STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

EUGENE G. DINGELDEIN, Complainant

VILLAGE OF CECIL, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 1999503536, EEOC Case No. 26G952087

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, except that it makes the following modifications:

1. The first sentence in paragraph 2 of the FINDINGS OF FACT is deleted and the following sentence substituted therefor:

"Dingeldein, whose date of birth is December 21, 1918, worked for Cecil, as its maintenance man, from 1972 to 1982 and again from 1989 until July 24, 1995."

2. Paragraph 12 of the FINDINGS OF FACT is deleted and the following substituted therefor:

"On the following Wednesday morning, Dingeldein's wife called and informed the board's president that Dingeldein could not accept the reduction in hours and resigned his employment."

DECISION

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

Dated and mailed: May 8, 1997
dingeeu.rmd : 125 : 9

Pamela I. Anderson, Chairman

David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, Eugene Dingeldein, worked as a maintenance man for the Village of Cecil. Dingeldein, whose date of birth is December 21, 1918, first worked for the village performing maintenance work from 1972 to about 1982. The village board hired Dingeldein to perform maintenance work again in May 1989. Dingeldein was 70 years old when rehired.

The maintenance duties that Dingeldein performed included, among other things, snow removal, cleaning the village hall, putting up snow fencing, cutting grass, putting up and taking down Christmas and other street decorations, and removing seaweed that washed in from Lake Shawano. Dingeldein worked in what was described as the full-time position, averaging about 31 hours per week. The village board employed other individuals as part-time maintenance employes that Dingeldein was to call on for assistance. Kenneth Boettcher, who was 67 years old, worked as the part-time maintenance employe during the first half of 1995.

At the village board's regular July 17, 1995 meeting, a number of problems involving Dingeldein's work performance were brought to the board's attention. These included the cleanliness of the village hall and a grass fire Dingeldein had started, where the fire department was called to put out the fire and Dingeldein was belligerent towards the fire fighters. Apparently, before starting the fire Dingeldein had gone out twice and cut the grass although he had been given instructions not to cut the grass. As a result of these problems, the board decided to call a special meeting for July 24, 1995, to discuss with Dingeldein the complaints it had about his work and to confer with him about cutting his hours down.

According to various board members, prior to the July 1995 special board meeting, the board, as a group and through individual board members, had periodically spoken to Dingeldein regarding various concerns about his work performance. One such concern involved his working without assistance to put up flags for the 4th of July and Christmas decorations by using the bucket of the front-end loader and a ladder. Although specifically counseled that he should make more use of the part-time workers, this matter came up several times as Dingeldein did not always follow the board's instructions. Dingeldein's response when told to get assistance would be that he was saving the village money by performing the work alone, and that when he was ready to perform a task he was ready to do it right then and did not want to have to call and wait around for someone else. Many of Dingeldein's tasks could be planned in advance, however. The board was concerned about Dingeldein's safety hanging holiday decorations and performing other tasks that posed safety risks. One board member cited an occasion when Dingeldein put the pier in the lake all by himself during very high winds. After he got the pier in the pier was taken out by the wind and destroyed. The board had also instructed Dingeldein to attend the board's monthly meetings but he chose sometimes not to come to the meetings. Additionally, Dingeldein had been instructed to store flammable materials in a cabinet but failed to do so. At other times the board conveyed to Dingeldein that the village hall was not being cleaned very well.

At the July 24, 1995, special meeting the board expressed their concerns to Dingeldein involving his starting the grass fire on his own, about again using the front-end loader bucket to hang flags, about hauling a lawn mower (apparently a tractor-type) attached by a chain to the front-end loader bucket from the highway to the village hall after having gotten the mower stuck, about not having properly stored flammable materials and about cleaning the village hall. According to the board, it was felt that the only way that it could get Dingeldein to follow directions and to get the work performed in a safe manner was to put him in a part-time assistant position and have someone else in the full-time maintenance position giving him instructions and overseeing his work on a day-to-day basis.

