JOHN ALFRED ANCHOR, Complainant

STATE OF WISCONSIN, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. In the first sentence of the first paragraph of the introduction to the administrative law judge's decision, the date "May 8, 2005" is deleted and the date "May 9, 2005" is substituted therefor.

2. The following paragraph is inserted after paragraph 4 of the administrative law judge's ORDER, and the remaining paragraphs in the ORDER are renumbered accordingly:

"The respondent shall pay to the complainant reasonable attorney fees and costs for its work associated with this litigation subsequent to October 29, 2010, in the amount of $7,177.17.   (1)   A check in that amount shall be made payable jointly to the complainant and Victor M. Arellano and delivered to Mr. Arellano."

3. Paragraph 5 of the administrative law judge's Order is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

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

Dated and mailed January 4, 2012
anchojo . rmd : 164 : 5 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

Statute of Limitations

A preliminary issue raised in this matter is whether the complainant's complaint was timely filed. In its petition the respondent argues that the statute of limitations began to run on January 22, 2004, when the complainant was officially informed that his position had been identified for elimination and that, accordingly, his complaint filed on May 9, 2005, should be dismissed as untimely. The complainant's contention, however, is that the statute of limitations did not begin to run until September of 2004 or thereafter, when he first learned that younger employees were going to be performing his job duties. The commission finds the complainant's argument the more persuasive one.

By statute, the department may receive and investigate a complaint that is filed no more than 300 days after the alleged discrimination. See Wis. Stat. § 111.39(1). However, the courts and commission have consistently held that the statute of limitations does not begin to run until the facts that would support a charge of discrimination were apparent or should have been apparent to a person with a reasonably prudent regard for his or her rights. See, Drabek v. Major Industries, Inc., ERD Case No. CR200901993 (LIRC June 9, 2011); Williams v. Four Points Sheraton Hotel, ERD Case No. CR200702147 (LIRC March 21, 2008); Washington v. United Water Services, ERD Case No. CR199902104 (LIRC Aug. 15, 2003); Oehlke v. Moore-O-Matic, ERD Case No. 8401191 (LIRC July 26, 1988); Reeb v. Economic Opportunity Atlanta, 516 F.2d 924, 11 FEP Cases 235 (5th Cir. 1975).

In this case, the facts that would support a charge of discrimination did not become apparent to the complainant until the fall of 2004 or thereafter. Although the complainant was notified on January 22, 2004 that his job was being eliminated, he received no information to suggest that his job duties were going to be reassigned to anyone else, to say nothing of the fact that the person who would be performing those duties was considerably younger than he. Apart from the mere fact that the complainant was a member of the protected age group and was being discharged, there was nothing to put the complainant on notice that age discrimination might be occurring.

On August 5, 2004, an employee named Jennifer Jirschele e-mailed the complainant that she had been given some new job responsibilities that would require her to help small businesses navigate through the Department of Workforce Development's programs and that the Unemployment Insurance Division administrator thought it would be beneficial for her to observe one of the complainant's labor law presentations. After the August 11 clinic the complainant and Ms. Jirschele had ongoing conversations in which she indicated she would be attending more of the clinics and would eventually be handling them. The complainant testified that, by the spring of 2005, it became clear that Ms. Jirschele was replacing him. Ms. Jirschele was approximately 28-years old. It was only after the complainant became aware that a younger employee was going to be performing his job functions that the complainant formed the belief discrimination may be occurring.

The record does not establish any one clear point in time at which the facts that would support his claim of discrimination became apparent or should have become apparent to the complainant. However, even assuming for the sake of argument that the statute of limitations were to begin running on August 5, 2004, the very earliest date on which the complainant had any inkling that someone else might be performing any of his duties, a complaint filed on May 9, 2005 would be considered timely. 
 

