JAMES F. DUNN, Complainant

CITY OF BURLINGTON
ENGINEERING DEPARTMENT, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations 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 July 28, 1995
dunnjam . rsd : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

In his petition for commission review the complainant argues that the administrative law judge's dismissal of his complaint was based upon a misinterpretation of the complaint. Specifically, the complainant contends that he was physically capable of performing any of the assigned duties that his job required and that he never looked for special consideration because of his age. However, after a careful review of the complaint in this matter, the commission concludes that the administrative law judge's interpretation was correct and affirms her decision to dismiss the complaint for failure to state a claim upon which relief can be granted.

The discrimination complaint filed in this matter consists of a form issued by the Equal Rights Division which basically contains two parts. In the first part the complainant was asked to respond to the question "What did the respondent do that you believe was discriminatory?" In response to that question the complainant stated as follows:

"Through the use of office memos and verbal confrontations my work performance was berated. The primary objective on work activities was the quest for speed. This relates to the fact that a sixty year old was expected to perform at the same pace as one in their lower thirties." (emphasis added)

The second portion of the complaint form is entitled "Discrimination Statement." Here, the complainant was asked to explain why he believed he was treated differently because of his age. The complainant's "Discrimination Statement" consists of basically the same allegations as those cited above, and reads in its entirety:

"The engineering dept. is a small office consisting of an acting city engr. Chris Koceja, one full time engr. tech. and one part time engr. tech. I held the position of full time engr. tech. The duties I performed were basically engineering related. When work assignments were to be performed, the quest for speed was the by-word put forth by the acting city engr. A person in his sixty's does not perform at the pace as a person in his early thirty's. This type of harassment was purveyed through memos and loud verbal confrontations. These incidents reached a head, that forced me to submit a letter of resignation and a premature retirement dated Dec. 27, 1993 and effective on Jan. 21, 1994." (emphasis added)

The gist of the complainant's complaint is that he resigned because he felt harassed by the respondent's criticism of his work performance. However, there is no allegation that the respondent criticized the complainant's performance because of his age, or that the respondent treated the complainant less favorably than other workers because of his age. Rather, the complainant avers that his performance was open to criticism because the respondent expected him to work as productively as younger employes. Even if the facts alleged by the complainant were proven, they would not amount to a violation of the Wisconsin Fair Employment Act, which guarantees equality of opportunity to qualified workers over age 40, but nowhere suggests that individuals in the protected age group are entitled to more favorable treatment than younger workers. See section 111.31, Stats.

There is no sense in conducting a hearing on a complaint where, even if the facts alleged are proven, they do not amount to a violation of the law upon which relief can be predicated. Lambert v. DILHR, Dane Co. Cir. Ct., Case #154-212 (July 25, 1977). Because the commission agrees with the administrative law judge's assessment that the complainant has failed to state a claim upon which relief can be granted, the administrative law judge's dismissal of the complaint is affirmed.

cc: James R. Korom

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

uploaded 2006/01/10