GERMAINE M. SCHOENHOFEN, Complainant

WAUPACA COUNTY, 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 conclusions in that decision as its own, except that it makes the following modification:

In paragraph 6 of the FINDINGS OF FACT, the month "November" is deleted and "December" is substituted therefor.

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

Dated and mailed November 30, 2007
schoege . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Germaine Schoenhofen petitions for a review of the ALJ's decision, which concluded that there was no probable cause to believe the respondent subjected her to less favorable terms and conditions of employment or terminated her employment because of her age.

The respondent hired Schoenhofen in 1987 to work as a resident assistant, a position that provides guidance and assistance for developmentally disabled individuals. Schoenhofen's date of birth is December 7, 1932. Schoenhofen decided to resign after being informed on December 17, 2003, that she was being transferred to the night shift. On December 30, 2003, Shoenhofen provided the respondent with written notice of her resignation, effective two weeks later. In October of 2004, Schoenhofen filed a complaint of discrimination against the respondent.

Schoenhofen indicates on appeal that she believes she was discriminated against on the basis of age because during her employment her "age was brought up in one way or another more than twenty times". Schoenhofen asserts that she was told at various times that she was "losing it" and many times told about her "short term memory". Schoenhofen asserts that she did not retire voluntarily. She asserts that she was demoted and chastised by her supervisors above her at the meeting on December 17, 2003.

The record fails to provide reason to believe that the respondent discriminated against Schoenhofen on the basis of her age, however. Most of the instances where Schoenhofen's "age was brought up" related to comments regarding her birthday that were made by a co-worker. Schoenhofen never told the co-worker that she was offended by the comments nor did she ever complain to the respondent about the co-worker's comments. Schoenhofen identifies her supervisor as having "implied" that she had "lost it", but Schoenhofen does not remember what they were talking about at the time. It is not apparent who Schoenhofen is contending had told her about her "short term memory". Moreover, all of the instances that Schoenhofen cites as occasions where her age was brought up occurred more than 300 days before she filed her complaint.

Schoenhofen and the respondent disagree about what transpired at the December 17, 2003 meeting. Schoenhofen testified that she was told she would only be given 16 hours of work a week in her transfer to night shift, and she contends that she was demoted. Jamie Lodewegen, Schoenhofen's supervisor, testified that Schoenhofen was transferred because of complaints received from other staff and the residents regarding Schoenhofen's interaction with the residents and because it was felt that an opening on the night shift would be a good fit for Schoenhofen. Lodewegen testified that Schoenhofen's transfer was not a demotion; that Schoenhofen received the same amount of pay and hours. Lodewegen denied that Schoenhofen was told she would only be allowed to work 16 hours a week. The ALJ found that Schoenhofen's transfer was not a demotion and that her hours were not reduced. The commission finds no reason to question the ALJ's determination on this issue. Consistent with the testimony of Lodewegen, Amanda Welch, the respondent's personnel director, testified that she was contacted about transferring Schoenhofen to a different shift because of concerns and complaints that Schoenhofen was interfering with the resident's rights and freedom to do things they wanted to do, that there was no mention of Schoenhofen's age or ability to do her job because of her age and that no one indicated that the number of hours Schoenhofen worked during the week would be changed.

Finally, the commission has also considered Schoenhofen's argument that all of the complaints from residents were "trumped up" except for one, but the commission is not persuaded that this was the case.

NOTE: In his memorandum opinion, the ALJ comments that even if the reason for the respondent's transfer of Schoenhofen was motivated by her age it was not an adverse employment action. However, the commission has not adopted the position that a complainant is required to prove that an employment action motivated by a protected characteristic constituted an "adverse employment action." Post v. Mauston School Dist. (LIRC, 08/28/02). The commission is satisfied that the respondent transferred Schoenhofen to the night shift for a legitimate, nondiscriminatory reason-because of the complaints from staff and residents regarding Schoenhofen's interactions with the residents.

cc: Attorney Jenifer D. Binder

Appealed to Circuit Court.

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uploaded 2007/11/30