ANGELA BLOHM, Complainant
HOLIDAY INNS, INC, Respondent A
HOLIDAY INN OF MILWAUKEE - SOUTH AIRPORT, Respondent B
HOLIDAY INN OF MILWAUKEE - WEST, Respondent C
An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on April 11, 1989. The ALJ concluded that the Complainant's complaint was untimely as to one charge of age discrimination with respect to failure to be promoted and that there was not probable cause to believe that she had been discriminated against on the basis of age in regard to failure to be promoted to three other positions, but that there was probable cause to believe that her failure to be promoted to a fifth position was due to age discrimination. Accordingly, the ALJ dismissed the Complainant's complaint as to four allegations of age discrimination with respect to failure to be promoted and remanded a fifth charge of promotion discrimination for efforts of conciliation.
The Complainant subsequently filed a timely petition for Commission review with respect to the four instances of alleged age discrimination that were dismissed by the ALJ. The Respondent filed a petition for Commission review with respect to the ALJ's probable cause finding but has been advised that the Commission has no jurisdiction as to that matter.
Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:
That the decision of the Administrative Law Judge (copy attached) is modified as follows:
1. In paragraph number 3 of the FINDINGS OF FACT, the second sentence is deleted.
2. In paragraph number 4 of the FINDINGS OF FACT, delete the second sentence and insert the following sentences therefor:
"Donovan concluded that the Canplainant lacked sufficient qualifications, particularly technical skills in the kitchen and the requisite supervisory experience. Donovan hired Bob Betzig, D.O.B. January 1, 1952, for the position. Betzig had been either the director or manager of food and beverage departments at several prestigious country clubs and resorts for about 11 years. He also possessed 87 credits toward associate degrees in accounting and marketing. Betzig had not previously worked at a Holiday Inn Hotel, but Donovan viewed Betzig's qualifications as the best that he had seen."
3. In paragraph 5 of the FINDINGS OF FACT, delete the first and second sentences and substitute the following sentence therefor:
"After Tim Donovan concluded that Angela Blohm was not qualified for the position of Food and Beverage Director which she applied for in 1984, an attempt was made by Donovan to set up training which would prepare Blohm for a first line supervisory position such as Assistant Food and Beverage Director."
4. In paragraph 5 of the FINDINGS OF FACT, the name "Joe" appearing in the last sentence of that paragraph is deleted and the name "Jill" substituted therefor.
5. In paragraph 10 of the FINDINGS OF FACT, the last sentence is deleted and the following substituted therefor:
"Further, in terms of experience Keller was already serving as the Food and Beverage Director at Holiday Inn-South where she had been located for about 12-2 years. Prior to that, beginning in 1981 she had been the Food and Beverage Manager at Holiday Inn-Northeast in Milwaukee."
6. In paragraph 18 of the FINDINGS OF FACT, line 6, the word "in" is deleted and the word "and" is substituted therefor.
7. In paragraph 19 of the FINDINGS OF FACT, line 3, the word "pervious" is deleted and the word "previous" is substituted therefor.
8. In paragraph 21 of the FINDINGS OF FACT, in line 2 the phrase "30 years old" is deleted and the phrase "in his mid 20s" is substituted therefor; in line 3 the word "meet" is deleted and the word "met" is substituted therefor; and in line 6 the word "range" is deleted and the word "ranging" substituted therefor.
9. In paragraph 22 of the FINDINGS OF FACT, in line 6 the phrase "approximately thirty" is deleted and the phrase "in his mid 20s" is substituted therefor, and in line 7 the surname "Jesion" is deleted and the surname "Jession" is substituted therefor.
10. Paragraph 2 of the ALJ's CONCLUSIONS OF LAW is deleted.
As modified, the ALJ's decision is affirmed and shall stand as the FINAL ORDER herein. (1)
Dated and mailed January 31, 1990
/s/ Kevin C. Potter, Chairman
/s/ Carl W. Thompson, Commissioner
/s/ Pamela I. Anderson, Commissioner
On appeal the Complainant seeks Commission review of the ALJ's dismissal of her complaint with respect to non-hire for the position of Food and Beverage Director in October-November 1984, February 1986 and September 1986, and non-hire for the position of Assistant Food and Beverage Director in April 1986.
The Commission initially notes that, although not specifically raised on appeal by the Complainant, it appears that the ALJ erred in dismissing, on the basis of untimeliness, the Complainant's age discrimination claim with respect to her non-promotion in October or November 1984. (2) Section 111.39(1)'s 300-day time limit within which to file a complaint is a statute of limitations, subject to waiver, and not a statute concerning subject matter jurisdiction. Milwaukee County v. LIRC, 113 Wis. 2d 199, 205, 335 N.W.2d 412 (1983). Section Ind. 88.11(2) provides that affirmative defenses, including the statute of limitations defense, unless raised in a timely filed answer may, in the absence of good cause, be held to constitute a waiver of such affirmative defense. The file has been reviewed in this case and it appears that Respondent never filed an answer. The "STATEMENT OF THE CASE" portion of Respondent's post-hearing brief to the ALJ also fails to indicate that Respondent filed a timely answer raising the statute of limitations defense, although Respondent does later argue in its brief that Complainant's charge with respect to the October/November 1984 position was untimely. The argument in the post-hearing brief came too late. Accordingly, paragraph 2 of the ALJ's Conclusions of Law has been deleted and additional findings made with respect to the Respondent's hiring of Bob Betzig for the Food and Beverage Director position in the fall of 1984.
