DENNIS GORDON, Complainant


ERD Case No. 8450872, EEOC Case No. 055841737

An administrative law judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on October 23, 1986. Complainant filed a timely petition for review of the Judge's decision and both parties subsequently submitted written arguments to the Commission.

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 (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed October 16, 1987

/s/ Hugh C. Henderson, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


On appeal the Complainant has argued that the Respondent has not proved it had a legitimate, nondiscriminatory reason for rejecting his application on three separate occasions. Complainant argues that the reasons given by the City for not hiring Complainant have shifted and changed each time it has been pressed a little bit harder to come up with a legitimate nondiscriminatory reason for not hiring him and none of the reasons given hold up when measured against the evidence in the case. Complainant argues that (1) initially, when he first began to question why he had not been hired he was told that the applicant chosen was more qualified while Complainant's scores and work experience indicate otherwise; (2) after he filed a complaint Respondent took the position that he was not hired because he had a history of "jumping" from one job to the next, but at no time during his interviews was any question ever raised regarding his work history and in truth his work history is one of continuous and substantial, practical work experience in the field of applied chemistry while none of the three women hired had any significant work experience in the field of applied chemistry; and (3) after the Department had issued its initial determination (March 19, 1985) "the City, perhaps recognizing the weakness in its new reason for turning down (Complainant's) application for employment, again changed its reason for not hiring him" and began contending that Complainant was not hired because he was not interested, or less interested than the young women in the chemist position and that the young women had been hired because they were the persons most interested in the job.

The Complainant's arguments here are without merit. Initially, it must be noted that the Respondent need not "prove" that legitimate nondiscriminatory reasons existed for its failure to hire the Complainant. "The employer's burden is satisfied if he simply 'explains what he has done' or 'produc[es] evidence of legitimate nondiscriminatory reasons.' " Texas Dept. of Community Affairs v. Burdine, 25 FEP Cases 113 (1981), quoting Board of Keene State College v. Sweeney, 18 FEP Cases 520 (1978).

The Respondent's reason for not hiring Complainant has never shifted. The Respondent has always maintained that it found the successful candidates more qualified than Complainant because Complainant had a history of "jumping" from one job to the next and because Respondent felt Complainant was not actually desirous of achieving the job. In a letter dated January 16, 1985, prior to the issuance of the initial determination, the Respondent advised the Equal Rights Division that Complainant's history of "jumping" from job to job and the fact that the general level of his positions seem to be on a downward, rather than level or upward trend, gave Mr. Laszewski, Mr. Joers and Mr. Hegmann cause for apprehension regarding the actual abilities of Mr. Gordon," and also that Respondent concluded that Complainant was not actually desirous of achieving the entry-level job because of his statement "is this all there is to this job" during an interview. Laszewski made the final decision in hiring, and he had input from Joers and Hegmann.

Regarding the matter of Complainant's interest in the job Complainant argues that Respondent's "newest reason does not hold up well under examination" either because Respondent's representatives made no effort to weigh the relative interest in the job of the other applicants who were in the protected age class. Complainant offered no evidence to support this assertion and, in fact, the evidence is to the contrary. It appears there were only two other applicants being considered who were in the protected age group. This was Dolores Hayden, a female, D.O.B. April 13, 1936, and Robert Kling, a male, D.O.B. September 19, 1930. While the evidence does not disclose what specific effort Respondent's representatives made to determine Hayden's interest in the job, Laszewski testified that he usually asked the candidates the same questions and that he had given all the applicants an opportunity to tell why they should get the job. There was specific testimony by Hegmann that Kling was questioned about his interest in the job. Hegmann stated he concluded based on statements made by Kling that Kling, who was working for another department with the City at the time, was merely interviewing for the sake of trying to get a wage increase in his job in the other department.

The Complainant further argues that if the level of interest really was considered, neither of the two most interested persons (female hirees Reiland and Koller) stayed with the job for even six months, which suggests that it was actually youthful enthusiasm and sex of the applicants that was taken into account. However, while it is true that they did not stay long this is not evidence that Respondent had not actually perceived them as having more interest in the job than Complainant.

