ALLEN BEDYNEK-STUMM, Complainant
DEPARTMENT OF ADMINISTRATION, Respondent A
DEPARTMENT OF HEALTH AND FAMILY SERVICES, Respondent B
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 February 8, 2008
bedynal . rsd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
In early 2003 the Board on Aging and Long Term Care (BOALTC), which is attached to the Department of Administration for administrative purposes, sought to fill a federally funded part-time Clerical Assistant 2 position provided through the Wisconsin Senior Employment Program (WISE). WISE is administered by the Department of Health and Family Services. WISE is authorized under Title V of the Older Americans Act.
WISE provides useful classroom and part-time on-the-job subsidized training in community service assignments for low income older persons who are 55 years of age and older, and whose prospects for employment are poor and have the greatest economic and social need. "Community Service Assignments (CSA) are non-profit organizations (501(c)(3) providing enrollees with practical training and valuable work experience consistent with their employment objective, and at the same time contributing to the general welfare of the community." WISE is a means to provide participants with the skills, training, and experience necessary to obtain gainful employment. Individuals applying for the WISE program must meet the following eligibility requirements:
The duties of the Clerical Assistant 2 position were: To organize and maintain all publications to be distributed by the agency and to coordinate outgoing mail for the central office; to provide assistance to staff on in-house and external photocopying; and to provide ongoing program support for supervisory and professional staff.
Allen Bedynek-Stumm, a white male, was one of two applicants for the Clerical Assistant 2 position. Bedynek-Stumm was age 67 at the time relevant herein. The other applicant was Janet Josvai, a white female. She was age 59. DOA senior human resources specialist Terry Kraus received their applications/examination materials and notified them of their certification for interview. George Potaracke, BOALTC's executive director, interviewed the candidates on March 26, 2003. David Cauffman, BOALTC's office manager was present at the interviews as an observer and to assist Potaracke in the hiring decision.
Potaracke hired Josvai for the Clerical Assistant 2 position.
In April 2003, Bedynek-Stumm filed a complaint with the Personnel Commission alleging discrimination, retaliation, and illegal action or abuse of discretion under Wis. Stat. § 230.44. However, in July 2003, the Personnel Commission was abolished and authority for determination of his claim under § 230.44 was transferred to the Wisconsin Employment Relations Commission, while authority for determination of his discrimination and retaliation claims was transferred to the Equal Rights Division.
On December 16, 2003, Bedynek-Stumm filed a revised complaint with the ERD alleging that DOA and DHFS violated the WFEA by refusing to hire him because of his race, color, sex, disability, national origin or ancestry, age, by making an inquiry in connection with prospective employment that implies or expresses discrimination because of arrest record, and because he filed a discrimination complaint with the ERD, testified or assisted with a complaint filed with the ERD and opposed discrimination in the workplace.
An equal rights officer for the ERD issued an Initial Determination finding no probable cause to believe the respondents had discriminated against Bedynek-Stumm as alleged by him.
Bedynek-Stumm filed an appeal and requested a hearing, which was ultimately held on January 17, 2006. Except for Bedynek-Stumm's claims of age, sex and arrest record discrimination, the ALJ dismissed Bedynek-Stumm's complaint allegations at the close of his case. The ALJ also dismissed DHFS as a respondent at the close of Bedynek-Stumm's case. In his subsequently issued written decision, the ALJ dismissed Bedynek-Stumm's claims of age, sex and arrest record discrimination as well, finding no probable cause to believe that DOA had violated the WFEA.
On appeal from the ALJ's decision, Bedynek-Stumm argues that he was age 67 when interviewed and not extended the preference given to those under the WISE program. (1) While the WISE program material (Exh. C-10) indicates that preference would be given to those over age 60, there is no indication in this material that such preference was a guarantee that one over age 60 would be hired, nor would it be logical that anyone over age 60 must be hired for a position for which another candidate was better qualified.
