STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

KENNETH F SCHMIDT, Complainant

ZIMPRO ENVIRONMENTAL SYSTEMS INC, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199501606, EEOC Case No. 26G951274

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.

DECISION

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

Dated and mailed: January 30, 1998
schmidt.rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

This case concerns the decision of Respondent Zimpro Environmental Systems, Inc. not to hire Complainant Kenneth F. Schmidt for a position as a welder. Schmidt, who was 47 years old at the time, alleged that Zimpro decided not to hire him because of his age. Zimpro asserted that it decided not to hire Schmidt because in his job interview he lacked enthusiasm for the job while the other candidate who was eventually hired was very enthusiastic about the possibility of working for Zimpro, and because Zimpro's experience with hiring former employes of J. I. Case (such as Schmidt) led it to believe that Schmidt was unlikely to remain as an employe of Zimpro for the long term. The ALJ credited the testimony of Respondent's witnesses and found that Zimpro had not made its decision because of Schmidt's age.

The parties' arguments -- Schmidt argues that (1) Zimpro did not substantiate its claim that it did not hire Schmidt because he lacked enthusiasm; (2) Zimpro's claim that it did not hire Schmidt because he lacked enthusiasm is contradicted by other evidence showing that experience was the primary hiring criteria; (3) using "enthusiasm" as a hiring criteria is inherently discriminatory; and (4) statistical analysis of Zimpro's workforce shows an overall preference for younger individuals.

Zimpro argues that the evidence did indeed show that Schmidt was less enthusiastic about the opportunity to work at Zimpro than the candidate who was hired and that this was a significant factor in the decision not to hire him. Zimpro also argues that the evidence shows that the decisionmakers were influenced by their prior experience in hiring other welders who, like Schmidt, had previously worked for higher salaries at J. I. Case and who quit shortly after being hired at Zimpro because they really were not interested in working for Zimpro and did not like it there. Zimpro denies that it constitutes age discrimination to prefer a candidate who is more enthusiastic about an offered job opportunity, and it asserts that the cases relied on by Schmidt to support his argument in this respect are distinguishable. Finally, Zimpro disputes the argument that statistical analysis demonstrates a pattern of discrimination in its hiring, by asserting that the argument relies on inaccurate and inadequate assumptions.

Schmidt's lack of enthusiasm -- Schmidt asserts that the record does not support Zimpro's claim that it did not hire him because he lacked enthusiasm and that the evidence instead shows that experience was the primary hiring criteria. The commission disagrees. Based on its review of the record, the commission is persuaded that Zimpro actually had this perception of Schmidt, and that the perception was accurate.

A number of aspects of Schmidt's own testimony are consistent with Zimpro's assertions. Schmidt described how, in his interview with Mr. Krause, he was shown an employe doing a particular type of welding and was asked if he could do that, and his response was to laugh and say, "Well, let's go for it. We'll see". (T. 45). Schmidt himself conceded that in his interview with Mr. Nikolai, he (Schmidt) "didn't really tell Mr. Nikolai a lot". (T. 48). Schmidt could not recall whether he shared with Mr. Nikolai any information beyond what was on his resume. (T. 49). Schmidt also conceded, that when Nikolai told him that he would have to do sandblasting depending on the workload, he (Schmidt) "just nodded". (T. 51).

As the Administrative Law Judge observed, Schmidt's attitude was also captured in his response to the question about what he did during the interviews to sell himself as someone who really wanted the job:

"Number one, I applied for the job. That in itself should say that I wanted it. Number two, I took my resume down there to show my welding credentials and that. Of course I wanted the job, or I wouldn't have applied or I wouldn't have went through them extremes. If I didn't want it, I wouldn't have went back for further interviews or followed up with telephone conversation" (T. 56)

It is not clear what the "extremes" were that Schmidt referred to. Applying for a job is hardly an "extreme" step to take to get a job. Giving a resume to a prospective employer is a similarly unremarkable approach. While Schmidt went back for a second interview, this evidences no initiative on his part; this second interview was given to him by Zimpro (T. 23).

