DON BINVERSIE, Complainant

ALAARK MFG CORP, 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.

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

Dated and mailed June 27, 2001
binvedo . rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

In his brief to the commission the complainant argues that he has established a prima facie case of age discrimination by proving that he is in the protected age group and was qualified for the job, but was discharged and replaced by a younger worker. However, the question of whether the complainant has made out a prima facie case is no longer relevant once the respondent responds to the complainant's proof by offering evidence of the reasons for the action taken. See Gentilli v. Badger Coaches (LIRC, July 12, 1990), aff'd. sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct. Jan. 15, 1991). Where, as here, the respondent has proffered a legitimate nondiscriminatory reason for its actions, there is no need to decide whether or not the complainant established a prima facie case. That said, the commission does note that the complainant's assertion he was replaced by a younger worker, if proven to be true, would be relevant to the question of pretext. The evidence, however, does not show this to have been the case. The individual whom the complainant contends was hired as his replacement was not, in fact, hired to perform the same job as the complainant. Moreover, while workers not in the protected age group may have been hired for similar work subsequent to the complainant's discharge, the respondent persuasively explained that it has difficulty finding qualified workers, that its business is growing, and that, if a qualified tool and dye maker applies for a job, that individual is likely to be hired whether or not the respondent has an actual job opening. Given these circumstances, the commission sees no connection between the complainant's discharge and the respondent's decision to hire a younger worker.

Next, the complainant argues that the respondent discharged him based upon poorly documented, subjective complaints. The complainant points out that courts may be skeptical of an employer's reliance on subjective criteria. However, while it is true that subjective criteria may be difficult to evaluate and, therefore, may more readily permit a finding of pretext, a decision-maker is not required to disregard subjective rationale when it finds those rationale to be credible. In this case, the respondent's witnesses credibly and persuasively testified that the complainant was discharged due to deficiencies in his job performance and attitude. Moreover, the record contains no other evidence to warrant a conclusion that the respondent's explanation for its actions was really just a pretext to mask unlawful discrimination. The complainant was 47 years old at the time he was hired, and the evidence does not suggest that the respondent's workforce is skewed towards younger workers or that the complainant's age was ever a factor in adverse employment actions taken against him. To the contrary, after reviewing the record the commission is left with the distinct impression that, had the complainant's performance and attitude been better, he would still be employed with the respondent today.

Finally, the complainant expends much of his brief on an argument that the respondent failed to accord him similar discipline to that received by an employee named Bob Lindemann, who was 38 years old and whose hours were cut as a disciplinary measure prior to his discharge. The complainant asserts that the respondent never presented a legitimate nondiscriminatory reason for this difference in treatment. Again, the complainant's argument lacks merit. The complaint did not allege disparate discipline, but discriminatory discharge, and while the respondent had the burden of proffering a legitimate nondiscriminatory reason for its decision to discharge the complainant, it had no specific burden of production with respect to the question of why it disciplined the complainant in the manner it did. Moreover, while a showing of disparate discipline might assist the complainant in establishing pretext, the evidence presented on this point does not suggest that the reasons given for the complainant's discharge were a pretext for age discrimination. The respondent's "Conduct Guidelines" indicate that one or two warnings are usually given before termination will be considered and that, where misconduct is sufficiently serious, an employee may be discharged without a prior warning. In this case, the complainant was given a written warning, followed by several meetings at which his ongoing conduct and performance were discussed. The complainant was also transferred from second to first shift as a disciplinary measure, and was required to turn in his key. The respondent indicated that it contemplated cutting the complainant's hours, as it did for Mr. Lindemann, but decided against doing so. These facts do not indicate that the complainant was denied progressive discipline or that he was disciplined more harshly than Mr. Lindemann. Further, the commission finds no basis upon which to conclude that any difference in treatment between the two employees was related to their ages.

The commission has considered the remaining arguments raised in the complainant's brief, but finds them similarly unpersuasive. Because the complainant failed to demonstrate that the respondent's termination of his employment was due to a discriminatory reason, the dismissal of his complaint is affirmed.

cc: 
Gary M. Williams
William P. TeWinkle

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uploaded 2001/06/29