Age Discrimination

The Department of Workforce Development (hereinafter "DWD") was required to engage in a reduction in force pursuant to a directive from the governor. It began to implement its reduction plan in February of 2003. Under the plan, the Unemployment Insurance Division (hereinafter "UI Division") was directed to eliminate a total of 60 positions. To the extent possible, the UI Division was to do so by eliminating vacant positions. DWD also directed that, when deciding which non-vacant positions to eliminate, the UI Division was to focus on reducing administration before positions that provided services directly to the public. The complainant's position was one of those selected to be eliminated, and the question to decide is whether age was a factor in that selection.

The testimony and documentary evidence submitted in this case, which is more fully described in the administrative law judge's decision, indicates that the respondent's decision about what positions to eliminate was focused on individuals who were within retirement age eligibility. The commission will summarize the key points of that evidence below:

• Robert Whitaker, the deputy administrator of the UI Division, testified that part of the analysis of which jobs to eliminate included reviewing individuals who were within retirement eligibility age and that this was a directive from the Office Of Budget, which provided the Division with a list of potential retirees. Although Whitaker denied that the complainant was targeted because of his retirement eligibility, he acknowledged that retirement eligibility was one of the "analysis items" the respondent used and that the complainant's eligibility for retirement was a "predictor of attrition" for the respondent. 
   
• In June of 2003 the respondent generated a list of potential DWD retirees, covering each department in the DWD and listing employees by age from the oldest employee to those in their fifties. A few months later the UI Division generated a draft UI Workforce Reduction Plan, which listed the complainant's position as one that could be reduced. In a box marked "retire" appeared the word "yes." Whitaker testified that at this point in the planning the bulk of the reduction in force was concentrating on those within retirement eligibility age. 
   
• In August of 2003, the Worker's Compensation Division (hereinafter "WC Division") prepared a succession planning memo regarding its reduction in force, in which it addressed the question "Why hasn't the division targeted more potential retirees?" The WC Division responded, in part:

"As we have discussed in succession planning meetings, it is very hard to speculate about all of the employees who will retire within the next two years or to make definite plans based on that speculation. We need to be very careful in this area to avoid any allegations of age discrimination."

• In September of 2003 DWD's Office of Budget sent Robert Whitaker a revised list of personnel reductions. That list included all of the potential retirees in the UI Division, including the complainant, and identified the target number of positions to be reduced.  
   
• A document entitled "UI Reductions" dated approximately February of 2004, identifies the complainant's position as a retirement. 
   
• Around July of 2004, after the complainant had already been notified that his position had been identified for elimination, the respondent sent the DWD secretary's office a "sanitized" version of the potential retiree data, on which it eliminated the names, dates of birth, and salary of individuals. 
   
• The respondent generated an updated reduction list in September of 2004, which identified the positions to be eliminated and individuals who were subjected to an anticipated action. The complainant's name appeared on the list. Under the box entitled "Anticipated Action" was the designation "Retire." However, the complainant had never expressed an interest in retiring.

A confidential e-mail from Linda Hanold, a personnel specialist in the human resource office, to Robert Whitaker, which was attached to the reduction list stated, in relevant part:

"Some of the people who are eligible for retirement, but choose not to retire, may either get laid off, or bump to another position."

• In February of 2005 the Bureau of Human Resources submitted an updated reduction plan showing a list of employees identified as being at risk. The complainant's name appeared on the list and, again, was designated "Retire."

The numerous documents categorizing potential position reductions by the retirement status of the individuals in those positions, and erroneously designating the complainant as an individual who either intended to retire or who had retired, along with witness testimony indicating that retirements were part of the respondent's analysis of which jobs to eliminate, constitute direct evidence that the reduction in force was focused on retirements and that the complainant was targeted for lay-off based on his age. While in its brief in support of the petition for review the respondent states that an employer looking at employees' retirement data, without more, is not evidence of age discrimination and that an employer has a legitimate interest in learning of its employees' plans for the future, the evidence indicates that the respondent did not merely look at employees' retirement data, but used that data as a basis to decide which positions to eliminate.

