Wis.LIRC ER Decision: Bedynek-Stumm, Allen - May 23, 2002 - Age discrimination - no reasonable ground for belief that respondent refused to hire complainant for position as Geriatric Services Clinical Specialist, because of his age - complainant's application did not demonstrate to respondent that he had necessary qualifications

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.

Allen Bedynek-Stumm petitions for a review of the ALJ's decision dismissing his complaint of discrimination. The ALJ found that Bedynek-Stumm failed to establish probable cause to believe that the respondent discriminated against him on the basis of age, race or sex when it did not hire him in 1999 for the position of Geriatric Services Clinical Specialist or Community Support Specialist II. Bedynek-Stumm had withdrawn, at the start of the hearing, his appeal of the Initial Determination's findings that there was no probable cause to believe the respondent had discriminated against him on the basis of race or sex. (Bedynek-Stumm, who is a white male, acknowledged that both of the individuals hired for these positions are white males.) The only issue presented is whether Bedynek-Stumm, whose date of birth is April 17, 1935, has established a reasonable ground for belief that the respondent failed to hire him because of his age.

The commission finds that Bedynek-Stumm has not established a reasonable ground for belief that the respondent refused to hire him because of his age.

The Geriatric Services Clinical Specialist position entailed providing clinical mental health services to older adults and their support systems, such as families or other service providers. Included among the essential qualifications was a requirement that the person be licensed in the state of Wisconsin as a Certified Independent Clinical Social Worker or a Professional Counselor or possess a Master's Degree in a related mental health field plus 3,000 hours of supervised clinical experience. Patricia Anderson, Program Coordinator with the Mobile Outreach to Seniors Team at the respondent, had the ultimate responsibility for hiring a person for this position.

In his petition for review Bedynek-Stumm apparently argues that with respect to the Geriatric Services Clinical Specialist position, his certification as a "Counseling Specialist" by the U.S. Government qualified him as a "Professional Counselor." He apparently also argues that he met the qualifications for this position by virtue of his Master of Science Degree, where his major field of study was Learning Disabilities and Diagnostic Evaluation, and because he had some 47 undergraduate and graduate credits in psychology. Further, as evidence that he was discriminated against, Bedynek-Stumm argues that he was never considered for employment because he "initiated enumerable contacts" with the respondent before receiving any acknowledgement as to the status of his candidacy, and because no disqualification criteria were contained in the June 10, 1999 letter of non-hire that he did receive from the respondent.

Bedynek-Stumm's arguments fail. Bedynek-Stumm was considered for employment with the respondent. Anderson testified that a review of Bedynek- Stumm's application did not show that he was certified as an Independent Clinical Social Worker, it did not indicate that he had 3,000 hours of supervised clinical experience, that it was not apparent from his application that he had counseling experience to any extent, let alone counseling experience with the geriatric population, and that it was not clear from his application whether he had any professional experience working specifically with older adults or whether he was aware of the related service systems and providers for older adults. Further, the evidence indicates that Bedynek-Stumm was not immediately notified of the status of his candidacy because Anderson mistakenly thought the Personnel Department was advising applicants as to the status of their candidacy. When advised by an individual in Personnel that Bedynek-Stumm was inquiring as to the status of his candidacy Anderson sent Bedynek-Stumm the letter dated June 10, 1999. Also, Anderson's letter did advise Bedynek-Stumm as to why he was disqualified. Anderson's letter informed him that it was felt that he did not have enough direct experience with the elderly and that it was critical that the individual hired for this position have direct experience with the elderly population.

The job announcement for the position of Community Support Specialist II listed as requirements, a MA/MS degree in a mental health related field, or a bachelor's degree if there is exceptional proven experience working effectively with diverse cultural client groups. The primary duties of the Community Support Specialist II included assisting clients in their rehabilitation efforts, providing and coordinating clinical services, providing cultural/clinical direction and consultation to staff of other services, such as group homes, and assisting in general program activities. Edward Stoll, Project Coordinator II for the respondent, had the ultimate responsibility for hiring a person for the Community Support Specialist II position.

