SUSAN J KEENE, Complainant
MENARD INC, Respondent
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, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
Numbered paragraph 4. in the Findings of Fact section on page 2 of the decision is modified to read as follows:
After sustaining an injury, Keene returned to work in December of 2004 with a restriction to sedentary work. Based upon this restriction, Maki assigned Keene to a job sitting at a table in the front of the store offering Menard credit cards to customers. The seat at this table was a backless stool. Keene told Maki that she needed a more comfortable seat with a back. Maki directed Keene to obtain from her physician a written explanation of the type of seat her medical condition required. Keene visited her physician on January 4, 2005. As a result of this visit, Keene provided to Maki a medical report which stated she was restricted to sedentary work, with alternative sitting/standing/walking as needed, and should be permitted to "use a chair with a comfortable [sic]." Based upon this report, Maki told Keene he had no available positions she could perform. As a result, Keene was placed on leave until mid-February of 2005 when she was able to return to work without restrictions.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed May 8, 2008
keenesu . rmd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
(1) Maki's failure to promote her to the position of assistant manager for the building materials unit in January of 2005.
(2) Maki's failure to appoint her to the position of delivery scheduler in February of 2005.
(3) Maki's failure to assign her to the building materials unit when she returned from medical leave in February of 2005.
(4) Maki's imposition of a 3-day suspension on March 31, 2005.
(5) Maki's termination of her employment on April 4, 2005.
In her charge, Keene also claims that she was retaliated against. However, her allegation in this regard is that Maki retaliated against her after she went over his head to complain about her Thanksgiving holiday schedule in November 2004. This is not an activity which is protected by the Wisconsin Fair Employment Act (WFEA).
Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).
As stated by the court in Puetz:
McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).
In general, to establish a prima facie case of discrimination, a complainant must show that she was a member of the protected group and suffered the adverse action alleged, and that the relevant circumstances create an inference of discrimination, i.e., typically, that others not in the protected group were treated more favorably.
The standard of proof here is one of probable cause.
Promotion/appointment
As it relates to the promotion and appointment at issue, i.e., (1) and (2), above, the record does not show that the successful candidates (Okite and Logterman) were younger than Keene. As a result, their selection for these positions does not create an inference of age discrimination, and Keene has failed to establish a prima facie case in this regard.
If she had, the burden would shift to Menard to articulate a legitimate, non-discriminatory reason for these selections, which it has accomplished here by explaining that Okite and Logterman were at least as well qualified as Keene for these positions, and she was on medical leave at the time the vacancies in these positions were filled.
Keene asserts that pretext is demonstrated by the fact that she was actually better qualified than either Okite or Logterman. However, the record does not support this assertion.
Although the record shows that Okite had less knowledge of the building materials unit than Keene, it also shows that Okite had two years of directly relevant experience as an assistant manager of another unit in the store. In contrast, as she concedes, Keene had no management experience with Menard.
In addition, the record shows that Logterman had knowledge of, and experience with, a significantly broader range of delivery scheduler tasks and processes than Keene.
It should also be noted that, when these positions were filled, Keene was on medical leave and unable, at that time, to physically perform many of the duties and responsibilities of these positions.
Assignment to building materials unit
Prior to her injury, Keene was working as a cashier, not in the building materials unit. As a result, her assignment to cashier duties upon her return from medical leave was in fact a return to her prior duties.
During or around the time Keene was on leave, Gina Beatty was demoted from her position as an office manager and assigned to the building materials unit as a team member. Keene points to this assignment as evidence of age discrimination since, according to Keene, Maki was aware of her desire to return to the buildings material unit.
Again, the record does not show that Beatty is younger than Keene, and, as a consequence, an inference of age discrimination is not created. Moreover, the record does not show when Beatty's demotion/reassignment occurred, or whether there was an available position in the building materials unit at or after the date of Keene's return from medical leave
Keene has failed to sustain her burden to establish a prima facie case of age discrimination in regard to this allegation.