Indeed, Potaracke determined that Josvai was the more appropriate candidate for the position because she was seeking to re-enter the work-world after being out of the workplace for 10+ years and wanted to freshen up her clerical skills. Potaracke's written notes on Josvai's interview question form indicate that she was seeking work at BOALTC as a first step toward re-entering the work-world. At the bottom of her form Potaracke wrote, "Seeking to polish clerical skills." Potaracke noted on Bedynek-Stumm's interview question form that he was an educator and referral consultant. At the bottom of his form Potaracke wrote, "Has strong professional background. Clerical support position may not be appropriate."
Further, Bedynek-Stumm argues that the ALJ improperly dismissed DHFS as a party because DHFS administers WISE. However, given Bedynek-Stumm's complete lack of evidence of any involvement by DHFS in the decision not to hire him it is difficult to find error in the ALJ's dismissal of DHFS as a party.
Bedynek-Stumm's primary reason for objecting to DHFS's dismissal as a party is readily apparent, however. He argues that as a recipient of federal funds under Title V of the Older Americans Act (OAA), DHFS is obligated to conform to the U.S. Department of Labor's laws material to the administration and funding under which these Title V funds are granted. Specifically, Bedynek-Stumm cites 20 CFR 641.306, which reads:
(a) As set forth in sections 502(b)(1)(M) and 507(1) of the OAA, enrollment priorities for filling all positions shall be as follows:
(1) Eligible individuals with the greatest economic need;
(2) Eligible individuals who are 60 years old or older; and
(3) Eligible individuals who seek re-enrollment following termination of an unsubsidized job through no fault of their own or due to illness, provided that re-enrollment is sought within one year of termination.
(b) Within all enrollment priorities, those persons with poor employment prospects shall be given preference.
(c) Enrollment priorities established in this section shall apply to all vacant community service positions, but shall not be interpreted to require the termination of any eligible enrollee. The priorities do not apply to the experimental private sector projects authorized by section 502(e) of the OAA.
Bedynek-Stumm argues that he was denied priority as provided under 20 CFR 641.306.
In addition, Bedynek-Stumm argues that as a recipient of federal funding, DHFS is subject to Public Law 107-288 (Title 38 USC), the Jobs for Veterans Act, which provides that "A covered person (e.g., A veteran) is entitled to priority of service under any qualified job training program if the person otherwise meets the eligibility requirements for participation in such program." § 4215(b)(1). Bedynek-Stumm argues that he is a veteran and was denied preference as a veteran under this law.
It is Bedynek-Stumm's contention that his failure to be hired was in violation of these federal laws. However, even assuming for purposes of argument that DHFS was improperly dismissed as a respondent, neither the ERD nor the commission has the authority to adjudicate claims of violations of federal laws. As noted by the court long ago in its reference to former statute § 111.36 of the WFEA (renumbered now as § 111.39): "It is clear in reading sec. 111.36, Stats., that neither DILHR [now DWD] nor the Commission has any subject matter jurisdiction in acting on a complaint charging discrimination that violates the Fair Employment Act to pass on such an issue of whether the hiring process by which the complainant was refused employment violated some statute not included in the Fair Employment Act..." Cooper v. LIRC (Dane Co. Cir. Ct., 10/22/79)(emphasis added). (2)
Bedynek-Stumm has not presented evidence which establishes probable cause to believe that he was discriminated against on the basis of his age. Kraus, who notified Potaracke of Bedynek-Stumm and Josvai's certification for interview, only informed Potaracke that both candidates had listed their ages on their application forms and that each met the minimum requirement of 55 years of age. Kraus did not disclose their exact ages. Potaracke did not draw any conclusions as to whether one was older during the interviews and at no time became aware of the birth date of either prior to his decision to hire Josvai. Also, there was no evidence that Cauffman knew either candidate's exact age.
