MICHAEL J STRONG, Complainant

FRB PROPERTY MANAGEMENT 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 conclusions in that decision as its own, except that it makes the following modifications:

In the final sentence of the fourth paragraph of the decision, the reference to "Ms. Anderson" is changed to "Mr. Strong."

The FINDINGS OF PROBABLE FACT section is deleted, and the following substituted, in order to more accurately reflect the evidence of record. The commission, in rewriting the ALJ's findings, has not overturned any of his credibility determinations.

2. Strong filed a discrimination charge (EEOC Case No. 260980803) against Fleming Companies, Inc., on May 27, 1998. Fleming Companies, Inc., owned and operated certain Sentry grocery stores.

3. At all times relevant here, Sentry was a retail grocery chain with each store owned independently.

4. During 2006, Strong applied for a position in the meat department of a Sentry store located in Waukesha. His application was forwarded to the Sentry store at 2938 North Oakland Avenue in Milwaukee. On April 15, 2006, Strong completed an application for the Meat Manager position at the Oakland Avenue Sentry store.

5. The Oakland Avenue Sentry store was owned and operated by FRB Property Management, Inc. (FRB). Frank Brunner (Brunner) was one of the owners of FRB.

6. During 2006, Neil Schmeckpepper (Schmeckpepper) was the manager of the Oakland Avenue Sentry store.

7. In the written application he filed for the Meat Manager position, Strong stated that he had worked as a meat cutter for Piggly Wiggly from April 1980 through March 1984, for Fleming from February 1985 through December 1989, and for Kohl's from January 1990 through May 2003. Strong's resume stated that his most recent relevant experience was as a meat cutter for Kohl's from 1999-2003.

8. Schmeckpepper interviewed Strong for the Meat Manager position on April 16, 2006. Schmeckpepper did not have the authority to hire department managers, but instead made hiring recommendations to Brunner. Schmeckpepper told Strong that his application looked good, and he would get back to him the next week with a decision. Strong spoke briefly with the current Meat Manager after his interview.

9. On April 19, 2006, Strong phoned Schmeckpepper to ask if a decision had been made. Schmeckpepper told Strong he would get back to him later in the week.

10. Some time after April 16, 2006, Schmeckpepper interviewed a second candidate for the Meat Manager position. This candidate is white, and had recent experience working in the meat department of the Waukesha Sentry store. Schmeckpepper considered this candidate to be more qualified than Strong given his more relevant and more current experience, and recommended his hire to Brunner.

11. Some time between April 22 and 28, 2006, Brunner decided to accept Schmeckpepper's recommendation to hire the other candidate.

12. In April of 2006, neither Schmeckpepper nor Brunner had any reason to be aware that Strong had filed a prior discrimination charge against Fleming Companies, Inc.

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

Dated and mailed December 2, 2009
stronmi . rmd : 115 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

In reviewing a failure to hire case such as this one in which disparate treatment is alleged, the commission has utilized the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). Within this framework, the complainant has the initial burden to establish a prima facie case of discrimination by showing 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). If the complainant succeeds in establishing a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the complainant's rejection. Should the employer articulate such a reason, the complainant must then prove that the reason offered by the employer was not the true reason but was a pretext for discrimination. Burdine, supra. See, also, Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

Here, the complainant proved that he applied for an available position for which he was qualified, and that his rejection in favor of a white applicant created an inference of race discrimination. This establishes a prima facie case.

The complainant appears to then argue, at least by implication, that, because he established a prima facie case of race discrimination, and the standard here is one of probable cause, he sustained his burden of proof.

"Probable cause," for purposes of the Wisconsin Fair Employment Act (WFEA), is "a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the [WFEA] has been or is being committed." Wis. Adm. Code § DWD 218.02(8).

The concept of probable cause set out in this administrative code provision focuses on probabilities, not possibilities (Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992)), and lies somewhere between preponderance of the evidence and suspicion (Hintz v. Flambeau Medical Center, ERD Case No. 8710429 (LIRC Aug. 9, 1989)). The concept of the prima facie case, however, focuses on inference and presumption, which are more closely akin to possibility and suspicion than to probability. As a result, the complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged. See, Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005); Nelson v. Verizon Logistics, ERD Case No. CR200201582 (LIRC Sept. 16, 2005).

