DONALD J BINVERSIE, Complainant
MANITOWOC TOOL & MANUFACTURING INC, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter on December 3, 2010. A timely petition for review was filed. For the reasons set forth in the memorandum opinion, the commission issues the following:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
/s/ Laurie R. McCallum, Commissioner
The commission reviewed several of its recent statements on motions for dismissal prior to the close of evidence in Arvin v. C & D Technologies, ERD Case No. 200402097 (LIRC Oct. 31, 2008):
The commission has repeatedly advised against the premature dismissal of a complaint before both parties' evidence has been heard. On this point the commission has stated:
"A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. . . ."
Roberge v. Department of Agriculture, Trade and Consumer Protection (LIRC, May 31, 2005). See, also, Cappelletti v. Ocean Spray Cranberries, Inc. (LIRC, Feb. 25, 2008)(". . . the commission strongly recommends that mid-hearing dismissals be granted only after careful consideration and in the most narrow of circumstances."); Holcomb v. American Convenience Products (LIRC, March 25, 1988)("Caution must be exercised in granting a request to dismiss at the close of a complainant's case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing.")
Binversie's case depended entirely on the indirect method of proof, to which the burden-shifting analysis applies. McDonnell Douglas Corp. v. Green, 41 U.S. 792, 93 S.Ct. 1817 (1973);
Texas Dept of Community Affairs v. Burdine, 450 U.S. 248, 101 S.C5 1089 (1981). Under that analysis, if the complainant presents a prima facie case, then the respondent has the burden to articulate a legitimate non-discriminatory reason for the actions it took, and the complainant would then have the burden to show that reason to be a pretext for discrimination. Once, however, the employer articulates a legitimate non-discriminatory reason for discharge, it no longer matters whether the complainant has established a prima facie case; the case would proceed directly to consideration of the ultimate factual inquiry.
Gentilli v. Badger Coaches, ERD Case No. 86-01411 (LIRC July 12, 1990),
aff'd sub nom. Gentilli v. LIRC (Wis. Cir. Ct. Dane County Jan. 15, 1991). That inquiry is often still focused on whether the employer's proffered nondiscriminatory reason is false or a pretext for discrimination.
Puetz Motor Sales v. LIRC, 126 Wis.2d 168,175, 376 N.W.2d 372 (Ct. App. 1985).
The employer's non-discriminatory reasons for its treatment of Binversie came into evidence during the course of Binversie's case. This is not so unusual.
See, Cortez
v. City of Milwaukee (LIRC Jan. 31, 2001); Dieterich v. Lindengrove, Inc., ERD Case No. 200503499 (LIRC Dec. 29, 2008);
Duarte-Vestar v. Goodwill Industries, ERD Case No. 8800296 (LIRC Nov. 9, 1990);
Matthes v. Schoeneck Containers, ERD Case No. 8551831 (LIRC March 11, 1988). Binversie had three employer warning notices admitted into evidence, each of which stated a criticism of his performance. He also offered testimony that on his last day of employment, February 25, 2009, he was called to a meeting and told by a Chuck Reinhardt, vice president of operations, that he was being "permanently laid off", and that when he asked Reinhardt if it was because of his age, Reinhardt responded "no, poor workmanship."
The question, then, is whether there was probable cause to believe that the employer's non-discriminatory reasons for subjecting Binversie to discipline and termination were pretexts for age discrimination. Pretext may be established by showing the employer's proffered explanation is unworthy of credence.
Puetz Motor Sales v. LIRC, 126 Wis.2d 168, 376 N.W.2d 372 (Ct. App. 1985).
First, even though it does not matter whether Binversie made a prima facie case, the elements of that case are still relevant to whether probable cause exists: his date of birth was January 6, 1947; he was qualified for his job, having been a tool and die maker for the employer since 1999; and the employer treated him adversely by issuing warning notices and ultimately by firing him on February 25, 2009, at which time he was 61 years old. Binversie did not present any evidence that he was replaced by a younger employee, but he presented evidence about the employer's treatment of younger tool and die makers, and argued that those younger employees were similarly situated and treated more favorably than he was.
Of the various non-discriminatory criticisms of the employer, the only one closely associated with the act of terminating Binversie's employment was Reinhardt's "poor workmanship" comment. There was no incident of poor workmanship in evidence, however, on or near the time of the termination. At the time of the termination, the most recent warning notice, issued about four and one-half months earlier, was unrelated to poor workmanship.
The second most recent warning in evidence pertained to poor workmanship. It was issued on September 25, 2008, about five months prior to termination. The criticism in the warning notice essentially was that Binversie was too slow. The warning specifically referred to Binversie's work on the WEDM, or wire machine, where Binversie spent 90% of his time. Binversie admitted that he could have saved a couple of minutes by hitting a stop and start button on the machine at the right time, but he denied the accusation in the warning notice that he was not paying attention. Binversie caused no damage to material in this incident. The warning indicated that Binversie would be evaluated on his performance on October 25, 2008, but Binversie heard nothing more about this incident on October 25th or anytime thereafter.
