JULIE DE BAUCHE, Complainant

VOLLRATH CO LLC, Respondent

An administrative law judge 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 administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.

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

Dated and mailed December 19, 2006
debauju . rsd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

In her petition for commission review the complainant argues that the administrative law judge disregarded overwhelming evidence that the respondent failed to consider or hire the complainant for the May 2001 position based on her sex. The complainant contends that she had more experience than Robert Becker, and that although Becker lacked aluminum bronze experience, he was nonetheless offered a job, whereas the complainant was not interviewed. The complainant's argument fails. At the hearing the respondent credibly explained that it did not interview the complainant because it had already selected candidates to be interviewed and begun the interviewing process prior to receiving the complainant's application. Although the complainant points out that the respondent waited four months to fill the position and that it conducted a second round of interviews, the respondent did not re-review the applications or afford further consideration to those applicants who were not initially selected, but elected to reinterview the two individuals it was already considering. In this regard, the complainant was treated no differently than those male applicants who were not initially selected for interviews. Further, while the complainant compares herself to Robert Becker, whom she contends was offered the position in spite of being less qualified, the record indicates that Becker withdrew from consideration before the respondent conducted the second round of interviews and was not reinterviewed for the position. The successful applicant, and the only person who was interviewed for the job after it was reopened, was Thomas Krcma, whom the complainant concedes was as or more qualified than she. Under all the circumstances, it cannot be said that the complainant was denied the May 2001 position because of her sex.

The complainant also contends that the administrative law judge's decision regarding the October 2001 position is contrary to the evidence in the record. First, she maintains that she was not initially selected for an interview under circumstances that create an inference of discrimination. The complainant states that she testified she was more qualified than the candidates initially selected for interviews, and the respondent failed to call any witnesses to rebut this testimony. Second, the complainant contends that, although she was ultimately granted an interview after filing her complaint, the respondent did not sincerely consider her for the job. These arguments lack merit. The respondent's witnesses agreed that the complainant was qualified for the job, but testified that the individuals whom they selected for interviews had more shop experience that seemed directly relevant to the work done at the respondent's facility. The complainant offered no competent evidence to rebut this. Her own testimony that she considered herself more qualified is unpersuasive. Moreover, even if there were some basis to conclude that the complainant was not initially selected for an interview because of her sex, the fact remains that the respondent did ultimately grant the complainant an interview and, notwithstanding her protestations to the contrary, did consider her for the job. The respondent presented a number of legitimate, non-discriminatory reasons for its decision to offer the job to Thomas Lloyd instead of the complainant, including that Lloyd had more varied work experience than the complainant, and had worked with both stainless steel and aluminum bronze. The respondent further indicated that it considered Lloyd a good fit because he knew Vollrath and, further, that his experience owning his own business, which required him to troubleshoot and make difficult decisions, was appealing. The complainant's subjective belief that her qualifications were superior to those of Mr. Lloyd cannot, in the absence of any evidence of pretext, outweigh the respondent's reasoned business judgment to the contrary.

In her brief the complainant argues that the record does, in fact, contain evidence of pretext. She contends that Mr. Baumann testified the respondent required "go-to men," and stated that the respondent would select her for a third requisition because of the "woman thing." However, the commission sees no reason to view such comments as evidence of discriminatory intent. Baumann's testimony that the respondent has several "go-to men" who are responsible for troubleshooting when problems arise does not suggest that the respondent would not consider a woman for the job, any more than the term "journeyman" tool and die maker indicates a preference for a male. Further, the statement that the respondent would hire the complainant for a third requisition because of the "woman thing," assuming it was made, does nothing to support the complainant's argument that she was denied hire because of her sex, and, if anything, indicates an intent to afford the complainant preferential treatment in further hiring decisions.

The complainant also contends that the respondent's emphasis on aluminum bronze experience was a pretext for discrimination and maintains that the administrative law judge ignored the testimony of her expert witness that aluminum bronze experience was not a legitimate consideration in hiring a tool and die maker. The complainant further points out that the respondent was willing to consider Mr. Becker's application, although he did not have aluminum bronze experience and that it contended it would hire her if it had a third job opening, notwithstanding her lack of aluminum bronze experience. Again, this argument fails. While the complainant and her witness may disagree with the respondent about the importance of aluminum bronze experience to the respondent's operation, it is the respondent's prerogative to decide what qualifications and experience it most values in a job applicant. Moreover, the complainant's argument ignores Mr. Baumann's credible explanation that, while the respondent was willing to hire someone without aluminum bronze experience, it certainly helped that Lloyd had it.

Finally, the complainant takes issue with the administrative law judge's decision not to permit her to amend her complaint to include the October 2001 hiring decision. However, because the administrative law judge nonetheless considered and addressed those allegations in her decision, and because the commission agrees that the hiring decision in question was not tainted by unlawful discrimination, it considers it unnecessary to address the question of whether the complainant should have been permitted to amend her complaint at the hearing.

cc:
Attorney Carey J. Reed
Attorney Ann I. Mennell

Appealed to Circuit Court.

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uploaded 2006/12/27