121.5 Termination

Age discrimination was found where the Complainant, a controller for the Respondent, established that she was not considered for a director of finance position for which she was well qualified and that, after being asked to assist in training the individual ultimately hired for the position, she was discharged because the Respondent did not require both a director of finance and a controller. In finding discriminatory intent the commission considered that the decision-makers had a pattern of treating older workers less favorably than younger workers and made comments indicating they favored hiring younger workers. Schaefer v. Marcus Ctr. for the Performing Arts, Inc. (LIRC, 09/29/23). NOTE: This case has been appealed to circuit court.

The Complainant, a male assistant district attorney (ADA) over age 40, alleged that his hours were reduced and then he was laid off, in favor of three females who ranged in age from 28 to 33. The Respondent articulated a non-discriminatory reason for the employment actions, that they were based on the Complainant’s weaker job performance. The Complainant failed to show this reason to be a pretext for discrimination. As to his claim of age discrimination, the Complainant pointed to the district attorney’s statement referring to the females as the future of the office. That statement credibly referred not to the females’ ages, but to their excellent capabilities. The fact that the DA retained older male ADAs and hired an older male ADA showed a lack of animus based on age or sex. Sortedahl v. St. Croix Dist. Attorney’s Off. (LIRC, 08/07/17).

The Complainant’s employment with the Respondent for over 20 years, and his advancement in the ranks of the Respondent during that time, satisfy the element of a prima facie case that the Complainant be qualified for the job. But the question of whether the Complainant made a prima facie case was no longer relevant, because the employer articulated a legitimate, nondiscriminatory reason for terminating his employment. When that happens, the case proceeds to consideration of the ultimate factual inquiry, whether the Respondent’s act had a discriminatory motive. The Complainant did not show that the Respondent’s proffered reason, poor performance, was a pretext for discrimination. Kelly v. Sears Roebuck & Co. (LIRC, 05/30/14).

The Respondent produced evidence of a nondiscriminatory reason for the Complainant’s discharge. The Complainant was unable to establish that the Respondent’s proffered reason was untrue, was not the Respondent’s actual motive for discharge, or was an insufficient motive for discharge. In addition, circumstantial evidence did not support an inference of age discrimination: the Complainant was 58 years old when hired; there was no comparative evidence showing favorable treatment of younger employees; there was no evidence of age-related comments by anyone with influence over discharge decision; the decision-makers were in their 50s; and the person hired to replace the Complainant was in her 50s. Perkins v. Rogers Mem'l Hosp. (LIRC, 02/28/14).

An inference of age discrimination in termination is weakened by the fact that the employer hired the Complainant at age 54 and discharged him only a few weeks later. Huston v. Piggly Wiggly/Lena’s Food Mkt. (LIRC, 02/28/13).

The Complainant was informed that his position was being eliminated because it was not essential. However, after the Complainant was discharged, his duties continued to be performed by significantly younger workers. The evidence indicated that the Respondent considered the retirement status of its older workers in deciding who to lay off, and that the Respondent erroneously designated the Complainant as someone who was planning to retire, (although he had never expressed an interest in retiring). The Complainant established that he was unlawfully discriminated against because of his age. Anchor v. DWD (LIRC, 01/04/12).

The Complainant was over the age of 40 when he was hired by the Respondent, just two years before his discharge. All of the individuals who participated in the decision to terminate the Complainant were over the age of 40 at the time. These circumstances tend to undermine the Complainant’s contention that the Respondent was motivated by a discriminatory animus based upon his age (47). Rudd v. Watson Pharm. (LIRC, 05/27/10).

The Complainant’s position was selected for layoff for reasons unrelated to his age. The Respondent explained to the Complainant that his layoff would result in his forfeiture of a significant sick leave conversion benefit, but that he would not forfeit this benefit if he retired instead. The forfeiture of sick leave policy was one which applied to all employees in state service, regardless of age or proximity to retirement. The fact that the Complainant felt compelled to retire rather than be laid off was not a function of age discrimination. Empereur v. DOA (LIRC, 09/23/05).

It is plausible that the Respondent would have chosen to time the Complainant’s discharge with a larger layoff in order to conceal the fact of age discrimination in the Complainant’s case. Two of the three decision-makers involved in the decision to discharge the Complainant had commented unfavorably about the Complainant’s age and suitability for the job shortly before he was discharged. Under the circumstances in this case, these remarks were not mere “stray” remarks. The discriminatory remarks were directly related to the Respondent’s decision to discharge the Complainant. Stern v. RF Tech. (LIRC, 02/06/04).