The respondent also argues that, although the complainant's ability to retire was "indicated at one point for attrition," this is not why he was selected for lay-off. Rather, the respondent contends that the complainant's position was identified for elimination because the respondent considered it non-essential to the UI Division's core functions. The respondent maintains that the complainant's position fit the criteria for elimination in that it did not provide direct services to individuals or businesses and could be cut without adversely affecting the work of the UI Division. It contends that the administrative law judge substituted her judgment for that of DWD and the UI Division about what positions were critical. The respondent's contentions are without merit. The administrative law judge did not apply her own judgment about what positions were critical, but based her decision on the evidence in the record. At the hearing the respondent indicated that it focused its lay-off decisions on positions that did not provide direct service to the public, and that the complainant was not performing work that was an essential function to claimants and employers. However, the respondent acknowledged that the complainant's job was to provide services to employers, an area that the respondent had previously identified as one that should be retained. Indeed, Bruce Hagen, the deputy administrator for the UI Division, stated that the training programs the complainant administered were "incredibly valuable" to the Division.

That the programs the complainant taught were essential to the UI Division is borne out by the fact that, rather than eliminating the complainant's job, as the complainant was told was the case, and as the respondent's internal documents indicate occurred, (2)   the respondent instead reassigned the complainant's duties to other employees. Although the respondent maintained that the complainant's job functions only continued on a reduced basis after he was let go, the evidence does not support this. The complainant held 15 labor law clinics in 2003 and 24 clinics in 2004, the last two full years of his employment. In 2005, the year in which the complainant was discharged, 18 labor law clinics were held. Although the record does not establish how many clinics were held thereafter, as of the end of 2005 monthly clinics had been scheduled to be held in 2006. The complainant also presented shorter labor law classes to employers that were known as "Friday Fundamentals," and these classes continued as well. Based on the foregoing it seems clear that, notwithstanding the respondent's contentions to the contrary, the complainant's job functions were never truly viewed as non-essential and were never eliminated.

The respondent also argues that although the complainant's duties were absorbed by others, nothing in the record shows more favorable treatment towards those employees, such as a pay increase or promotion. This argument fails. It is evident that a younger employee who keeps her job in a reduction in force, while an older employee loses his, has been treated more favorably than the older employee. There need be no pay increase or promotion to show preferential treatment.

The commission has considered the remaining arguments raised by the respondent in its brief, but finds them similarly unpersuasive. Although the respondent asserts that there is "not a scintilla" of evidence in this record to support a finding of age discrimination, the commission concludes that, to the contrary, a preponderance of the evidence warrants a finding that the complainant was discharged because of his age. The complainant was informed that his position was being eliminated because it was not essential. However, the complainant's duties continued to be performed by significantly younger workers. The complainant presented both documentary and testimonial evidence indicating that the respondent considered the retirement status of its older workers in deciding who to lay off, and demonstrating that the complainant was erroneously designated as someone who was planning to retire or had retired, although he had never expressed an interest in retiring. Under all the facts and circumstances, the commission agrees with the administrative law judge that the complainant was discriminated against based upon his age, as alleged.

cc:
Attorney Victor Arellano
Attorney John Sweeney

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

1(1)( Back ) The parties stipulated to the complainant's attorney fees through October 29, 2010, and that amount is not in contention. The complainant's attorneys have requested an additional $7,177.17 in attorney fees and costs related to their work subsequent to October 29. The respondent, although given a specific opportunity to do so, has not raised any objection to the complainant's fee request.

(2)( Back ) An internal memo from Jeanne Benck of the Bureau of Human Resources to the Office of State Employment Relations states, "as part of the reduction, the functions of one administrative policy advisor position were eliminated." At the hearing Ms. Benck acknowledged this was not true. Indeed, only the day before writing the memo at issue, Ms. Benck prepared a performance review for Jennifer Jirschele, in which she noted that Ms. Jirschele took over the programs the complainant had provided.

uploaded 2012/02/01