CARL WILLIAM BECKER, Complainant

REISINGER HEATING INC, 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 July 23, 2007
beckeca . rsd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

However, as argued by Reisinger, Becker's charge of discrimination was not timely filed as to this allegation. Given the September 23, 2005, date of filing, the actionable period would have commenced on November 27, 2004. Even if the continuing violation doctrine applied, the record would have to show that at least one sales referral diversion occurred during the actionable period. However, the final sales referral referenced in the record occurred on Friday, November 26, 2004. Not only was this referral outside the actionable period, but it also was a referral to Becker, not to Easley or Waraxa.

Moreover, even if sales referral diversions to Easley and to Waraxa had occurred during the actionable period, Becker failed to show that they could have been motivated by age. The record shows that Easley was in the protected age group at the time and, in fact, was only approximately five years younger than Becker, and Waraxa's age is not a matter of record.

Becker also alleges that his termination was motivated by age discrimination. The commission agrees with the ALJ's analysis of this issue.

In his effort to prove that he was replaced by a younger person, in his appeal to the commission, Becker offers for the first time the birth date of Tony Johnson. However, the commission is limited to the evidence of record in deciding this matter. See, Valdes v. Harley-Davidson Motor Co., Inc., ERD Case No. CR200203820 (LIRC Oct. 27, 2006). In order to justify further hearing to permit additional evidence to be offered, the evidence sought to be offered must not have been reasonably discoverable at the time of hearing. Whipp v. DePaul Rehabilitation Hospital, ERD Case No. 8651101 (LIRC Feb. 24, 1998); Tate v. Rouse-Milwaukee, Inc., ERD Case No. 9151019 (LIRC May 16, 1995). Since the birth date of Tony Johnson was discoverable at the time of hearing with the exercise of reasonable diligence, further hearing is not merited here.

Becker also argues that his testimony established that Tony Johnson had been hired as a sales professional for Reisinger after Becker's termination. However, as the ALJ indicated in his decision, this testimony was uncorroborated hearsay, relying as it did upon a statement made to Becker by an individual who did not testify at hearing. Moreover, as discussed above, even if competent testimony had established this fact, Tony Johnson's age is not a matter of record.

Becker also argues that the fact that another worker terminated by Reisinger filed an age discrimination charge, which was ultimately settled, tends to support his claim. However, this fact does not establish that Reisinger actually engaged in age discrimination. Moreover, each discrimination charge is decided on its own merits and its own record, and, even if Reisinger was held to have engaged in age discrimination in regard to one worker, this would not establish that it did so in regard to another.

Becker appears to argue that the respondent's failure to call Waraxa as a witness compromised his ability to sustain his burden of proof. However, Becker had the ability to notice Waraxa as one of his witnesses, and to then call him at hearing, but failed to do so.

Becker further argues that the departure of nine of eleven workers aged 40-70, after Waraxa became president, establishes that Reisinger was engaging in age discrimination during that time period. However, the competent evidence of record does not indicate the nature or other circumstances of any of these nine separations, other than the terminations of Becker and Florette Smith. In addition, this is not a disparate impact case, where statistical information relating to Reisinger's workforce could be relevant and dispositive, but instead a disparate treatment case. Moreover, even if this were a disparate impact case, the statistical evidence offered by Becker is clearly insufficient to establish age discrimination. See, Rosneck v. UW-Madison, ERD Case No. CR200303285 (LIRC Aug. 10, 2006).

Becker finally alleges that he was retaliated against for engaging in a protected fair employment activity. However, the evidence of record, either through the testimony of Becker or Florette Smith or otherwise, does not show that Becker had ever engaged in such an activity, or that the alleged retaliators had any reason to be aware of it if he had.

Becker has failed to sustain his burden to prove that probable cause exists to believe that he was discriminated against or retaliated against as alleged.

cc: Attorney Brian M. Radloff

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