An employer does not violate the Wisconsin Fair Employment Act when it discharges an age-protected employee because of a physical limitation. In this case, the Complainant could not perform some of the tasks required (such as lifting heavy loads) without assistance. Therefore, the Complainant was not “qualified for the job” and he did not establish a prima facie case of age discrimination. Harrison v. LIRC, 211 Wis. 2d 680, 565 N.W.2d 572 (Ct. App. 1997).

While one of the four workers hired after the Complainant was over the age of 40, this did not immunize the employer when the difference in age was significant. In this case, the Complainant was 63 years old, and the person hired to replace her was 41 years old. Rutherford v. J&L Oil (LIRC, 06/06/97).

Even if wages were used as a factor in selecting employees for layoff, the Complainant failed to establish that there was a correlation between length of service and one’s wages. The Respondent established that some employees with less seniority earned more than those with greater seniority. Further, there was evidence that there were employees in their twenties who were being paid higher wages who were among those selected for layoff. Rose v. Indep. Media Group (LIRC, 01/31/95).

The Respondent’s president made a number of comments which, while evidence of possible age bias, did not inevitably lead to a conclusion that age was a factor in the decision to lay off the Complainant, who was 58 years old. His comment that, “they’re just a bunch of old guys, we should get some young blood in - people that aren’t set in their ways,” did not establish age bias where there was no testimony about when the comment was made or the context in which the comment was made. Rose v. Indep. Media (LIRC, 01/31/95).

The Complainant’s age was a substantial factor in the Respondent’s decision to discharge her where there was evidence that the Respondent desired to replace some of its older employees with younger employees in an effort to attract younger and more professional women as customers. Agents of the Respondent had made remarks relating to age as it affected the business of the store, specifically by their desire to gear the store toward younger women and to attract younger customers by replacing older employees with younger employees because the store was perceived as a store for older women and because younger employees were easier to deal with. Bormann’s v. LIRC (Dane Co. Cir. Ct., 01/21/94).

The Respondent did not discriminate against the Complainant on the basis of age where the Complainant failed to prove that there was a correlation between years of service, salary level, and age. Sullivan v. Sacred Heart Sch. Bd. (LIRC, 03/30/93).

The Respondent did not discriminate against the Complainant because of his age when, in response to a decision to eliminate 800 jobs outside of the Complainant's department, it ranked all supervisors and laid off the three lowest ranked supervisors, including the Complainant, who did not have special skills which the Respondent wished to retain. Murray v. Gen. Elec. Co. (LIRC, 08/07/92).

In age discrimination cases, the Complainant has the ultimate burden of proving that age was a determining factor in the employment decision complained of. The intent of the Wisconsin Fair Employment Act is to protect the right of individuals to be free from employment discrimination because of age. However, the Act is not a guarantee of tenure for the older worker. Hagberg v. Nordson Corp. (LIRC, 06/26/91).

The Complainant failed to establish that he stopped making derogatory remarks about the Respondent and its president after being warned that continuing to make such comments would result in his discharge, or that his subsequent discharge for continuing to make such comments was a pretext for age discrimination. Binder v. Nercon Eng’g & Mfg. (LIRC, 12/18/90).

The Complainant's discharge was not because of age where the Respondent had a good faith belief that a position had to be eliminated because of a decline in work, and where the Respondent did not replace the Complainant. Gentilli v. Badger Coaches (LIRC, 07/12/90), aff’d sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct., 01/15/91), aff’d, (Ct. App. Dist. IV, unpublished decision, 10/24/91).

There is no legal significance, per se, underage discrimination laws, to the retention of less senior employees while more senior employees are laid off. Length of service with an employer is not necessarily an indicator of age. De Kalver v. Magna Graphics Corp. (LIRC, 03/20/90).

There was no probable cause to believe that the Respondent terminated the Complainant’s employment because of age where: (1) there was a downturn in business which led the Respondent to consider staff reductions, (2) the Respondent’s criticisms of the Complainant showed no age bias, (3) the Respondent’s criticisms of the Complainant’s performance were legitimate, and (4) the impact of the layoffs was heaviest on younger workers. De Kalver v. Magna Graphics Corp. (LIRC, 03/20/90).