Perhaps most telling, is the fact that apart from his initial application, Schmidt did not follow up any of his contacts on his own initiative, and the process continued because Zimpro got back to him. Thus, after Schmidt submitted his resume, he did not follow up in any way, and the process only continued because Zimpro called him a week or two later (T. 42). After his first interview (with Krause), Schmidt again did not follow up in any way, and the process continued only because Zimpro contacted him to ask him to come in again (T. 46). After his second interview (with Nikolai and then Krueger), Schmidt did not even contact Zimpro again for (in Schmidt's own words) "a month or whatever . . ." (T. 56-57). At that point -- a month or so after he last dealt with Zimpro -- Schmidt was, he declared, "kind of curious" (T. 28).

Schmidt's diffidence speaks volumes -- and it confirms the testimony of Zimpro's witnesses, to such things as the fact that Schmidt was very quiet and seemed unsure and not as interested in the position as Babcock (T. 171); that Schmidt appeared kind of tentative when looking at a blueprint Nikolai showed him and looked like he had very little interest in doing certain kinds of work shown to him by Nikolai (T. 188, 191, 194); and that Schmidt was not real enthusiastic about getting the job and gave a very poor interview for that reason (T. 249).

The fact that the testimony of Zimpro's witnesses on these points referred significantly to their general impressions, is no reason to reject it. On the contrary, that is exactly what would be expected. No one can deny, that people can project very definite attitudes, and that enthusiasm -- or a lack of enthusiasm -- are among these. These things are real, and the fact that they are hard to describe does not make them less so. Furthermore, the impressions of the Administrative Law Judge who heard and observed Schmidt, Krause, Krueger and Nikolai while they testified are entitled to some weight. He clearly obtained the impression, that Schmidt projected an attitude of lack of enthusiasm when he interviewed for the job, and that Krause, Krueger and Nikolai perceived that attitude which Schmidt projected and genuinely felt that he was not enthusiastic or even particularly interested in the job.

For all of these reasons, the commission agrees with the Administrative Law Judge. The testimony of the Respondent's witnesses that Schmidt conveyed an impression of disinterest when he interviewed for the job, is credible, and it is credited by the commission as being both an accurate description of their impressions, and an accurate description of Schmidt's approach in his contacts with Zimpro.

"Enthusiasm" as a discriminatory factor -- Complainant seeks to equate the factor of "enthusiasm" with overt discrimination. The commission disagrees. The extent to which a prospective employe actually wants to do the work which is offered is obviously a legitimate consideration in a hiring decision.

As the Administrative Law Judge noted, the problem intuited by Zimpro's witnesses from Schmidt's lack of enthusiasm as an applicant, was that Schmidt was over-qualified for the position. Whether or not that term was used by them, it is clear that the issues involved in the concept "overqualification" are exactly what was on the minds of the Respondent's decisionmakers. They had a situation in which they were attempting to fill a position which was an "entry level" one in their organization (T. 118), a position which was at "the bottom of the totem pole" (T. 215). Schmidt was coming from a position paying something like twice what they could offer for this entry-level position, and he was bringing experience in welding that was at a higher plane than what was needed for the position (T. 113). Schmidt was able to do, and accustomed to doing, more than Zimpro needed; he was also accustomed to being paid significantly more than what Zimpro could pay him. Any reasonable person in the position of Zimpro's management would be concerned, that Schmidt would be dissatisfied in the position.

Zimpro was acutely aware of the problems this could cause, because it had recently hired employes under circumstances almost identical to those which presented themselves in the case of Schmidt, and the results were precisely those which are considered to be the risk in hiring an "overqualified" employe. Zimpro had hired two experienced welders who had previously been employed by J. I. Case -- just like Schmidt -- and both had disliked working for Zimpro and had quit their positions there within only a few months (T. 282). It was perfectly rational for Zimpro to be concerned that if Schmidt seemed unenthusiastic about taking a lower-rated, lower paid job than he had been working in previously, he could well end up like those employes, unhappy in his job, and leaving within a short span of time.

The commission concludes that given these circumstances, it was not discriminatory for Zimpro to have this concern. Rejection of a job applicant because of a genuine belief that he is overqualified for the position at issue is not age discrimination. EEOC v. Insurance Company Of North America, 49 F.3d 1418 (9th Cir.1995), citing Stein v. National City Bank, 942 F.2d 1062, 1066 (6th Cir. 1991) (employer does not discriminate on the basis of age by refusing to hire all applicants who are "overqualified" because they possess college degree); Bay v. Times Mirror Magazines, Inc., 936 F.2d 112, 118 (2d Cir. 1991) (where job applicant expresses dissatisfaction with downgraded position, it is permissible for employer to decline to hire him on ground that he is overqualified); Binder v. Long Island Lighting Co., 933 F.2d 187, 193 (2d Cir. 1991) ("the ADEA does not forbid employers from adopting policies against `underemploying' persons in certain positions so long as those policies are adopted in good faith and are applied evenhandedly."). The fact that "overqualification" might be strongly correlated with advanced age does not make use of this criterion necessarily a violation of the laws against age discrimination. EEOC v. Insurance Company Of North America, Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1706-07, 123 L. Ed. 2d 338 (1993) (when an employer makes a decision on the basis of a criterion that is correlated with age, as opposed to age itself, the employer does not violate the ADEA).

