LEROY A. JACOBS, Complainant


ERD Case No. 8952129, EEOC Case No. 26G900494

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision dismissing the Complainant's complaint of alleged age discrimination in the above-captioned matter on September 30, 1991. Complainant filed a timely petition for commission review, and both parties subsequently submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the Administrative Law Judge is set aside and the matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed November 25, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


This case involves a claim by Complainant that the Respondent failed to hire him as a sales manager in early 1989 because of his age. (1)   There was an Initial Determination finding probable cause to believe there had been age discrimination in regard to hire and, after an unsuccessful attempt at conciliation, the case was noticed for hearing.

Complainant subsequently commenced discovery, serving Respondent with his First Set of Interrogatories and First Set of Requests for Production of Documents. A letter by Complainant's counsel dated April 25, 1991, indicates that Complainant was also seeking to depose a number of individuals, including one Michael F. Moran. Prior to the scheduled hearing date, Respondent filed a motion for summary judgment pursuant to sec. 802.08(2), Stats., and requested that all discovery be stayed pending a decision on Respondent's motion for summary judgment. Thereafter, the ALJ ordered, among other things, that Respondent submit an affidavit in support of its motion for summary judgment, and that discovery be stayed except for the production of documents which the Respondent had previously agreed to produce.

Concluding that the Complainant "has failed to show, and cannot show, that he was qualified for the position of sales manager. . .", the ALJ granted Respondent's motion for summary judgment and issued an order dismissing Complainant's complaint. In reaching this conclusion, the ALJ held that Complainant was not qualified because state and federal laws (sec. 125.69, Stats., and 27 C.F.R., S 6.21) prohibit a liquor manufacturer from acquiring or holding any interest in a retail liquor establishment and because the courts (citing cases) have routinely held that the failure to meet statutory or regulatory criteria for a position renders an individual unqualified, so as to defeat a prima facie case of discrimination.

A motion for summary judgment as provided under sec. 802.08(2), Stats., asks the trial court to determine if any fact issues exist to be tried and, if not, to decide the case on its merits. Wisconsin Environmental Decade v. Public Service Commission, 79 Wis. 2d 161, 171, 255 N.W.2d 917 (1977). Under this procedure, evidentiary matters and affidavits accompanying the motion are deemed uncontroverted when competing evidentiary facts are not set forth in counter-affidavits. Jones v. Sears-Roebuck and Company, 80 Wis. 2d 321, 326, 259 N.W.2d 70 (1977). The Commission has previously held that no authority exists under the Administrative Procedure Act, the Wisconsin Fair Employment Act or the Equal Rights Division's rules to entertain motions for summary judgment of the kind authorized, in actions and proceedings in court, by sec. 802.02(2), Stats.; that there is no procedure whereby a respondent, merely by filing a motion and supporting affidavit which disputes material facts alleged by a complainant, can somehow force the complainant to file responsive affidavits or risk having the case dismissed on the version of the facts advanced by the respondent. Betty Alvey v. Briggs & Stratton, (LIRC, 11/27/91). See also, Robert Olson v. Lilly Research Laboratories, (LIRC, 6/25/92).

In Alvey and Olson, however, the Commission noted that in appropriate circumstances, an ALJ may dismiss a complaint prior to hearing where it appears that even if what is claimed by complainant is true, there would be no violation of the Act as a matter of law. Making such a determination involves simply looking at what the complainant asserts he or she will prove. This can be accomplished by looking at what the complaint alleges, and to any other assertions of the complainant which provide an indication of the nature of the claim. Alvey, supra.