Suspension/termination
Even though the record does not show, in regard to the suspension, that Keene was treated less favorably than younger workers who had displayed a similar attitude toward management, or who had engaged in similar conduct, it will be assumed, for purposes of analysis, that Keene established a prima facie case of age discrimination in regard to this allegation.
Menard's explanation for the suspension, i.e., that Keene had demonstrated a continuing refusal to accept supervision and had engaged in aggressive insubordination at the March 31 meeting, is legitimate and non-discriminatory on its face.
The burden would then shift to Keene to establish that this explanation was a pretext for age discrimination. Keene argues, at least by implication, that pretext is demonstrated by the fact that she requested only reasonable information from Maki during this meeting, and did not demonstrate any objectionable behavior.
However, the evidence of record does not support this argument. The others present at the meeting consistently indicated, either through their testimony or their contemporaneous notes, that Keene's questioning was insistent and not restricted to her circumstances, and that she displayed a vindictive and argumentative attitude toward Maki.
Termination
Even though the record does not show that Keene was replaced by a younger worker, it will be assumed, for purposes of analysis, that Keene established a prima facie case of age discrimination in regard to her termination.
Menard's explanation for the termination, i.e., that, at the April 4 meeting, Keene refused to commit to following Maki's directives or abiding by Menard's policies, is legitimate and non-discriminatory on its face.
The burden would then shift to Keene to establish that this explanation was a pretext for age discrimination. Keene again argues, at least by implication, that pretext is demonstrated by the fact that she did not engage in such a refusal at the April 4 meeting.
Again, however, the evidence of record does not support this argument. The others present at the meeting consistently indicated, either through their testimony or their contemporaneous notes, that Keene stated she did not intend to change the attitude she displayed toward Maki, and was unwilling to commit to following Maki's directives or Menard's policies with which she did not agree. Such a refusal to accept supervision reasonably justified Menard's decision to terminate Keene's employment.
Keene also characterizes Maki's management decisions as "unfair," and her uneasy work relationship with him as attributable to a personality conflict.
However, the test here is not whether Maki's management style or decisions were fair or constituted best practices but instead whether they were discriminatory. In addition, a clash of personalities, without some evidence that such conflict is based on a discriminatory animus, does not support Keene's allegation that she was the victim of age discrimination. See, Vick v. Marshfield Door System, ERD Case No. CR200403297 (LIRC Jan. 31, 2007).
The evidence of record does not support a conclusion that probable cause exists to believe that Keene was discriminated against based on age as alleged.
It should be noted that Keene relies upon certain facts not of record in her appeal to the commission.
In this appeal, Keene also takes issue with the administrative law judge's (ALJ) refusal to permit her to call Jim Myers as a hearing witness.
The file in this matter reveals that Keene submitted a list of potential witnesses to the ALJ prior to hearing which included the following:
(a) In group 1, a list of nine individuals, including Jim Myers, whom Keene did not designate as one of the key witnesses in this group, who would be asked to "testify to the fact that Mr. Maki stated in a manager's meeting that there were too many full time people at that location at the top of the pay scale not willing to move on and that they needed to do something about that."
(b) In the final group, a list of two individuals, including Jim Myers, who was a "previous building materials manager...and who also informed Mr. Maki of my previous experience with delivery scheduler position."
Apparently to avoid repetitious testimony, the ALJ permitted Keene to call two witnesses from group 1, and one from the final group. Keene did not pick Jim Myers as her witness from either of these groups. The ALJ properly exercised his discretion in this regard, and Keene was able to present testimony both as to the statement in the manager's meeting (through Larry Smith and Steve Maki), and as to Keene's experience with delivery scheduling (through David Susa).
Keene also takes issue with Menard's failure to call Jim Myers as a hearing witness even though his name appeared on its list of potential witnesses. However, a party is not required to call each of the potential witnesses on its list.
cc: Attorney James L. McMenomy
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