The record shows that at the special board meeting, after the board had expressed their concerns to Dingeldein regarding his work performance but before it announced that it had decided to have him go part time, there were comments by board members that Dingeldein "needs to cut back his hours & slow down a little," "works too hard," "should go down to 10 or 15 hours a week," "(has) got to slow down, because at his age some of the things he does are dangerous," and that "he needs to slow down at work, and needs to enjoy life a little bit."

Dingeldein expressed reluctance to go to part-time work because he loved to work but eventually agreed with the board's decision that he become a part-time maintenance worker. Dingeldein's hourly rate of pay was to remain the same. The board, which had not arranged for anyone to replace Dingeldein as the full-time maintenance worker prior to the special meeting, contacted part- time maintenance worker Kenneth Boettcher about becoming the full-time maintenance worker after the meeting.

Two days after Dingeldein agreed to work part time, Dingeldein's wife called board president, Robert Thurman, and stated that Dingeldein was not coming back to work as he could not accept the reduction in hours or being a part-time helper.

Dingeldein argues on appeal that the respondent's claims for its decision are pretextual and that age was a motivating factor if not the motivating factor behind the board's decision to reduce his hours. As evidence, Dingeldein asserts that there is no mention of safety as a reason for reducing his hours in the July 17 or 24, 1995 board minutes while there are references to age and age-related behavior in the minutes such as, "he needs to cut back his hours & slow down a little," "he's got to slow down, because at his age some of the things he does are dangerous," and that "he needs to slow down at work, and he needs to enjoy life a little bit." Contrary to the assertion by Dingeldein, however, the minutes clearly reflect that the board's decision was motivated by safety concerns. For example, the minutes read in part as follows: "They all had concerns about Gene starting fires in the grass, without anyone being notified that he was going to be doing that. Cutting grass where there were obstacles hidden in the grass that could not be seen. All concerned about the flamables (sic) in fire dept. storage area that were not stored properly." Additionally, the minutes show that Dingeldein was asked about using the front-end loader to carry a tractor from the highway to the village hall, and his use of the bucket of the front-end loader to hang flags. While the word "safety" may not appear in the minutes, safety concerns are reflected in all of these matters raised by the board.

Furthermore, the record shows that Dingeldein had been instructed more than once about some of these matters, such as storing the flammable materials and getting assistance to hang the flags, but failed to do as instructed.

"In age discrimination cases, the plaintiff must establish that age was a determining factor in the decision (complained of). Brown v. M & M/Mars, 883 F.2d 505, 507 (7th Cir. 1989). The plaintiff need not prove that age discrimination was the only factor motivating (the conduct complained of); only that, among others, it was a determining factor. La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405, 1414 (7th Cir. 1984)." (emphasis in original.) Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 469 N.W.2d 224 (Ct. App. 1991).

Dingeldein points to the statements by board members contained in the minutes of the July 24 meeting that he needs to "slow down," and should "enjoy life a little bit" as clearly demonstrating that his age was a determining factor in the board's decision to reduce his hours. While these statements could be construed to represent an age animus, the board members denied that age had anything at all to do with its decision. William Benhke testified that the board's decision was based on a concern over Dingeldein's safety, that he was not getting assistance to perform some of the work as instructed and that by placing someone else in the full-time position over him to provide day- to-day instructions the safety goal could be accomplished. Benhke acknowledged making the comment "he's got to slow down because at his age some of the things he does are dangerous," but stated that that was a concern for safety and that it was not that he felt that Dingeldein was unable to perform the jobs alone, but that he would not get help to do certain jobs as instructed which could result in possible injury. Donald Rahn testified that slowing down concerned Dingeldein just going ahead and doing things at the spur of the moment, not scheduling them and not getting help from people to get the job done in a safe manner. Further, Rahn testified that he did not take age into consideration at all, and, in fact, did not even know how old Dingeldein was. Robert Thurman, who was age 65 at the time of the board's decision, testified that he mentioned that Dingeldein should "take it easy and enjoy life," but that he also says this to his wife who is 21 years younger than he, and that this was not meant as a derogatory statement regarding Dingeldein's age. Thurman also testified that he did not consider Dingeldein's age.

Further, the board members readily acknowledged that Dingeldein worked very hard and that he loved to work, which would also explain why, when faced with concerns about his safety and work performance, the board took the approach of attempting to convince Dingeldein to cut back his hours by suggesting that he should "slow down," and "enjoy life a little bit."