The following represents the Complainant's assertions regarding the nature of his claim. Complainant was born on December 15, 1930. He was employed by the Respondent (a manufacturer of beverage alcohol products) from January 1977 until January 1987, when his employment was terminated due to a workforce reduction. At the time of his termination of employment, Complainant was the sales manager for the state of Wisconsin. In late 1988, Complainant was alerted to the fact that Respondent was seeking to fill the position of sales manager for the state of Wisconsin. He sent Respondent letters dated October 6, 1988, November 13, 1988 and January 8, 1989, expressing his wish to be considered for this position. Respondent never responded to Complainant's letters until after Complainant had sent his January 1989 letter a second time by way of certified letter. (It appears that the certified letter was delivered to Mike Moran of Respondent.) Complainant and Moran then had numerous telephone conversations regarding the position of sales manager. Complainant advised Moran that subsequent to the termination of his employment with Respondent he had acquired an interest in a tavern. During one of these conversations, Moran inquired about Complainant's ownership of a retail liquor establishment as preventing Respondent from hiring him. Complainant knew that the law prohibited him from having an interest in the tavern if he were to be hired by Respondent as a liquor sales manager and therefore advised Morn that he would be able to sell and otherwise convey his interest in the tavern within 30 days in the event Respondent offered him the position of sales manager. Complainant further advised Moran that there were two different parties interested in purchasing his tavern at the time. Respondent did not offer Complainant the position upon the condition that he sell or otherwise convey his interest in the tavern, but if such offer had been made Complainant would have sold or otherwise conveyed his interest in the tavern. After the telephone conversation with Moran regarding the tavern, Complainant was congratulated by an alcohol distributor for going back to work for Respondent, and told by such distributor that Respondent had advised it that Complainant would be coming back to work for Respondent. Complainant was not hired by Respondent for the position of sales manager for the state of Wisconsin. Instead, in April 1989, Respondent hired another individual who was 41 years of age.

On appeal, Complainant disputes that his tavern ownership was the reason he was not hired by Respondent, because he had advised Moran he could sell the tavern within 30 days and had two prospective buyers interested in the tavern. Complainant argues that because no offer of employment was extended to him upon the condition that he divest his tavern ownership gives rise to a reasonable inference that his tavern ownership was not the reason Respondent refused to hire him. Further, Complainant distinguishes this case from those relied on by the ALJ in dismissing his complaint because those cases all involved immutable qualifications of education or experience found lacking by the plaintiffs, whereas Complainant had all the necessary qualifications for the sales manager position having held it just two years earlier. Complainant asserts that although prohibited by law from undertaking the responsibility of the position until he sold his interest in the tavern, he easily could have and would have divested himself from this ownership interest. Complainant analogizes his situation to those common in the labor market whereby a qualification for a particular position may require that an applicant move, establish residency, quit an existing job, or even get a haircut. He asserts that under the ALJ's reasoning, no person would be qualified for a position, and therefore be able to establish a prima facie case of discrimination, if an employer refused to hire the person because they were already working, or if they lived in the wrong city, or did not have proper residence, or their hair was too long at the time of their application, even if they could fulfill such condition in the event the position was offered by the employer.

Accepting as true Complainant's assertion that he could and would have sold his interest in the tavern within 30 days if offered the sales manager position, together with his assertion regarding Moran's alleged public comment indicating that Complainant would be hired by Respondent after a discussion involving Complainant's ownership interest in a tavern, suggests that Complainant's tavern ownership was not a reason for Complainant's non-hire. This, along with the fact that Complainant was otherwise qualified for the sales manager position, in view of his prior employment in such position, and the fact that Respondent hired an individual 41 years of age for the position, creates an inference of age discrimination and requires Respondent to rebut such inference in order to avoid a finding in favor of Complainant. At this stage of the case it cannot be held that there was no violation of the Act as a matter of law. Accordingly, this case has been remanded for further proceedings.


Michael A. I. Whitcomb
E. Vanessa Jones

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(1)( Back ) Complainant's additional claim that Respondent had previously discharged him because of his age was decided by means of a Preliminary Determination (Ind 88.03). Respondent raised an issue as to the timeliness of this charge. The Preliminary Determination found the discharge claim to be untimely. Complainant did not appeal this determination.


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