The Complainant argues that while she contended the Respondent has passed her over for promotion to five positions, the ALJ erred by ruling on six promotions and that "such an obvious error in the facts on the ALJ's behalf suggest that other unseen errors could exist and affected his final decision." The Commission is not sure this was the case. See paragraphs 4 and 5 of the ALJ's Conclusions of Law. Note that both paragraphs refer to a March 1986 non-promotion. Also note that together, these paragraphs make reference to Respondent's (North Central) Region hotel, Respondent's Milwaukee South hotel and Respondent's Milwaukee West hotel -- the same facilities identified as the Respondents in this case. It appears that the ALJ was simply saying that Respondent's Milwaukee West hotel was not involved or liable for the alleged discrimination in March 1986.
The Complainant also argues that the ALJ's decision fails to cite any case law and/or any authority for support and does not address the issues and authorities presented in Complainant's brief. The Complainant makes reference to Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985), in particular, asserting that she has established a prima facie case of discrimination. In Puetz, the court announced that it would follow the allocation of burdens and order of presentation of proof applicable under Title VII case law and the Age Discrimination Law. Specifically, the court held that under such laws the complaining party is required to establish a prima facie case, which then raises a presumption of discrimination; that to rebut such presumption, the defendant then need only articulate a legitimate, nondiscriminatory reason for the action taken and that the complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. The Puetz court then went on to state that while the elements of a prima facie case vary, in a claim of discriminatory discharge on the basis of age, the complainant must show that: (1) he (or she) was 40 or older and thus a member of the protected age group; (2) he (or she) was discharged (not promoted, in the instant case); (3) he (or she) was qualified for the job; and (4) either replaced by someone not within the protected class (or, e.g., someone not within the protected class was promoted instead) or others not in the protected class were treated more favorably.
Although the ALJ's decision does not cite any case law, since the ALJ heard and considered the Respondent's articulated reasons for its actions (3) and decided the ultimate question of whether the Complainant has established probable cause to believe that age discrimination has occurred, the question of whether or not the Complainant established a prima facie case of age discrimination is no longer important. U.S. Postal Services Board of Governors v. Aikens, 460 U.S. 711, 31 FEP Cases 609 (1983). Looking at all the evidence presented in this case, the Commission is convinced that the ALJ is correct in finding that the Complainant has failed to establish probable cause to believe she has been discriminated against on the basis of her age with respect to the four positions identified by the ALJ. The Complainant's own testimony indicates that it is not believable that she had applied for all the jobs in question. For example, on the second day of the hearing, when Complainant initially testified about the Food and Beverage Director position that became available after Jill Keller's discharge, she gave testimony suggesting that she had not applied for this job. Complainant testified that she saw a notice stating that Keller was on special assignment and then "all of a sudden," David Robert was hired. On the final day of the hearing, however, Complainant asserted that she verbally applied for the job with Donovan -- stating that after reading the notice about Keller's special assignment, she told Donovan that if Keller did not return, to "consider her" and that she was "still interested in the job." Further, in any case, all those hired by Donovan had more job-related education and relevant experience that equalled or exceeded Complainant's experience in the restaurant business, which supports Donovan's assertion that he viewed Complainant as lacking sufficient qualification for the promotions in question.
Citing paragraph 3 of the ALJ's Findings of Fact, the Complainant next argues that the ALJ has "displayed his lack of impartiality toward Complainant through his comments concerning her grammar, communication skills and difficulty understanding questions asked of her." The Complainant argues, among other things, that such finding totally disregarded that Respondent never raised that as a defense issue. While a review of the record does not reveal a lack of impartiality on the part of the ALJ, the Complainant is absolutely correct in asserting that it was improper for the ALJ to make such a finding because the Respondent had not raised those matters. Accordingly, these extraneous findings have been deleted.
The Complainant also apparently argues that the ALJ failed to mention or consider the April 1983 meeting "wherein management admitted in the presence of several Holiday Inn employes that they (management) were there to get rid of the older employes." However, the importance that can be attributed to this evidence is greatly diminished by at least two factors. First, this reference is to an alleged statement that was made by Randy Knutson at Holiday Inn--West, not Tim Donovan, the individual responsible for the hiring decisions of which Complainant complains. Secondly, and more importantly though, the Complainant presented absolutely no evidence showing that the Respondent got rid of any of its older employes. In fact, the undisputed testimony presented showed that Donovan himself had hired several department head employes at Holiday Inn--West who were near or even above Complainant's age. The Complainant apparently finds little relevance in the fact that Donovan made such hires, asserting that those individuals hired were not supervisors in the Food Services Division. However, the simple fact is, despite Complainant's assertions to the contrary, the Respondent had no evident practice of excluding people over age 40 from supervisory positions, as noted by the ALJ in Finding of Fact #22.
Finally, the Complainant takes exception to that portion of the ALJ's finding in paragraph 5 about training for a first line supervisory position, disputing the existence of such a position or training, except as a pretextual cover-up to appease the Complainant. However, this matter really has no bearing on the Complainant's promotion discrimination claims. The Complainant's complaint does not allege that she was denied or given improper training due to her age. In any event, no other employe at Holiday Inn--West had ever been given any training to qualify for a promotion.
Lastly, the Commission has made several modifications to, the ALJ's decision to correct misspelled names and words, and to make certain findings better conform to the evidence.
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(1)( Back ) The effect of the Commission's decision is that this case will be returned to the Division for an attempt to conciliate the ALJ's finding of probable cause to believe there was age discrimination with respect to the Complainant's failure to be promoted to the position of Catering Director, except if the Complainant decides to seek circuit court review of the Commission's decision.
(2)( Back ) The Complainant filed her complaint of age discrimination against Respondent in October 1986.
(3)( Back ) The Respondent's articulated reason for its failure to promote the Complainant was that she had failed to apply and/or lacked sufficient qualifications for the promotions.