In this case, a number of factors support the conclusion that Zimpro was acting on the basis of a genuine concern that the job applicant (Schmidt) was likely to be dissatisfied in the position he was being considered for. For one thing, there was the significant reduction in pay and in level of skill and responsibility from the job he had previously held. In addition, there was Zimpro's own experience with almost identical situations (skilled, highly paid welders from J. I. Case being dissatisfied in positions with Zimpro and quitting after short tenures). Most significantly, Zimpro's interviewers confronted a distinctly unenthusiastic demeanor of the applicant in his interviews, which was consistent with the feared outcome: an unhappy employe, looking to leave soon after he arrived.

Statistical evidence -- The commission agrees with the Administrative Law Judge that the statistical evidence was inadequate to allow, much less require, a conclusion of age discrimination. This is not merely because (as the ALJ noted) the analysis was not based on information about the distribution of ages in the available labor pool, although that is certainly a significant failure. It is also because the analysis proceeded from a fundamental assumption that was unsound.

Schmidt argues that "absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the population of the community from which the employes are hired". Schmidt then relies on an analysis which looks at "age at hire" and compares it to an expected "age at hire" distribution derived from looking at the age distributions in the general population of Marathon County, of Wisconsin as a whole, and the labor markets of Marathon County and Wisconsin as a whole. However, the commission believes that this analysis is faulty.

The cases Schmidt cites to support his statistical analysis (1) all involve issues of sex, race, national origin and other forms of discrimination based on characteristics that do not change. In this age discrimination case, however, the comparator populations are inappropriate, because they are not good analogs for the populations that are looking for jobs, especially for "entry level" jobs such as the one involved here:

"[t]he progression of age is a universal human process. In the very nature of the problem, it is apparent that in the usual case, absent any discriminatory intent, discharged employes will more often than not be replaced by those younger than they, for older employes are constantly moving out of the labor market, while younger ones move in. This factor of progression and replacement is not necessarily involved in cases involving the immutable characteristics of race, sex and national origin."

Laugesen v. Anaconda Co., 510 F.2d 307, 313 (6th Cir. 1975) (emphasis added). For these reasons, the commission has previously rejected similar efforts to prove age discrimination by the use of statistics that simply compare hires to age distributions in the general population. "Evidence that an employer has more young people than old people, without more, will not support a claim of age discrimination. The only kind of statistic which could potentially carry any significant weight in this area would compare, not overall numbers of younger versus older persons hired, but overall success rates of younger versus older applicants." Wygant v. Form Services North (LIRC, 04/29/93).

The assumption on which Schmidt's analysis rested -- that the distribution of ages within the group of persons who would be seeking jobs with Respondent was probably equivalent to the distribution of ages within the general population -- was faulty. As Laugesen indicates, the reality is that the distribution of ages within the group of people who are moving into the job market, and seeking entry-level positions, is significantly skewed towards younger ages. Therefore, a pattern of hiring results that shows a tendency toward younger ages is not necessarily probative of discrimination based on age.

cc: Attorney Thomas Terwilliger
Attorney Ronald J. Rutlin

Footnotes:

(1)( Back ) Intl. Brotherhood of Teamsters v. U.S., 431 U.S. 324 (1977), Castaneda v. Partida, 430 U.S. 482 (1977), Hazelwood Sch. Dist. v. U.S., 433 U.S. 299 (1977), U.S. v. New Jersey, 530 F.Supp. 328 (D.N.J. 1981), Miseter v. Illinois Central R.R., 832 F.2d 1427 (7th Cir. 1987), Caston v. Duke Univ., 34 FEP 102 (M.D.N.C. 1983), U.S. v. North Carolina, 512 F.Supp. 968 (E.D.N.C. 1981), Markey v. Tenneco Oil Co., 707 F.2d 172 (5th Cir. 1982).

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