Bedynek-Stumm argues at great length that Potaracke, while under oath, denied commenting during his interview that he was "overqualified" because he had had "high-powered positions in the past" and denied asking him "any warrants?" and "when did he retire, essentially after employment examiner?" Bedynek-Stumm argues that by denying that he made these comments and asked these questions Potaracke committed perjury. Bedynek-Stumm argues that the ALJ denied him due process of law by preventing him from establishing the five elements of proof set forth in State v. Munz, 198 Wis. 2d 379, 541 N.W.2d 821 (Ct. App. 1995), necessary to convict a person of perjury. (Those elements are: (1) the defendant made a statement under oath; (2) the statement was false; (3) the defendant knew the statement was false when he or she made it; (4) the defendant made the statement in a proceeding before a judge; and (5) the statement was material to the proceeding.) Further, Bedynek-Stumm argues that the fact that the ALJ found his version of what Potaracke stated during the interview to be believable confirms that Potaracke committed perjury.
Bedynek-Stumm's arguments fail to provide a reason for the commission to reach a different result than that reached by the ALJ in this matter. Initially, it must be noted that a claim that a person has committed perjury concerns a criminal matter, and consequently it is a matter over which neither the ERD nor the commission has any authority. (3) Furthermore, Bedynek-Stumm makes too much of Potaracke's denial of stating that he was overqualified because of his past high-powered positions in light of the following written comments that Potaracke placed at the bottom of Bedynek-Stumm's interview form: "Has strong professional background. Clerical support position may not be appropriate." These comments, while not exactly the comments that Bedynek-Stumm attributes to Potaracke, express essentially the same thing about Bedynek-Stumm's qualifications for the job. Bedynek-Stumm states that Potaracke was looking at his resume when Potaracke commented he was overqualified because of his past high-powered positions. Bedynek-Stumm's resume indicates that he possessed a Bachelor of Arts degree, that he had graduate and pre-doctoral studies in instruction, diagnostic evaluation, counseling, and rehabilitative programming, a Master of Science degree in instruction, counseling, and assessment of children and adults with educational/behavioral disabilities, and that he held a "Sixth Year Specialist degree in Administration and Supervision of Educational and Vocational Disabilities Programs and Services." Bedynek-Stumm's "Professional Experience" listed on his resume included employment as an adjunct faculty lecturer, an employment examiner for the U.S. Office of Personnel Management, and it stated that since 1994 he had been an Independent Projects Consultant.
The goal of the WISE program is "to provide participants with the skills, training, and experience necessary to obtain gainful employment." (Exh. C-10). Furthermore, the position's job title itself -- Clerical Assistant 2 -- and the stated job duties for this position clearly establish that the position was clerical in nature. Whether Potaracke did or did not specifically state that Bedynek-Stumm was overqualified because of his past high-powered positions, Potaracke's comments on his interview form essentially indicate the same thing. Further, Bedynek-Stumm's resume itself indicates that because of his extensive professional experience, this made him less appropriate as a candidate for a clerical position meant to provide the individual with the skills, training, and experience necessary to obtain gainful employment.
The evidence supports Potaracke's determination that Josvai was the more appropriate candidate for the Clerical Assistant 2 position. Potaracke's written notes on Josvai's interview question form indicates that she had a Master of Science degree and had worked as a reference librarian and at the State Historical Society, and that she was seeking work at BOALTC as a first step toward re-entering the work-world and to polish her clerical skills. The evidence clearly indicates that Josvai was the more appropriate person for the Clerical Assistant 2 position.
Bedynek-Stumm argues that to state that he was overqualified created "artificial" and "superfluous" impediments to his equal opportunity for employment while favoring Josvai's employment opportunity. However, given Bedynek-Stumm's academic and professional experience, the goal of the WISE program and the nature of the job duties involved in the Clerical Assistant 2 position, Bedynek-Stumm's argument cannot be sustained.
