City denies claim, pre-trial phone conference scheduled September 13

by Joseph Back

A prior applicant for a water operator post is suing the City of Stanley over alleged age discrimination in U.S. District Court, saying that he wasn’t considered for a position due to age.

Filed July 21 by attorneys for Edson resident Ed Shilts, the lawsuit seeks “instatement to the position for which he applied or a comparable position,” backpay and other lost compensation, “liquidated damages” per Title 29 626 (b) of the United States Code (U.S.C), pre- and post judgement interest, award of plaintiff’s “reasonable attorney fees,” and “such other legal and equitable relief as the Court deems just or appropriate,” per the official court complaint. The case potentially hinges on a reply Shilts received at the November 1 Council meeting from Mayor Al Haas that contained the word “age” in it. At the time he applied, Shilts was 58.

“I’m going to be careful how we answer that question too for some fact is um…because of age. You know…what we’re looking for was someone to work into this position which is going to take a number of years to get worked into this position. I can’t come out and tell you that it’s age…that’s what it was,” Haas is quoted as saying in the filed complaint.

Age over 40 is a protected hiring category and as such cannot factor into hiring considerations under the Age Discrimination in Employment Act, while workers younger than 40 are not protected in said act.

An unpublished rule proposed by the Equal Employment Opportunity Commission back in 2010 would have amended said Act to allow for “reasonable factors other than age,” while discrimination can still be held to occur when both the applicant and the person inflicting discrimination are both over 40.

Subject in turn to federal law, Wisconsin state law does allow for age consideration in employment on certain specific grounds including hazardous employment, future advancement to a higher level job, school bus drivers, insurance purposes, and retirement plans, per the Wisconsin Department of Workforce Development’s website.

Called upon by summons to respond to the complaint by Shilts, the City of Stanley answered on August 16 in a formal reply, with a pre-trial conference scheduled for September 13 at 2:30 p.m. by telephone.

Stating in its reply to summons that the jurisdiction and venue are proper as to court filing, the city then proceeds to generally deny Shilt’s claims, which center on the alleged age discrimination and the fact that Shilts holds a CDL and has done lab including water testing in his job at a cheese factory. Successful job applicant Dan Demske, age 40, did not have a CDL and was an electrician prior to being hired by the city, with the complaint by Shilts disputing Demske’s prior education and work experience as not directly relevant to the position as advertised.The job listing, which appeared in the September 2, 2021 Stanley Republican, states in part as follows: “City of Stanley Accepting Applications The City of Stanley is accepting applications for a Department of Public Works (DPW) Employee with job emphasis being in the Water Treatment Plant (WTP). This position is under the direct supervision of the Water Operator In Charge and reports to the Mayor and City Council. This position involves a variety of duties to carry out the day to day operations of the public works department. The majority of the duties will be in the water department.

The starting hourly wage is dependent upon qualifications, experience and/or certifications held. City of Stanley also provides a fringe benefits package, Successful candidate will work a weekend rotation with paid overtime. Full job duties and requirements can be found on our website at www.stanleywisconsin.us.” Going on to state a deadline of September 10, 2021 for application materials along with resume, the advertisement closes out with, “The City of Stanley is an equal opportunity employer.” Shilts states in his complaint that he applied prior to the deadline, in late August, but did not receive an interview. Long-time water operator Don Geoettl currently has over 27 years in the position, with the position as posted meant to find his evnetual successor.

The issue first came to a council vote at the October 4, 2021 council meeting following a joint personnel and finance committee meeting on September 16, with members voting to offer the job to Mr. Demske, the offer later accepted by him and approved by the City on October 18 of last year. Following council approval of Demske and a newspaper article on same, Shilts appeared at the November 1 council meeting, seeking assurance that his application was considered, as the article stated two other applicants had only drywall experience.

“That’s not me,” he said of news reports that unsuccessful applicants only had drywall experience. Council member Jason Meyer asked for clarification as to the number based on divergent numbers, to which city clerk Nicole Thiel stated there had been four total applicants rather than three.

The earlier report of three applicants was based on a statement by Thiel at an earlier meeting of “three,” while she said at the November 1 council meeting she meant to say “three additional.”

Pending the outcome of a pretrial phone conference on September 13, the case could be headed to trial by a six-person jury.