TRAVIS L. BARTEL, Complainant

GREATER MADISON CONVENTION & VISITORS BUREAU, 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.

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

Dated and mailed December 19, 2013
bartetr_rmd : 110 :  622.4  631

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

Bartel's argument is principally focused on what he contends are reasons to infer that the actual motivation of the individuals who decided not to consider him further for the Visitor Information Specialist Lead position, was unlawful bias based on age. Additionally, Bartel argues that if lack of recent supervisory experience was a true reason for his rejection, that rejection was unlawful on a "disparate impact" theory.

Having reviewed the record and considered the decision of the ALJ and the arguments of the parties, the commission is persuaded that there is no probable cause to believe that discrimination occurred.

Bartel argues that the respondent was inconsistent in its assertions about what its reasons for rejecting his application were, and that this supports an inference that its asserted reasons were a pretext for age bias. His argument in this regard is that in the ERD investigation the respondent relied solely on the matters of his supervisory experience not being recent and his application being late, and that the respondent then allegedly offered new, subjective reasons for its decision at the hearing. He argues that he was surprised by these allegedly new reasons such that his ability to marshal evidence contradicting them was impaired. He also argues that the existence of discriminatory motives could be inferred directly from the respondent's alleged misrepresentation.

The commission finds no "misrepresentation." The entries on the assessment form (Ex. 13) completed in connection with the selection process, include not only references to Bartel's supervisory experience not being recent and to his application materials arriving at the last minute, but also indications of concern about job performance, in the form of "requirements" being conspicuously left unchecked. The position statements the respondent then provided to the ERD make it clear that the determining factors in the decision were the matters of Bartel's supervisory experience not being recent and his application materials arriving at the last minute, but they also noted that "[b]ased on his work habits and past average performance, Travis had not demonstrated the qualities that we were looking for in a leader." (Ex. 17, p. 52). This is consistent, not inconsistent, with the indication on the assessment that the respondent considered Bartel's performance to be less than they were looking for. Considering all of the evidence about the representations made by the respondent at various points, the commission is not persuaded that there was any significant inconsistency in the reasons asserted by the respondent over time.

The fact that the respondent's emphasis in its submission to the ERD investigator was on the reasons it felt were most definitive (lack of recent supervisory experience and last-minute application), also does not appear to have misled Bartel about what issues would need to be explored at the hearing. In his direct examination of his client, Bartel's counsel opened the subject of whether Bartel's job performance met respondent's expectations in a number of respects. The commission is not persuaded that there was any surprise, much less prejudicial surprise, when after this, in the course of the respondent's case, it too addressed the subject of whether Bartel's job performance met respondent's expectations in a number of respects.

Bartel argues that a requirement that supervisory experience be recent is not found in the respondent's hiring criteria, and that this suggests that "it never entered anybody's head" until Bartel complained about age discrimination. But that is incorrect; it did come up before any allegation of age discrimination was made, in the form of the notation on the assessment form that Bartel's supervisory experience dated to 1980-81 and was "not recent." Furthermore, as the respondent accurately notes in its brief, the fact that a particular characteristic is not mentioned in a job announcement as being desirable does not mean that the employer's subsequent reliance on that characteristic as being important, was pretextual. Wallis v. St. Paul's Evangelical Church & School, ERD Case No. 200501111 (LIRC Aug 25, 2010). It is at most a permissible inference which the trier of fact may draw or not draw. The commission is not persuaded that it should be drawn here.

Ultimately this case reduces itself to a single, simple question which presents itself to the trier of fact: what was the subjective motive of the individual(s) who made the challenged decision? This is of course a question of fact which ultimately must be decided by drawing an inference from the words and acts of the parties. Weighing all the evidence here, and taking into account the "probable cause" standard which is applicable, the commission found itself unpersuaded that the respondent's decision-makers, Dale and Cavitt, were in fact motivated by bias based on age when they made the decisions that led to Bartel not obtaining the promotion he sought.