The respondent articulated a reason for its decision to hire the other candidate, i.e., that this candidate had more recent relevant experience, which is legitimate and non-discriminatory on its face.

The burden then shifts to the complainant to show pretext.

The complainant appears to be arguing that the fact that he was qualified for the job but was not hired is sufficient to establish pretext. However, this is not enough. The record does not establish that the information available to the respondent during the hiring process showed that the complainant's qualifications were superior to, or even comparable to, those of the successful candidate. This information indicates instead that the complainant's most recent relevant experience ended in May 2003 and none of his relevant experience was with a Sentry store, whereas the successful candidate had worked as recently as 2006 in the meat department of another Sentry store. The respondent's conclusion that the other candidate was the more qualified was reasonably justified, and the complainant has failed to establish pretext in this regard.

The complainant fails to offer any other pretext arguments.

The complainant has failed to sustain his burden to prove that probable cause exists to believe that he was discriminated against based on his race as alleged.  
 

Retaliation for engaging in a protected fair employment activity

The complainant also alleges that he was retaliated against for engaging in a protected fair employment activity when the respondent did not hire him for the Meat Manager position.

The only protected activity claimed by the complainant is his filing of a discrimination charge against Fleming Companies, Inc., in 1998.

In a retaliation case such as the one under consideration here, the respondent's motivation is the ultimate issue. See, Callaway v. Madison Metro. School District, ERD Case No. 9101304 (LIRC, Nov. 27, 1996). In order to establish a prima facie case of retaliation, the complainant must show (1) he opposed an unlawful employment practice, (2) he suffered an adverse employment action, and (3) there was a causal connection between the opposition and the adverse action. Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC, March 9, 1999). The respondent can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action, and the complainant can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct. Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275 (Ct. App. 1989).

In order to establish a causal connection, it must be shown that the alleged retaliator was aware, or had reason to be aware, of the complainant's protected activity. See, Froh v. Briggs & Stratton Corp., ERD Case No. 200101453 (LIRC Sept. 29, 2004); Pluskota v. Alverno College, ERD Case No. 200301041 (LIRC Oct. 21, 2005). Here, the record does not show that either Schmeckpepper, who effectively recommended the hiring of the other candidate, or Brunner, who made the hiring decision, had any reason to be aware that the complainant had filed a discrimination charge against Fleming Companies, Inc., in 1998. The record does not show any link between either of these individuals and Fleming Companies, Inc., or between FRB and Fleming Companies, Inc. As the complainant himself testified, during the relevant time period, each Sentry store was separately owned and operated.

The complainant failed to sustain his burden to show that probable cause exists to believe that he was retaliated against as alleged. 
 

Procedural issue

The complainant asserts in his appeal to the commission that he did not receive the respondent's witness list or copies of exhibits prior to hearing as required by Wis. Adm. Code § DWD 218.17, and the respondent's evidence should consequently be excluded from the record.

The case file includes a copy of a May 29, 2008, letter from the respondent to the ALJ, with a copy to the complainant, setting forth the respondent's witness list and enclosing copies of its exhibits. This letter was addressed to the complainant at Redgranite Correctional Institution.

The case file also includes a memo indicating that the complainant contacted the ERD by phone on May 13, 2008, to provide notice that his mailing address had changed from Redgranite Correctional Institution to 3123 North 54th Street in Milwaukee. There is no indication in the file or otherwise that the complainant provided his new mailing address to the respondent.

More importantly, at hearing, the complainant did not mention that he had not received the respondent's list of witnesses or copies of exhibits prior to hearing, or offer objection to the receipt of any of the respondent's evidence on this basis. This deprived the ALJ of the opportunity to exercise his discretion in this regard. By waiting until his appeal was before the commission to raise this matter, the complainant effectively waived his ability to raise an objection based upon Wis. Adm. Code § DWD 128.17. See, James v. Dane County Parent Council, Inc., ERD Case No. CR200600735 (LIRC Feb. 20, 2009).

cc: Attorney Michael A. I. Whitcomb

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2010/01/05