In addition to the above, the fact that the individual who the board had take over Dingeldein's full time duties, Kenneth Boettcher, was himself 67 years of age also suggests that the board was not motivated by age when it decided to reduce Dingeldein's hours.

Apparently as further evidence of pretext, Dingeldein asserts that no board member was able to explain the connection between safety and reduced hours. This assertion is without merit. There was testimony by board members that the idea was to place someone else in the full-time position that would follow the board's orders, thereby assuming responsibility for directing Dingeldein's activities and working with him, and that the goal was safety.

Dingeldein also argues that there was almost no written documentation, either in the form of letters or contained in the minutes of the board's meetings, of the board's concerns about Dingeldein's safety or work performance. However, the record is replete with board members recalling several instances in which Dingeldein had been warned and counseled about his work performance and instructed to get assistance when hanging street decorations and performing other functions that were more suitably done by two workers. Furthermore, as far as the board minutes, the testimony showed that over the years the minutes had not reflected all that was said at board meetings, as they were not verbatim records of the meeting and did not include everything that occurred at a board meeting.

Additionally, Dingeldein asserted at the hearing that Thurman asked him how old he was. Thurman absolutely denied having asked Dingeldein this question, and stated that he did not even recall hearing it. Board member Donald Rahn acknowledged having heard Dingeldein asked that question but stated that he did not know who had asked the question. Rahn pointed out, however, that Dingeldein was asked how old he was way late in the meeting, after the board had already decided that it was going to reduce Dingeldein's hours and Dingeldein had stated that he would accept the part-time position.

Finally, Dingeldein attempts to suggest that age discrimination was behind the board's action based on testimony by the wife of a former board member (Shirley Juds) that she once heard some board members comment sometime prior to 1994 that they wished Dingeldein would retire, and because of an article in a local newspaper regarding the reduction of Dingeldein's hours which quoted Thurman as saying, "We tried not to blame everything on his age." These assertions fail to establish that the board acted on the basis of Dingeldein's age, however. Juds' testimony provided no reason to believe that it was Dingeldein's age that had prompted the board members to wish that he would retire. In response to the newspaper article, Thurman testified that he did not recall saying that at all.

Although conflicting inferences could be drawn from the evidence presented in this case, the commission is not persuaded that a preponderance of the evidence supports a showing that Dingeldein's age was a determining factor in the board's decision to reduce his hours and place him in the part-time position. The board rehired Dingeldein at 70 years of age, recited a fair number of instances in which he had engaged in unsafe work, cited other instances of how he failed to follow the board's instructions, and recalled numerous instances where he had been warned and counseled about his work performance. Moreover, the individual the board chose to replace Dingeldein in the full-time position was himself 67 years old.

Dingeldein has also alleged that the board's decision to reduce his hours and make him subordinate to his former part-time assistant amounted to a constructive discharge. The evidence fails to support this claim. A constructive discharge occurs when an employer makes an employe's working conditions so intolerable that the employe is forced into an involuntary resignation. Bartman v. Allis Chalmers Corporation, 799 F.2d 311, 314 (7th Cir. 1986), cert. denied, 107 S. Ct. 1304 (1987). A finding of constructive will not be made based upon the fact of discrimination alone, the individual must also present evidence of "aggravating" factors. Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 65 (5th Cir. 1980). Furthermore, a loss of prestige or supervisory duties does not, standing alone, constitute a basis for constructive discharge. Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 118-120 (1st Cir. 1977). Particularly where the employe's duties are changed with no reduction in pay. Pena v. Brattleboro Retreat, 702 F.2d 322, 325- 326 (2d Cir. 1983). The evidence in this case indicates that, for reasons of safety and in order to insure that its instructions were followed, Dingeldein was required to give away his supervisory authority to Kenneth Boettcher, who was of similar age and with whom he had worked in the past. Dingeldein's hourly rate of pay was not affected. These circumstances did not make Dingeldein's working conditions so intolerable so as to amount to a constructive discharge.

cc: Robert W. Swain, Jr.
Timothy J. Schmid

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