In his petition for review, Bedynek-Stumm argues that Stoll's extension of the deadline for submitting applications for the Community Support Specialist position was prejudicial and constituted a discriminatory disadvantage for him because of his age. Specifically, Bedynek-Stumm claims that Stoll extended the deadline to permit Adam Watkins, a younger acquaintance of Stoll's not in the protected class, to apply after the original August 13, 1999 deadline. Stoll admits that he knew Watkins because Watkins was previously an intern in the respondent's community support program. However, there was absolutely no evidence to support a showing that Stoll extended the application deadline so that Watkins could apply. The respondent posted a second job announcement for the Community Support Specialist position on August 13, 1999, which stated that applications had to be received by August 27, 1999. On August 27, 1999, the respondent received a faxed application from Watkins dated August 26, 1999. Stoll testified that he received a call from Watkins on August 27 (1 ) indicating that he missed the Madison area and inquiring if there were any jobs in the area that he would be qualified for.

Bedynek-Stumm argues that his application, as evidenced by his administrative and supervisory experiences involving budgets, showed that he had the "ability to bill Medical Assistance" as delineated on the respondent's job description for the Community Support Specialist II position. Bedynek-Stumm argues that the application of Watkins, the successful applicant, does not show that Watkins had the "ability to bill Medical Assistance." Bedynek-Stumm is referencing the job description requirement that the person have a "Masters Degree in related field, with ability to bill Medical Assistance (minimum of 3000 hours clinical experience working with persons with severe mental illness, or 1500 hours working within a CSP)." Bedynek-Stumm misconstrues what is meant by "ability to bill Medical Assistance." What this means is that in order for the respondent to be able to bill medical assistance under its community support program, staff must possess a master's degree in a related field with the requisite number of clinical experience hours working with persons with severe mental illness. This is a requirement made necessary by the licensing agency that oversees the respondent. In Stoll's experience, the only master's degrees that the licensing agency had never questioned were in social work or rehabilitation psychology. Watkins met this requirement by virtue of his master's degree in social work. Further, by reviewing Watkins' application Stoll could also determine that Watkins met the required number of clinical experience hours worked. Bedynek-Stumm's master's degrees were in learning disabilities and diagnostic evaluations. Stoll was not aware of any person ever being certified to work with master's degrees in learning disabilities and diagnostic evaluations.

Bedynek-Stumm also notes, however, that the job description alternatively describes qualifying criteria involving possession of a bachelor's degree. Bedynek- Stumm's application showed that he had a Bachelor of Arts degree with major academic studies in sociology, psychology, education and foreign language. It also showed graduate course work in "Rehabilitation Psychology (Behavioral/Psychological)." The job description referenced by Bedynek-Stumm included, in part, the following requirements:

"Bachelor's degree in related field plus experience & training which demonstrates high competence in working cross-culturally and having connections to communities/cultures in Dane County which have resources and attributes needed by the CSP's current/potential clientele and/or experience with vocational services from the perspective of provider or consumer including: assessment, job development, placement and job support

and

. . .
Demonstrated ability to provide case management services to people who have severe and persistent mental illnesses."

Stoll acknowledged that a combination of a bachelor's degree, in either social work or rehabilitation psychology, and a high level of directly related experience would also meet the licensing agency's requirements. (2 ) However, Stoll testified that he could not determine from Bedynek-Stumm's application that he had ever worked specifically with persons with an Axis I diagnosis of mental illness in a community setting; that Bedynek- Stumm's work experience was dissimilar from what the respondent needed in a community support program.

Finally, Bedynek-Stumm apparently finds it significant that Stoll's letter sent to him regarding his non-hire does not list any reasons for his disqualification. Stoll testified that he did not give any reason because he did not find it necessary to do so. Stoll's failure to provide a specific reason for Bedynek-Stumm's disqualification in the letter to him without more is insufficient reason to believe that he was the victim of unlawful age discrimination.

(1)( Back ) Stoll most likely received the call from Watkins on August 26, 1999, since Watkins' application is dated August 26, 1999.

(2)( Back ) Stoll noted, however, that this would not permit the respondent to bill medical assistance at the master's degree level.