STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JOHN CHRISTOPHERSON, Complainant

ARAMARK UNIFORM SERVICES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199603032, EEOC Case No. 26G961889

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.

DECISION

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed: November 27, 1998
chrisjo.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, a male, employed as a route representative by the respondent, was discharged from his position by the respondent on June 14, 1996. The respondent advised the complainant of his discharge in a letter provided to him on June 14, 1996. The letter stated that there had been numerous conversations with the complainant regarding his low sales over the past 18 months and that he continued to have the lowest route sales average in the entire market center, leaving the respondent with no alternative but to relieve him of his duties. Subsequently, the complainant alleged in a complaint filed with the Equal Rights Division that his termination of employment was because of his age. The complainant was age 55 at the time of his termination of employment.

Following a hearing on the merits of his complaint of discrimination, the administrative law judge issued a decision finding that the complainant had not shown by a preponderance of the evidence that the respondent violated the Act's prohibition against age discrimination when it terminated his employment, and dismissed the complaint. The complainant's petition for commission review followed that decision.

In his petition, the complainant acknowledges that his sales performance lagged behind that of many other route drivers. He contends, however, that it was his age, and not his poor sales performance, that provided the respondent's motivation for his discharge, asserting that other route representatives outside the protected age category at the low end of the sales range were not disciplined, except for David Haase who was subjected to a much less harsh form of discipline (suspension). The complainant argues that the respondent failed to offer a satisfactory explanation as to why Haase would be disciplined so much less harshly, particularly where the younger worker's discipline established something of a precedent as to how the respondent would employ disciplinary measures in order to spur route representatives to produce more sales. Further, the complainant argues that the ALJ's decision ignores substantial evidence strongly suggestive of a deliberate effort on the part of the respondent to move toward a younger workforce, asserting that he was replaced by a much younger employe, that the evidence showed that the respondent's pattern of hiring immediately following his discharge betrayed a pattern of hiring only persons under the age of 40 for route service positions, and that the respondent had hired only one employe in the protected age category in the recent past.

The record fails to support the complainant's claim that the respondent's decision to terminate his employment was motivated by his age. The record shows, as noted by the respondent, that the respondent did not discharge the complainant for an occasional period of low performance. Rather, it discharged him because of continued substandard sales performance over an 18 month period, despite numerous warnings from his superiors, and because he did not demonstrate an effort to improve. The complainant failed to show that the respondent retained any route representative that performed as poorly as he did for as long as he did and after as many warnings as he had received. As for the respondent's disciplinary measures taken with respect to Haase for poor sales performance, the record shows that respondent did not have an established progressive disciplinary policy in which suspension was required prior to discharge. Further, the record indicates, as found by the ALJ at par. 21 of the findings, that Scott Fish's decision to suspend Haase was based on Fish's perception that a suspension would make a positive impact on his sales efforts. Testimony by Fish showed that in deciding to suspend Haase he noted that Haase had performed in route sales in the past, and that he had engaged in sales activity (e.g., turned in prospect memos, cold call sheets, asked for sales literature for new prospects) to generate sales every day during the weeks audited prior to his suspension. In contrast, when reviewing the complainant's past history, Fish noted that the complainant had always had the lowest sales average at the Portage depot, and more often than not had the lowest route sales average in the entire market center. Further, Fish, who stated that he was in constant contact with the management team throughout the audit period, testified that he inquired about the complainant's sales activity during the audit period prior to his discharge and received negative responses to inquiries about his having turned in prospect memos, turned in cold call sheets and having requested sales literature for new prospects. As for the other route representatives outside the protected age group at the "low end of the sales range" that were not disciplined, the record indicates that this involved new hirees, whom the respondent granted more leeway during their first 18 months of employment. The respondent was more concerned that employes obtained sufficient training tools and experience during their first 18 months of employment.

The record fails to establish the complainant's argument that there was substantial evidence suggestive of a deliberate effort by the respondent to move to a younger workforce. While the complainant's replacement, Bill Austin, was younger than the complainant (his date of birth is August 16, 1961), the evidence shows that Austin had worked for the respondent as a route representative since February 1991, and that when the position vacated by the complainant became open Austin expressed an interest in moving from his then current route position to the route vacated by the complainant. And true, there was evidence which showed that since June 1996, the respondent had hired 19 new employes who were under age 40. This hiring data fails to assist the complainant establish a case of age discrimination, however. No legal significance can be obtained from this data because the complainant failed to present any information about the actual pool of applicants that the respondent hired from. Fish testified that he did not have any information as to the ages of the individuals who had applied for these positions. He testified that the respondent's hiring procedure was to place an advertisement describing the job qualifications for a route representative in the local newspaper, and to post the job vacancy in the lunch room and on the employe information board. He testified that applicant resumes were received and that from these applicants were selected for interview. He testified that the respondent's applications did not contain an area to put one's age, nor had he seen anyone's age on any resume he had reviewed.

The complainant's further arguments which he set forth in a posthearing brief to the ALJ, and which he incorporates as part of his petition for review, have also been considered. Included among those arguments, was that the respondent's stated reason for his discharge was pretextual because sales work was only a small part of the route representative's duties, because the complainant had received a 3 percent raise in January 1996, notwithstanding the respondent's alleged dissatisfaction with his work, and because approximately 9 to 12 months prior to his discharge one of his superiors, Jeff Huston, had commented to him, "Maybe you're getting a little too old to do this job." These arguments also fail. The record shows, as found by the ALJ, that although sales activities took up a small part of the route sales representatives' work-days, Fish and the Portage depot leadership considered these activities to be important, and communicated this to all route representatives. While the complainant equates his January 1996 raise with evidence that the respondent was sufficiently satisfied with his performance at that point, the record does not support that assertion. The complainant presented no evidence that his raise was based on merit or was anything other than a cost of living increase. The complainant himself admitted that in December 1995, Huston had told him to, "get more sales." Finally, as noted by the respondent, the record shows that Huston's remark was made when he and complainant were discussing the physical demands of the route representative job and the complainant mentioned that a year-old shoulder injury was still bothering him. Moreover, the remark does not advance an inference of age discrimination because Fish, not Huston, made the decision to discharge the complainant, and, the complainant did not show that Fish was even aware of Huston's remark, much less impacted by it in the decision-making process.

Based upon the above-stated reasons, the commission has affirmed the decision of the administrative law judge.

cc: Gard Strother
James K. Ruhly

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