The commission also disagrees with Bartel's argument that the disparate impact theory provides a basis for finding discrimination here.

Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has a disproportionately adverse impact on a protected group. Disparate impact must be proved by statistical evidence, significant to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. Bedynek-Stumm v. County of Dane, ERD Case No. CR200100053 (LIRC Oct 10, 2003).

To make out a prima facie case of disparate impact, a complainant must show that an employment practice or selection device selects employees or applicants in a pattern which is significantly different from the pattern of a particular group in the applicant pool. Moncrief v. Gardner Baking Company, ERD Case No. 9020 (LIRC Jul 1, 1992); citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the complainant meets this burden, the employer may attempt to rebut the prima facie case by way of evidence that the employment practice or selection device has a manifest relationship to the employment in question. Id.

A single employment decision, involving only one employee, does not constitute the type of facially neutral policy or practice that can be the subject of disparate impact analysis. "There is no such thing as an 'individual disparate impact case.' " Abaunza v. Neenah Foundry, ERD Case No. 9000749 (LIRC Mar 30, 1993). Rather, for the purposes of disparate impact analysis, an employment practice consists of something in which an employer regularly or repeatedly engages. Turman v. W.H. Brady Company (LIRC, Oct. 17, 1985).

Bartel complains in his brief that "Ms. Cavitt resisted efforts to get her to specify how old is too old when it comes to supervisory experience," attempting to illustrate this by a lengthy quotation from the transcript. Apart from the fact that this argument disingenuously suggests that Cavitt said something about some supervisors being "too old," which she did not, this argument also misfires with respect to what is needed to support a disparate impact claim. Bartel's problem here is that to make out a disparate impact claim, it is necessary that there be a specific employment practice or selection device in which the employer regularly or repeatedly engages. Moncrief, Turman, supra. If Cavitt "resisted [Bartel's] efforts" to get her to specify where the dividing line was between supervisory experience which was "not recent" or "recent," the obvious reason was that there was no hard and fast number that the respondent regularly or repeatedly applied. For the reasons discussed above, that does not mean that there is a persuasive basis for an inference that the concern about the lack of recency in Bartel's experience was a pretext. But it does mean, that there is no employment practice specific enough to allow the kind of statistical evaluation of effect that is necessary in a disparate impact case.

That lack of any actual statistical evaluation is the other reason the disparate impact argument is unpersuasive here. Disparate impact must be proved by actual statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. Kaczmarek v. City of Stevens Point, ERD Case No. 200200370 (LIRC Aug 12, 2003). This is an evidentiary requirement. However, Bartel presented no evidence establishing the existence of statistically significant disparate impact. All he presented was a sort of "thought experiment," in his brief, positing a hypothetical population of individuals who all acquired two years of supervisory experience between the ages of 18 and 20, and then describing what the effects would be of applying to them a number of specific cut-off tests (which are not even argued to be tests actually applied by the respondent in this case, much less generally). This, the commission concludes, is wholly insufficient to establish a prima facie case of disparate impact.

In his reply brief, Bartel seeks to equate the patent inadequacy of his disparate impact case, with the situation presented in International Brotherhood of Teamsters v. United States, 431 U.S. 324, 342 n. 23 (1977). The situations are dissimilar. In Teamsters, the government had presented extensive statistical evidence. The court's dismissal of the company's objections to a number of elements of the statistical case, noted that even if accepted those objections "detracted little" from the force of the government's statistical case, and that "[i]n any event, fine tuning of the statistics could not have obscured the glaring absence of minority line drivers," an absence that it referred to as "the inexorable zero." That "inexorable zero" was a reflection of something that was part of the government's statistical case. Here, the complainant presented no statistical case at all.

cc:
Jeff Scott Olson, Attorney for Complainant
Amy O. Bruchs, Attorney for Respondent

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uploaded 2013/12/23