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

GERALD N ENTRINGER, Complainant

LABORERS LOCAL 539, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200104549, EEOC Case No. 26GA200431


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, but modifies his findings and conclusions, without overturning any of his credibility determinations, to read as follows to more completely and accurately reflect the evidence of record:


FINDINGS OF FACT


1. The Respondent, Laborers Local 539 (Local 539), is a labor union representing construction workers in Green Bay, Wisconsin.

2. The Complainant, Gerald N. Entringer (Entringer), whose date of birth is March 15, 1946, is a member of Local 539.

3. In 2000, Craig Umentum, the Business Agent for Local 539, decided that he was going to step down from that position. Umentum began discussing who his replacement should be with the Executive Board and membership of Local 539. No one on the board or in the membership recommended that Entringer be selected.

4. Because of a previous commitment, Entringer, who was President of Local 539 at the time, arrived at the May 2000 meeting of the Executive Board of Local 539 while it was in progress. Prior to Entringer's arrival, Umentum recommended that his successor be selected in the near future so that Umentum would have time to train this person before vacating the position, and asked the board members if any of them had an interest in the position. Joe Heyrman (age 47) and Tony Marcelle (age 39) expressed interest.

5. When Entringer arrived at the May 2000 board meeting, Umentum summarized for him what had been discussed to that point. Entringer did not express interest in the Business Agent position or objection to Heyrman's or Marcelle's candidacy.

6. In June of 2000, the Executive Board voted to recommend to the membership that Heyrman be selected to replace Umentum as Business Agent. The only dissenting vote was Entringer's. Entringer did not indicate to the board the basis for his vote.

7. Later in June of 2000, the membership of Local 539 voted to select Heyrman for the Business Agent position. The only dissenting vote was Entringer's. In June of 2002, Heyrman defeated Entringer in a membership election for a full term as Business Agent.

8. In April of 2001, the Executive Board decided to hire an additional Field Representative, and voted to recommend that Marcelle be selected for this position. Entringer questioned whether hiring an additional Field Representative was necessary, but did not object to the board decision that Marcelle be recommended for this position. Entringer never expressed interest in this position.

9. On April 18, 2001, the membership of Local 539 voted to select Marcelle for the new Field Representative position.

10. On or around May 24, 2001, Entringer asked Umentum why he had not been recommended for the Business Agent or Field Representative positions. Umentum told Entringer that he was aware that Entringer planned to retire at 55 and he didn't believe it would be in Local 539's best interest to select someone who would stay in the positions only a short time, and that Heyrman and Marcelle were generally better qualified. Umentum had actually not recommended Entringer because his personal observations of Entringer and his informal polling of the membership led him to conclude that Entringer did not have the temperament necessary to be successful in these positions. He did not express this to Entringer in order to save Entringer from embarrassment and to prevent a confrontation.

CONCLUSIONS OF LAW


1. The Respondent is a labor organization within the meaning of the Act.

2. The Complainant failed to sustain his burden to prove that his allegation relating to the Business Agent position was timely filed.

3. The Complainant failed to sustain his burden to prove that he was discriminated against on the basis of age as alleged.

DECISION

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

Dated and mailed April 30, 2004
entrige . rmd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission agrees with the administrative law judge that the complainant failed to prove age discrimination.

First of all, the complainant's charge was untimely filed as to the allegation relating to the Business Agent position, as the respondent pointed out in its March 4, 2002, response to the complaint. The relevant hiring decision was a discrete transaction, not subject to application of a continuing violation theory, which occurred more than 300 days prior to the date that the complainant filed his charge, i.e., November 21, 2001, contrary to Wis. Stat. § 111.39(1). See, Lau v. Latec Credit Union, ERD Case No. 200103183 (LIRC Feb. 7, 2003).

As to the Field Representative position, the complainant never expressed interest in this position, even though he had the opportunity to do so. Under the McDonnell Douglas burden-shifting analysis, (1)   the complainant has the initial burden of establishing a prima facie case of disparate treatment. To establish a prima facie case when the subject adverse employment action is a hiring decision, a complainant must prove by a preponderance of the evidence that he applied for an available position, for which he was qualified, but he was rejected under circumstances which give rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981). Entringer never made it known that he was interested in the Field Representative position and, in fact, when the issue came before the Executive Board, which he chaired, he did not mention either his desire to be a candidate or any objection to the decision to recommend Marcelle to the membership. Entringer failed to establish a prima facie case as a result.

If Entringer had succeeded in proving a prima facie case, the burden would then have shifted to Local 539 to articulate some legitimate, nondiscriminatory reason for its hiring decision. Burdine, supra. Local 539 would have satisfied this burden here by explaining that Marcelle was selected, and Entringer was not, because Marcelle expressed interest in the position, and Entringer, even if he had expressed interest, was not as well qualified as Marcelle and was not popular with the membership, many of whom believed that he did not have the right temperament for this job. These reasons are legitimate and non-discriminatory on their face.

Finally, the burden would then have shifted to the complainant to prove by a preponderance of the evidence that the reasons offered by the employer were not its true reasons, but were a pretext for discrimination. The only evidence the complainant presented in this regard was his claim that, during a discussion on May 24, 2001, Umentum told him that Marcelle had been selected because Entringer was too old for the position and because Entringer was getting ready to retire, and, during a union meeting on April 18, 2002, Umentum stated that Entringer was too old to be trained as a Business Agent.

However, Umentum's alleged 2002 comments do not relate to the Field Representative position still under consideration here. Moreover, the administrative law judge apparently did not credit Entringer's testimony that Umentum told him during their 2001 conversation that he was "too old" for the position, and there is no persuasive reason in the record to overturn this credibility determination. The record also supports a conclusion that Umentum referenced Entringer's imminent retirement during this 2001 conversation to protect Entringer from the real reason he wasn't selected, i.e., because many members of the Executive Board and the membership did not believe that Entringer had the temperament for the position. Finally, even if Umentum had made the 2001 comments Entringer attributes to him, the record does not show that the decision to hire Marcelle was Umentum's to make, or that he had any more influence over the Executive Board's recommendation to the membership or the membership's vote than any other board member.

The complainant failed to sustain his burden to prove that he was discriminated against based on his age.

cc: Attorney John J. Brennan


Appealed to Circuit Court.  Appeal dismissed, July 29, 2004.

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Footnotes:

(1)( Back ) McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973).

 


uploaded 2004/05/03