The Complainant failed to prove he had been discharged because of age where the testimony established that: (1) he had problems with his performance, particularly with respect to cooperativeness and amount of supervision required; (2) he had received a final warning; (3) he resisted training on newer products; (4) he continued to call and question other management staff after stating he was ill; and (5) he serviced an important client in a fashion which was against the specific instructions of both the client and his supervisor. Klaffka v. TRW (LIRC, 02/16/90).

The Complainant's discharge was not because of age where the evidence indicated that the Complainant was in a position calling for greater expertise than he possessed, resulting in “below requirements” ratings at a time when the Respondent decided to cut back personnel by terminating the employment of people with “below requirements” ratings. Johnson v. Trane Co. (LIRC, 01/22/90).

Age was not a factor in the Complainant’s discharge where: (1) a recession had a severe impact on the Respondent’s business, (2) the Respondent had responded to that recession by a reduction in its work force which continued through the time the Complainant was discharged, (3) the Complainant’s position was eliminated as part of an effort to save expenses, and (4) the Respondent made a reasonable and objective judgment that two younger individuals were more qualified than the Complainant to perform the positions that remained after the re-organization. Erickson v. DEC Int’l (LIRC, 01/18/90).

The Complainant established she was discharged because of age where the supervisor who discharged her: (1) admitted having difficulty managing older employees, (2) believed older employees resisted her authority, (3) gave negative evaluations to the Complainant when she had a history of positive evaluations from her other supervisors, (4) was unable to identify specific instances of the Complainant's alleged failure to accept supervisory authority or to comply with company policies, and (5) criticized the Complainant for not completing her work when it had been recognized that the workload could not be completed by one person. Leick v. Menasha Corp. (LIRC, 08/17/89).

There was no probable cause to believe that the Respondent terminated the Complainant because of her age where the evidence showed that the Respondent had first hired the Complainant for one temporary job when she was 59 years old, that it hired her thereafter for a second job, and that it replaced her (after terminating her for unsatisfactory performance) with a woman in her fifties. Frederick v. Madison Metro. Sch. Dist. (LIRC, 11/04/87).

The elements of a prima facie case in a reduction in workforce case are flexible. A Complainant may make such a showing by demonstrating that he was of an age protected by the Act at the time of his layoff and that his layoff was an adverse action taken by the Respondent, if he can also show some evidence from which age discrimination could be inferred. One typical way to raise the required inference is to show that the Complainant applied for a vacant position for which he was qualified, but the Respondent hired a younger person. Another method is to show that the Respondent engaged in a pattern of unfavorable treatment of workers in the protected age group. Fluekiger v. Mathey Constr. Co. (LIRC, 05/14/87).

In a claim of discriminatory discharge on the basis of age, the Complainant must show that she was in the protected age group, that she was discharged, that she was qualified for the job, and that she was replaced by someone not within the protected class or that others not within the protected class were treated more favorably. Schenck v. Northwest Fabrics (LIRC, 02/20/87).

In order to establish a prima facie case of age discrimination in her removal from one position and demotion to another, the Complainant must show that she was a member of a protected age group, that her removal and transfer to another position constituted a demotion, that she was qualified to remain in the position she was removed from, and that she was replaced by someone who was not in the protected age class. Hatlen v. Gizette Printing Co. (LIRC, 02/12/87).

The fact that a terminated Complainant was in the protected age group and that her replacement was not is not sufficient, standing alone, to support a finding of probable cause that age discrimination occurred. Sanrope v. Hillsboro Pub. Sch. (LIRC, 08/22/86).

There was no discrimination in a review commission’s decision to modify a supervisor’s recommendation of discharge in favor of layoff, because four of the five commission members were themselves in the protected age group and there was evidence that the employee did not work well with co-workers. Pitschler v. Kohler (LIRC, 08/14/84); aff’d, Sheboygan Co. Cir. Ct., 10/08/85.

