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

RONALD L. CLUSSMAN, Complainant

WAL-MART DISCOUNT CITIES, Respondent A

WAL-MART INC, Respondent B

FAIR EMPLOYMENT DECISION
ERD Case No. 199701276, EEOC Case No. 26G971244

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, except that it makes the following modification:

In the second line of paragraph 3 of the CONCLUSIONS OF LAW, the word "age" is deleted and the word "disability" is substituted therefor.

This modification has been made because it appears that the ALJ inadvertently inserted the word age.

DECISION

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

Dated and mailed: January 28, 1999
clussro.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, Ronald Clussman, has cerebral palsy. As a result, he has limited use of his right arm, weakness in his right leg, and walks with a limp. Clussman was hired by the respondent as part of the new workforce for the respondent's store in Stevens Point, Wisconsin. The store opened in June 1992. Clussman was working in the position of people-greeter when he sought promotion to the sporting goods and automotive department manager position that was posted sometime in January 1997. Clussman alleged that the respondent discriminated against him on the basis of disability when it failed to promote him to the position of department manager of the sporting goods and automotive department. The ALJ dismissed Clussman's complaint of discrimination and Clussman filed an appeal from that decision.

The job responsibilities of a department manager included, among other things, setting up the department, displaying store merchandise, use of a Telxen for ordering and price-changing merchandise, planning ahead for sales, supervising associates and responsibility for the department's profitability. The sporting goods and automotive department was one of the toughest departments to run because of frequent changes in seasonal merchandise and had not run smoothly since the store opened.

Clussman was the only individual that signed the posting for the sporting and automotive goods department manager position. Pat Dewar, the store manager, did not interview Clussman for the position. Dewar had been the store manager since April 1993. Dewar consulted with his assistant managers, Cindy Jensen and Mike Palek, and determined that Ken Wilderman, department manager of paints and hardware, would be asked to take a lateral transfer to the sporting and automotive goods department. Wilderman accepted. Wilderman had been the department manager of paints and hardware for about three years, and before that he had been in a team leader position which had similar responsibilities to that of a department manager. Prior to employment with the respondent, Wilderman had been an inventory control specialist for an automotive recycling business, an industrial engineer and a department manager at J. C. Penney for six years.

Clussman claims that he was discriminated against when not promoted because he knew no one else in the store was interested in the sporting and automotive goods position. The record fails to support a showing that Clussman was not promoted because of his disability. The evidence shows that when filling job positions the respondent did not limit itself to individuals who had posted for job openings, and that it did not always give interviews to those who had posted for a job. The evidence shows that the respondent was seeking someone with the experience level who could step in and handle the responsibilities of the sporting and automotive goods position.

Clussman's job responsibilities as a people-greeter had included greeting customers, handing out shopping carts, helping customers find things, cleaning windows, making sure the floor was safe and clean, and shoveling snow.

Clussman conceded that he had no information which made him believe that Dewar discriminated against him because of his disability other than his own personal feeling. Further, Clussman conceded at the hearing that he had never done any ordering of products at the respondent, planning for future sales of merchandise or supervising of employes.

On appeal, although conceding that he had not done any ordering of merchandise, planning ahead for sale of merchandise and supervising of Wal-Mart's employes, Clussman argues that many of his duties as people-greeter were the same as those of a department manager, such as cleaning, stocking, selling and displaying merchandise. Clussman also apparently argues that prior to the store's opening, he had ordered products, "trained" employes, "supervised employes by leaving notes or telling them what needed to be finished" and used the Telxen to scan merchandise. Further, he argues that for a period of time after the store opened he test scanned products, did price verification and made price changes. These assertions fail to demonstrate that this work made Clussman a qualified candidate for the sporting and automotive department position, or that the respondent failed to promote him to this position because of his disability, however.

Clussman also argues that Dewar could have given him the position of department manager of the paint and hardware department Wilderman vacated, or the position of department manager of another department which subsequently opened up a month later. Clussman asserts that this subsequent position was allegedly given to an employe with little experience or time working for the respondent. The record shows that the paint and hardware department manager position was given to an individual working as the customer service manager and in charge of the service desk, the cashiers and layaway. Clussman had not posted for this position. There was no evidence which indicated that Clussman was not promoted to this position because of his disability. Clussman had also not posted for the department manager position which opened in February. The qualifications, or lack thereof, of the person hired for the opening in February were not made known at the hearing. Clussman presented no evidence which showed reason to believe that he was discriminated against on the basis of disability because he was not given this position.

Finally, Clussman argues that just because he may "look like" he could not do something does not mean that he could not do it. In his reply brief, Clussman argues that had Dewar interviewed him Dewar would have learned that he owned two small businesses, a seasonal popcorn stand and a game arcade, which was good background for running any department at Wal-Mart. While this certainly may constitute evidence of Clussman's ability to be a department manager, the record still fails to establish that the respondent discriminated against him on the basis of a perceived disability. Although perhaps not the best personnel practice, the respondent did not always interview individuals who had posted for job vacancies. The evidence shows, as found by the ALJ, that Dewar's "decision to look beyond Mr. Clussman to fill the position was based on his perception of the demands of the job (sporting and automotive dept. mgr.) and Mr. Clussman's qualifications, without regard to his perception that Mr. Clussman had a disability." (par. 17 of findings) There was no evidence whatsoever which showed that Clussman was perceived as being unable to perform the job of sporting and automotive goods department manager, or any other department manager position, because of his disability.

cc: Emery K. Harlan

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