The Complainant further argues that the only thing Respondent could point to in support of its assertion that Complainant was not interested or was less interested in the job than the younger women was the fact that he had become agitated during the course of conversation with Hegmann and had asked more questions about. the equipment in the lab than others had asked. The Complainant seriously understates the evidence on this point. Hegmann, whose job was to show the lab to the candidates and to explain the type of work done there, testified that during his interview with Complainant, Complainant stated "Is this all there is to this job?", and when he (Hegmann) explained that the job was an entry-level job, Complainant accused Hegmann of not telling him what the entire job was all about and asked what research was done in the laboratory. (TR 75-76)  Hegmann concluded that the Complainant was looking for work in the research field and was not interested in the job Respondent had to offer.

Complainant also argues that the City's representatives apparently discounted Complainant's repeated verbal expressions of interest as well as the fact that on two separate occasions he had been willing to travel to Milwaukee from Madison in order to be interviewed for the job and that apparently he was the only applicant who had called to ask why he had not been hired when the position was filled the second time. However, these assertions do not. refute Hegmann's testimony about the comments Complainant made to him and the conclusions that were drawn by Respondent based on them.

Additionally, the Complainant asserts that his alleged lack of interest is an after- the-fact rationale asserted for the first time after the Department had issued its initial determination in this case. The Complainant is in error as shown by Respondent's letter to the Department dated January 16, 1985. Furthermore, the Complainant himself effectively admits that Respondent's concern regarding the applicants' interest was an important concern of Respondent during the interview process when he testified that every time he talked to someone he was asked the question whether he was interested in the jab and if he would be happy in that kind of setting. (TR 23)

Lastly, Complainant argues that "contemporary documents, as well as the testimony of the City's own representatives, reveal that on each occasion the chemist position was open, before the interviews of the applicants even were scheduled, the City already had made the decision to consider all of the women who had applied for that position, regardless of their examination scores, but only to interview those men who it was compelled to interview because their scores were among the top three examination scores" (emphasis in original); that when the Bureau of Engineers asked for approval to use the City's selective certification process "in order to hire the young women it wanted to hire instead of Gordon, it did not justify that request on the basis that he, or any other man, was 'less interested' in the job, but only on the basis that it wanted to increase the number of women in its employ." The Complainant is absolutely correct, the Respondent had made a decision to consider all the women. As the Administrative Law Judge stated in his memorandum opinion, "That process (selective certification), at least as far as it is disclosed by the record in this case, does nothing more than increase the number of persons among whom an appointing authority is authorized to make a choice. It does not impair the rights of any males or non-minorities who would in the normal course of events, because of their score, have been considered anyway. The Administrative Law Judge is not prepared, simply because a respondent has such a selective certification procedure in place, to make the assumption that the hiring decisions made on the basis of such expanded certifications are somehow tainted."

The second prong of Complainant's argument on appeal focuses on the selective certification process and affirmative action in general. Complainant argues that the real reason Complainant was not hired was that the Respondent wanted to hire a woman and Joers admitted this to Complainant; that affirmative action must be done pursuant to an affirmative action plan that is based upon findings of past discrimination by a competent body; that the Engineering Bureau has not been found to have discriminated against women in the past; and that the City's representatives were not trying to remedy any past discrimination when they pursued their selective certification of women applicants for the chemist position.

The Administrative Law Judge made the following comments on this matter:

"It is a legitimate question whether or not, after the appointing authority receives the certification with the additional names, it allows minority or sexual status to intrude into the decision making process which is then to follow. Indeed, there was some evidence in this record which could have been taken as suggesting that the appointing authority here was subtly influenced by the selective certification process to actually give a preference to females in the hiring decision itself. However, the administrative law judge could not in good conscience conclude that a preponderance of the evidence so demonstrated. The testimony about certain comments being made about 'affirmative action' and getting females into non- traditional roles was, although suggestive, ultimately inconclusive. On the other hand, the evidence was quite conclusive that  -- whether or not it was more as a result of a general personality trait than actual disinterest in the job -- that Complainant made a very negative impression on the Respondent in the interviewing process which effectively resulted in his being eliminated from consideration for the opening, for reasons unconnected with his age or sex."