In a claim of discriminatory discharge on the basis of age, the Complainant must show that he was age 40 or older, that he was discharged, that he was qualified for the job, and that either he was replaced by someone not within the class or others not in the protected class were treated more favorably. Here, however, the fact that the Complainant was not replaced by a younger employer is not dispositive, as the necessary elements of a prima facie case are not fixed in stone but vary with the facts of each case. It is enough that the Complainant established facts which raise an inference of age discrimination. The Complainant did so in this case by establishing that he was laid off while a much younger and less experienced employee was retained in a position for which the Complainant was fully qualified and which was in fact essentially a sub-set of the position the Complainant had held. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

An employee in the protected group who was laid off from work and not recalled, in favor of two younger employees and two new hires, raised an inference of age discrimination. Graham Mfg. Corp. v. LIRC (Williams) (Wood Co. Cir. Ct., 02/23/84).

An employee failed to demonstrate that his discharge in a company reorganization was discriminatory by submitting statistical evidence that the employer dismissed a slightly higher percentage of older employees. Bentson v. Weathershield Mfg. (LIRC, 01/06/84).

Comments to an employee that his age would make it difficult for him to heal after an injury and to find other work show that his employer was encouraging him to quit, but the evidence as a whole, including the hiring of other persons over age 50, showed that the employee was discharged for poor performance and not his age. Michaud v. Midwest Breeder’s Co-op (LIRC, 03/09/83); aff’d sub nom. Michaud v. LIRC (Midwest Breeder’s Coop.) (Dane Co. Cir. Ct., 01/19/84).

Where the employer showed that it did not replace a 54-year-old truck driver who was transferred as part of a reorganization, and where one of its two remaining drivers was 61 years old, the 54 year old could not establish probable cause to support his claim that the transfer was related to his age. Reimann v. LIRC (Curative Rehab. Ctr.) (Milwaukee Co. Cir. Ct., 06/17/83).

A person alleging that his discharge was caused by his age established a prima facie case by showing that he was over age 39, that he was performing at a level that met his employer's reasonable expectations and that, after his discharge, his employer sought a replacement. He does not have to show that the person hired to replace him was under age 40. (The Complainant was 62 years old, and his replacement was 45). Wagner v. Rockford Mfg. Assoc. (LIRC, 12/20/82); also, St. Vincent DePaul Soc'y v. MEOC (Dane Co. Cir. Ct., 03/30/83).

Although a discharged employee showed that he had consistently received above average performance ratings and never been disciplined, he did not prove age discrimination where the employer's general manager, who the employee called as a witness, genuinely believed he was not performing satisfactorily. Fellman v. Mercury Marine (LIRC, 12/10/82).

A discharged employee met his initial burden of proving age discrimination by showing that: (1) he was within the protected age group; (2) his work performance was satisfactory; (3) he was discharged despite his satisfactory performance; and (4) he was replaced by a younger person of equal or inferior qualification. However, the employer ultimately prevailed where the employee failed to show that the employer's concern for the age of its work force was not legitimate planning for the future. Henry v. Andrews Roofing & Siding (LIRC, 11/20/81).

There was no age discrimination where the employer told the laid off employee that he was seeking younger, more experienced men in order to avoid informing him that his skills were unsatisfactory. Lloyd v. Hoffman Constr. (LIRC, 08/05/80).

Age discrimination was found in the discharge of four teachers where the average age of the staff was lowered after the discharges and the assistant superintendent, who recommended the termination, made derogatory comments about older teachers. Melrose-Mindoro Area Sch. Dist. v. DILHR (Ct. App., Dist. IV, unpublished opinion, 05/27/80).

In order to establish a prima facie case of discharge based on age, the Complainant must show replacement by a person not in the protected age group. Dixon v. A & P (LIRC, 07/12/79).

Where the employer offers a non-discriminatory business justification for replacing a 58-year-old employee with a 50-year-old, a finding of age discrimination must be supported by a finding in the record that the 58-year-old had superior qualifications and that the employer's business justification was a pretext. Ladish v. DILHR (Bode) (Milwaukee Co. Cir. Ct., 06/14/78).

A 58-year-old employee established a prima facie case of age discrimination in his demotion and discharge by establishing that he was qualified to do the work, he was not considered for other engineering positions which were given to employees under age 40, and a company executive thought he was too old to adjust to a new company plan. The employer could not rebut his claim because it failed to show that the employee was unable to efficiently perform his job duties at the standards set by the employer. Michels v. Giddings & Lewis Machine Tool (DILHR, 12/06/77).

An employer has no duty to attempt to retain an employee who is unable to perform her duties because of age. Kronberg v. DILHR (Lakeshore Tech) (Dane Co. Cir. Ct., 09/13/76).