by Paulsen was not sworn testimony and thus there was no reason for Krekula to have been given a chance to question Paulsen at this time. (3) Moreover, there is no reason to suspect that there was any improper conduct on the part of the ALJ in his questioning of Paulsen. Indeed, the clear basis for the ALJ's finding of no probable cause to believe that Krekula was discriminated against because of his age focuses on Krekula's own admissions, and other evidentiary shortcomings that were revealed in the presentation of his case.
Krekula continues to assert that he knows more than Beadell about cast metal. He also asserts that he had to teach Michael Nelson the finer points of cast metal and design. Krekula's assertions may well be true. However, as the ALJ's decision makes clear, more than anything else, it was Krekula's own admission to having challenged Beadell's knowledge of the processes with which Krekula worked that undercut his claim of age discrimination with respect to his terms and conditions of employment and termination of employment.
Additionally, Krekula asserts that his witness (unidentified) was not allowed to testify to alleged behavior by Beadell. However, where a party has not filed with the Division and served upon the other party the name of a witness the party intended to use at the hearing no later than the tenth day prior to the hearing, Wis. Admin. Code § DWD 218.17 permits the ALJ to exclude the testimony of such witness (unless it is a rebuttal witness the party could not have anticipated using prior to the hearing). (4) A review of the case file shows that Krekula had failed to comply with this administrative rule.
For the above-stated reasons, the commission has affirmed the decision of the administrative law judge.
cc: Attorney Mark E. Coe
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