The Commission agrees with the Administrative Law Judge. Had the Respondent simply wanted to hire a woman it could have hired Konnie Jensen right off the bat. Jensen, who ultimately wound up with the position, but had been initially rejected, ranked third on the original list of top three candidates and could have been hired without the selective certification process. The fact of the matter is that Complainant would not have been hired by Respondent under any circumstances because it was clear to the Respondent that he was not really desirous of obtaining the entry-level job.

Contrary to the assertion made by Complainant an employer need not have been found guilty of past discrimination before it could make a sex-conscious hiring decision. Johnson v. Transportation Agency, Santa Clara County, California, __ U.S.__, 107 S. Ct. 1442, 43 FEP Cases 411 (1987). "[A]n employer seeking to justify the adoption of a plan need not point to its own prior discriminatory practices, nor even to evidence of an 'arguable violation on its part. (citation omitted) Rather, it need point only to a conspicuous . . . imbalance in traditionally segregated job categories."' Id. at 418.

The Court stated that to determine if an imbalance exists in jobs that require no special expertise employers should compare the percentage of minorities or women in the employer's workforce with the percentage in the area labor market or general population, and where a job requires special training, the comparison should be with those in the labor force who possess relevant qualifications.

The fact that the position in question undoubtedly required special training -- Bachelor's degree with a major in chemistry or chemical engineering--would require that the Respondent herein determine whether a conspicuous imbalance exists by comparing the percentage of women in its workforce with the percentage of those in the labor force with a Bachelor's degree in chemistry or chemical engineering. This record contains only evidence regarding the percentage of women employed in the Bureau of Engineers (37 out of 297 in 1983 and 38 out of 299 in 1984). It should also be noted that Respondent provided Complainant with a copy of its Selective Certification program during the hearing and allowed him to make it a part of the record but Complainant failed to make it a part of the record.

Assuming, arguendo, the Commission were to conclude that the Complainant's sex was a factor in his failure to be hired the following analytic framework would be followed:

"Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer's employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer's decision, the burden shifts to the plaintiff to prove that the employer's justification is pretextual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, however, as petitioner suggests, that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer, to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff." (emphasis added)

Johnson, supra, at 414. (1)

The Complainant has argued that "the City has failed to offer any evidence whatsoever of a 'conspicuous imbalance in its workforce.' " (emphasis added) However, as noted above the Complainant has the burden of proving the invalidity of an affirmative action plan. In view of the fact that no evidence was presented regarding the percentage of women in the labor market, the commission concludes that the Complainant could not meet his burden of proving the invalidity of any affirmative action plan utilized by the Respondent.

In LeDoux v. D.C., 43 FEP Cases 1880 (D.C. Ct. App. 1987), a case decided since Johnson, supra, where the court was considering a challenge of lack of promotion due to the employer's. affirmative action plan and the appellants had presented no evidence comparing the percentage of women in the employer's workforce and those in the labor force with the requisite training or ability, the court stated:

". . . even assuming there were the appropriate statistical data against which the Department's. Plan should be judged, see note 22 infra, the appellants failed at trial to introduce any data that purports to identify those in the District of Columbia labor force who possess the requisite qualifications. Because the ultimate burden of proof in a Title VII case is on the plaintiff, see e.g., Johnson, 107 S. Ct. at 1449; McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), the appellants' unsupported contention must fail." Id. at 1890.

Further, the Complainant also failed to show that Respondent's affirmative action plan unnecessarily trammels any legitimate interests of males.

Accordingly, the Commission finds that Complainant Gordon's complaint herein must be dismissed.



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(1)( Back ) The Respondent has argued that assuming it is found to have been pursuing an affirmative action policy with respect to employment of women, the Complainant still would not have a case.


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