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

FRANK R. MONFRE, Complainant

HARNISCHFEGER CORP, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199350257, EEOC Case No. 260930230

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:

The first sentence in paragraph 20 of the FINDINGS OF FACT is deleted and the sentence, "Monfre was 59 years old in September of 1992." is substituted therefor.

DECISION

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

Dated and mailed: November 26, 1997
monfrfr.rmd : 125 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, Frank Monfre, was hired by the respondent in June 1990 to work as the material control manager for the repair parts area of the mining division department. He came to the respondent with many years of experience as a material control manager. Monfre was age 57 at the time of his hire. Sometime during the summer of 1992, Monfre learned that the respondent was going to fill the vacant position of director of materials and asked to be considered for this position. This was a new position created by Jeffry Bust, vice president of the mining equipment division, which combined the purchasing and materials functions in the manufacturing area of the mining equipment division during a period of downsizing and reorganization of salaried staff. The respondent hired Elizabeth Lynch as the director of materials. She was 45 years of age at the time of her hire.

The respondent had not actively sought to fill the director of materials position until Bust was contacted by Lynch about obtaining employment with the respondent. The respondent desired an individual with a strong purchasing background and who would be a strong advocate for implementing the new computer systems project underway, called the DCS system, that was designed to integrate various material control functions including inventory control and distribution forecasting, and that was capable of interfacing with the division's computerized manufacturing system. Bust knew Lynch as they had gone to graduate school together, subsequently worked together for the same employer and had since continued to stay in contact. Bust was aware that Lynch had an undergraduate and a master's degree in business, a strong background in purchasing and materials management and that she had worked as a strategic planner and project manager for other companies such as Hughes Aircraft.

In September 1992, the respondent terminated Monfre's employment during a reduction in force. His termination came about during the same time frame as the downsizing of the mining division salaried staff at the point when the respondent was finishing up with the DCS project. Bust had made the decision to combine the duties of Monfre's material control position with those of Kathleen Pelto, age 28, who had been the system supervisor for the DCS project. Bust decided to retain Pelto rather than Monfre for this new position because he viewed Pelto capable of performing the material control management functions of the position as a result of her work implementing the DCS project computer software, because she had a very good knowledge of the DCS system and its functions, because of her commitment to this new system and efforts to make it work, and because he felt she would maintain and enhance the DCS software in the future.

Monfre filed a complaint alleging age discrimination in January 1993. Following a probable cause hearing the ALJ determined that there was no probable cause to believe that the respondent had discriminated against Monfre on the basis of his age with respect to promotion to the position of director of materials or the termination of his employment and dismissed his complaint. The commission agrees with the ALJ's decision.

On appeal Monfre asserts that he has presented credible evidence sufficient to support a finding of probable cause to believe that the respondent discriminated against him with respect to promotion and termination of employment because of his age. First of all, Monfre has asserted that after learning about the director of materials position his supervisor, Mark Hardwick, and Bruce Rockenfield, then director of human resources, made age related comments to him. Monfre asserted that Hardwick stated that he was qualified for the director of materials position but that Hardwick and Rockenfield believed that he would not be interested in assuming additional responsibilities at this stage in his career. Monfre asserts that subsequently, Hardwick twice asked how long he planned on working, and that later when talking to Rockenfield, he was asked by Rockenfield why he wasn't like Jesse Bowman, who comes in, does a reasonably good job and is somewhat biding his time in his current position until retirement. However, Hardwick could not recall at all having expressed the belief attributed to him by Monfre about assuming additional responsibilities given where he was in his career path, nor could he recall discussing Monfre's commitment to staying with the respondent. Rockenfield testified that the comment attributed to him about Jesse Bowman came as a real surprise to him at the hearing and that he had absolutely not made such a statement. As noted by the respondent, the issue here boils down to an issue of credibility. It is extremely hard to believe that Hardwick, who had hired Monfre at age 57 and had given him good performance reviews would make these statements. Further, it is unlikely that Rockenfield, who had been a human resource professional for 22 years, would have made such a comment, especially since the alleged statement by him had purportedly come after Lynch had already been offered the position. The ALJ obviously resolved the credibility issue in favor of the respondent's witnesses.

Further, with respect to promotion to the position of director of materials, Monfre contends that while the respondent asserts that Lynch was chosen because she had a stronger background in purchasing, Lynch's resume does not reference any particular purchasing background while he, on the other hand, had managed purchasing in his previous employment at Nordberg, Inc. Contrary to Monfre's contention, Lynch's resume does indicate that she had a very strong background in purchasing. While at Hughes Aircraft, one position she held there was business operations manager with overall responsibility for contract cost and control, and overseeing the estimating process, proposal development and contract administration. While at Honeywell, Inc., in the Undersea Systems Division, Lynch managed the international program from proposal phase through the performance of contract. When employed at the FMC Corporation as the materials program manager, Lynch negotiated contract proposals and modifications.

Monfre further argues that while the respondent has cited the fact that Lynch had a college degree while he did not, the job announcement for the material control manager position, which the respondent had hired him for, had also called for a college degree but had not prevented his hire. This argument fails to establish any evidence of age discrimination, however. Unlike the material control manager position, the director of materials position was a high level executive position with far greater responsibilities.

Next, Monfre argues that based on his performance reviews at the respondent and prior experience in material control, his qualifications exceeded those of Pelto for the material control manager position. However, the evidence shows, as found by the ALJ, that as a result of the implementation of the computer software designed by the DCS project, the materials control manager in the repair parts area would be expected to utilize, maintain and enhance the DCS software in the future. And, overall, Bust decided that Harnischfeger would be better served by retaining Pelto rather than Monfre because Bust considered Pelto's superior computer skills and knowledge of the DCS project software to be more valuable than Monfre's many years of experience as a materials control manager.

Finally, Monfre argues that the respondent's testimony was "filled" with inconsistencies and contradicted its own written response to his complaint, which demonstrates that the respondent's proffered reasons for its actions are simply not to be believed. First, Monfre compares the respondent's response statement that his layoff was due solely to seniority and budgetary constraints, with testimony by Bust that seniority did not play any part in his decision to lay him off, and testimony by Mark Hardwick that Hardwick was not aware of a company policy asking or preferring their managers to look at seniority and that he had not done reductions in force by seniority. Secondly, Monfre compares the respondent's response statement that when Lynch was hired it was not conducting any kind of search for a director of materials and no other candidates had been considered, with Bust's testimony that besides Lynch he "believ(ed) (he) interviewed a fellow named Dean Krueger and also Frank Monfre," and that he considered Monfre to be a candidate for the position along with two other internal candidates. These arguments also fail to establish any reason to believe that Monfre had been discriminated against because of his age. Rockenfield testified that in reviewing the decision to retain Pelto versus Monfre, that he had looked at their relative seniority. Further, as explained by Rockenfield, there had been no external search for candidates to fill the director of materials position, while the respondent had given consideration to some internal candidates. With respect to Bust's testimony about interviewing internal candidates, Rockenfield testified that Bust had not been with the company for some time and that to the best of his knowledge there had been no formal interviews of internal candidates.

cc: CAROLYN H. DELERY
DEBORAH J. BUNDY FERRY

Appealed to Circuit Court.  Affirmed June 3, 1998.

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