Anticipating that the question of the slowness of Binversie's work would be part of the respondent's case for discharge, Binversie offered testimony from a former
co-worker, Robert Morris, who retired in June 2008. Morris talked about some of the hazards of working on a new computerized machine called the meltronics machine, and said that he observed the employee working on the meltronics machine only four or five times in a two-year period when there was no work to done on the WEDM. The administrative law judge then sustained an objection to Morris' attempt to give his opinion that if one were to work on the meltronics machine as infrequently as Binversie did, he would naturally be slower at it because of the complexity of the machine. The nature of this objection was competence - that Morris, not being a supervisor, was not qualified to offer this opinion. Morris, however, gave adequate testimony about his familiarity with the meltronics machine to be qualified to give the opinion that one who does not work on it regularly will naturally be slower than one who does. The exclusion of this opinion, while erroneous, was not significant, given that none of the employer's non-discriminatory reasons in evidence for its treatment of Binversie referred to his allegedly slow work on the meltronics machine. The only warning that specifically cited Binversie for slowness had to do with his work on the WEDM machine. That warning could fairly be read as a criticism that Binversie was too slow in general, but since he spent so little time working on the meltronics machine it is doubtful on this record that slowness on the meltronics machine was a reason for his discharge.
The first warning was issued on February 8, 2008, and it, too, pertained to poor workmanship, but its remoteness in time to the termination (more than one year prior) makes it an unlikely cause for termination. The employer stated that Binversie incorrectly changed the offset on a machine, and that as a result the material he was working on had to be scrapped and new material had to be made, adding 20 hours of work-time. Binversie acknowledged that he changed the offset on the machine, that the material was scrapped, and that it may have added 20 hours of work-time, but he disputed that he was at fault. He testified that he checked with his lead man and with the day shift supervisor before changing the offset, and that he followed the advice of the day shift supervisor in changing the offset. Binversie's testimony that the warning was not fair raised a question about whether it was issued in good faith.
The employer's phrase "poor workmanship", then, has very little convincing evidence behind it. Both specific instances of allegedly poor workmanship were remote in time from the termination, and by Binversie's account the first one was unwarranted because it was not his fault, and the second one involved minimal cost in terms of time, and no cost in terms of materials.
Binversie compared himself to several other younger tool and die employees, who
allegedly made mistakes that were of similar or greater severity than his
mistakes, but who maintained their employment. Some of those comparators were: (1)
(1) John Schmidt, a second-shift tool and die worker. The employee testified that he saw Schmidt, DOB 7/29/81, crash a meltronics machine in February or March 2008, causing it to be down for two weeks. Schmidt received no warning notice for this (there was no notice pertaining to Schmidt in Ex. 5, which was stipulated by the parties to be a collection of written warning notices for January 1, 2006 through the date of hearing for employees in the tool and die shop). Schmidt was still employed as of March 30, 2010.
(2) Randy Tenor, a third-shift tool and die worker, DOB, 6/17/58, 11 years younger than Binversie. Tenor received a notice in September 2008 for not working carefully, causing 200 parts to be run incorrectly. He was warned to be more careful, but it was indicated that because he normally does good work, there should be no further problems. The supervisor who signed the notice, Jim Pitsch, was the same supervisor who signed Binversie's warnings. Tenor had received three warnings for a variety of reasons in 2006. He was still employed as of March 30, 2010.
(3) Kent Ninneman, (2) a first-shift tool and die worker, DOB 9/30/65, 18 years younger than Binversie. Ninneman received a notice for leaving an allen wrench in a die to be set up. The die had to be pulled, worked on and reset. He was advised to be more careful, no future evaluation date was set, and the supervisor, Pitsch again, commented that he was sure it would not happen again. Ninneman was still employed as of March 30, 2010.
These comparators may or may not prove to be similarly situated to Binversie, but they are sufficiently comparable to make it plausible that they received more favorable treatment for similar conduct, at least without further explanation from the employer. Conducting a "similarly-situated" analysis calls for a "flexible, common-sense" examination of all relevant factors.
Henry v. Jones, 507 F.3d 558, 564 (7th Cir. 2007). A similarly situated employee need not be identical to the employee in every conceivable way.
Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 365-66 (7th Cir. 2009). As the seventh circuit noted in
Coleman v. Donahoe, 667 F.3d 835, 846 (7th cir. 2012):
So long as the distinctions between the plaintiff and the proposed comparators are not "so significant that they render the comparison effectively useless," the similarly-situated requirement is satisfied...
Crawford v. Indiana Harbor Belt R.R. Co., 461 F.3d 844, 846 (7th Cir. 2006) (the question is whether "members of the comparison group are sufficiently comparable to [the plaintiff] to suggest that [the plaintiff] was singled out for worse treatment").
See, also, McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 283 n. 11, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) ("Of course, precise equivalence in culpability between employees is not the ultimate question: as we indicated in
McDonnell Douglas, an allegation that other 'employees involved in acts against the employer of comparable seriousness...were nevertheless retained...' is adequate to plead an inferential case that the employer's reliance on his discharged employee's misconduct as grounds for terminating him was merely a pretext.");
Arvin v. C & D Technologies, Inc., ERD Case No. 200402097 (LIRC Oct. 31, 2007).
The complainant's evidence was strong enough to withstand the respondent's motion to dismiss, when considered in light of the commission's consistent advice that mid-hearing motions to dismiss should be granted only in the clearest and most unambiguous circumstances, and when there is no reasonable way the complainant can prevail. Therefore, the case should be remanded for a new hearing.
Because some of the complainant's case was excluded based on objections from the respondent, and because the remand hearing will have to be heard by a different administrative law judge, the judge at the initial hearing having retired, the commission remands the matter for a new hearing, not merely a continuation of the hearing. If the complainant chooses to present evidence that was excluded at the first hearing, the administrative law judge assigned to the new hearing will have discretion to deal with that proposed evidence based on the state of the record at the new hearing.
cc:
Attorney Rebecca Salawdeh
Attorney Robert Burns
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