Bedynek-Stumm's claims regarding Potaracke's denial of asking him if he had any warrants and when he retired fail as well. First of all, Potaracke testified that he did not recall whether or not he had asked Bedynek-Stumm when he retired. However, assuming for purposes of argument that he did, this question was of importance for purposes of obtaining information about how long he had been out of the workforce. Again, the goal of the WISE program is to provide participants with skills, training and experience necessary to obtain gainful employment. It is highly likely that the longer a candidate has been out of the workforce, the more likely it was that that candidate had a greater need for the skills, training and experience that the WISE program could provide to assist the candidate to obtain gainful employment. Also, assuming for purposes of argument that Potaracke did ask Bedynek-Stumm if he had any warrants, there is nothing inherent in that question itself that implies or expresses any intent to discriminate against Bedynek-Stumm on the basis of arrest record. Nor is there any evidence which suggests reason to believe that the respondent harbored any bias against Bedynek-Stumm on the basis of arrest record.
Bedynek-Stumm admitted at the hearing that the only evidence he had to support his sex discrimination claim was a staff roster with the names of BOALTC employees. (Exh. C-7). Bedynek-Stumm argues that BOALTC's staff roster bears irrefutable evidence of an overwhelming employment ratio of females to males -- a 3:1 ratio in the central office and a 3.5:1 ratio in the area offices. However, assuming that those ratios are statistically significant, Bedynek-Stumm neither presented evidence regarding the applicant pool necessary to draw a conclusion that the female to male ratios were the result of sex discrimination, nor any evidence to show that DOA had used hiring methods that unfairly drew more female applicants.
The evidence shows that the ALJ properly dismissed Bedynek-Stumm's claims of discrimination on the basis of race, color, disability, national origin and ancestry. There could not have been discrimination against him on the basis of race or color because both he and Josvai are white. Bedynek-Stumm states that he does not have a disability, but claims that he "may have been" perceived as having "a disability". However, Bedynek-Stumm failed to present any evidence to show that anyone involved in the hiring process perceived him as having this unidentified disability. There also could be no finding of national origin or ancestry discrimination, because Bedynek-Stumm presented no evidence to show that anyone involved in the hiring process knew either his or Josvai's national origin or ancestry.
The evidence also shows that the ALJ properly concluded that Bedynek-Stumm did not establish probable cause to believe DOA discriminated against him because he made a complaint under the WFEA, testified or assisted in a proceeding under this law or opposed a discriminatory practice under this law. Indeed, Bedynek-Stumm presented no evidence that prior to 2003 he had filed a complaint against, testified or assisted in a proceeding or opposed a discriminatory practice by BOALTC or DOA. Bedynek-Stumm could only state that he believed he had filed one complaint against DHFS, and apparently that he had testified and/or assisted with another complaint against DHFS, which he did not have information about with him. Moreover, he presented no evidence that anyone involved in the hiring process for the BOALTC Clerical Assistant 2 position either knew of or suspected these past complaints against DHFS.
For all of the above-stated reasons, the commission has affirmed the decision of the administrative law judge.
Attorney Mark Saunders
Attorney Eric J. Wendorff
Appealed to Circuit Court. Affirmed October 10, 2008.
[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]
(1)( Back ) Bedynek-Stumm's appeal includes criticism of WERC's decision on his claim before that agency but LIRC's jurisdiction does not extend to matters before that agency.
(2)( Back ) Bedynek-Stumm has requested that the commission "transfer" this case to the EEOC for enforcement of the OAA and Public Law 107-288 if the commission has no jurisdiction to rule on violations of these laws. However, in addition to the commission's lack of authority to transfer a case to the EEOC, the EEOC's authority does not extend to enforcement of the OAA or Public Law 107-288.
(3)( Back ) Bedynek-Stumm has also requested a transfer of this matter to the EEOC to prosecute an "action for perjury", but the EEOC has no authority for such an action for the same reason the commission does not.