MARTIN E NELSON, Complainant
VERIZON LOGISTICS, 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:
The following is added to the FINDINGS OF FACT:
17. At the time the subject hiring decision was made, Albright was 32 years of age and Crass was 52 years of age.
The following sentence is added to the ORDER:
By stipulation of the parties,(1) the hearing record was supplemented by Respondent's Exhibit A, Declaration of Beverly Crass, filed with the Equal Rights Division on August 26, 2004.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed September 16, 2005
nelsoma . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
Robert Glaser, Commissioner
The complainant, relying upon Gentilli v. LIRC, Case No. 89 CV 2004 (Wis. Cir. Ct. Dane Co. March 30, 1990), argues that, at the probable cause stage, the very most a complainant should be required to do is set forth "that which would be required to make out a prima facie case."
It should first be noted in this regard that the circuit court's analysis of the probable cause standard in Gentilli does not establish binding precedent or authority for the commission, but instead may be cited or relied upon for whatever persuasiveness may be found in its reasoning and logic. Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), aff'd, 166 Wis. 2d 623, 480 N.W.2d 494 (1992).
"Probable cause," for purposes of the 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. Stichmann v. Valley Health Care Center, ERD Case No. 200104418 (LIRC June 14, 2005). See, also, Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004).
It is clear from the record that the complainant established a prima facie case of age discrimination, and that the respondent articulated a legitimate, non-discriminatory reason for its decision not to select him for one of the material handler positions, i.e., his receipt of the lowest interview score of the three candidates. Under the burden-shifting McDonnell Douglas (2) analysis, the burden would then shift to the complainant to demonstrate pretext.
The complainant's primary argument appears to be that pretext is demonstrated by the fact that the respondent did not investigate statements by Albright's former off-site supervisor and two former co-workers that he was observed "sleeping" or "sleepy" at work, and had arrived at work after his scheduled start time on occasion; and that the respondent did not investigate the nature and extent of complainant's and Albright's actual computer and warehouse experience, but instead relied upon their responses to interview questions to evaluate this experience.
However, these actions are consistent with the attributes of a structured selection/interview process, i.e., information external to the process is not sought or considered in order to subject each candidate to the same evaluation opportunities and experience. Moreover, the record does not establish that respondent's selection of this type of process was made after the information about Albright was received, i.e., the record does not establish that the receipt of such information could have influenced the type of selection/interview process chosen by respondent. Finally in this regard, the issue is not whether the selection process utilized by the respondent was, from a human resources standpoint, an optimal one, but instead whether, as structured and implemented, it was a discriminatory one.
Here, the record shows that the process was age-neutral, the interview questions were reasonably related to the position's primary duties and responsibilities, and the scoring of the complainant's and Albright's responses was consistent with their content.
Even if, as the complainant implies, his computer experience was as extensive, and his computer skills as developed, as Albright's, this is not the impression he created through his application or his responses to the interview questions. On his application, the complainant indicated only that he was familiar with Windows 95, whereas Albright indicated he was familiar with Windows NT, GTEAMS, Microsoft Excel, Microsoft Outlook, and Windows 95. An objective evaluation of their interview responses shows that, of the eleven questions related to GTEAMS, the computer system utilized in the warehouse, eight technical and three situational, the complainant answered four of these correctly and Albright answered seven correctly.
The fact that Nickleby was hired by Verizon in 1998 as a supply specialist without prior GTEAMS knowledge or experience does not demonstrate, as the complainant argues here, that Verizon's selection of GTEAMS knowledge/experience as a selection criterion for the material handler positions in 2001 demonstrates pretext. The record does not establish that, in 1998, in contrast to 2001, GTEAMS was an integral part of Verizon's warehouse operations, that it was realistic at that time to expect those competing for a supply specialist position to have significant experience with GTEAMS, or that any of the candidates competing with Nickleby had such experience. The record does not show that the circumstances of the two hires was sufficiently similar to permit a meaningful comparison in this regard.
Moreover, the complainant demonstrated, despite his many years of warehouse experience for Citizens, a narrow understanding of, and familiarity with, the overall warehouse operation. In several of his interview responses, he essentially stated his unfamiliarity with the relevant operation and indicated that, if he were presented with a problem relating to that operation, he would ask Beverly Crass for assistance or refer the problem to her. Since it was likely, given the reduction of the number of material handler positions to two, that only one material handler would be present in the warehouse on occasion, it was reasonable for respondent to regard familiarity with the overall warehouse operation as an important selection criterion.
In addition, although the complainant may have understood the importance of customer service, his responses demonstrate that he did not articulate this understanding very effectively during his interview, and provided less detail and insight than did Albright.
Complainant also argues that pretext is demonstrated by the fact that, after Albright left the material handler position, not long after the hire at issue here, the respondent did not appoint the complainant to the position. It is, however, not clear from the record, since, at the time of hearing, Crass was the only material handler employed in the Rhinelander warehouse, that this vacancy was ever filled on a permanent basis, or, given the posting/bid requirements of the applicable collective bargaining agreement, that the complainant would have been eligible for appointment.
It should finally be noted that the fact that Crass, age 52, was the top-ranked candidate tends to show that Nickleby and White were not motivated by age in making the subject hiring decisions.
The complainant points out that Crass's age is not part of the hearing record, and argues that Respondent's Exhibit A, which sets forth Crass's date of birth and which was attached to the respondent's post-hearing brief, should not be permitted to become part of the record. However, at hearing, the parties stipulated (Tr. at 29:20-25; 30:1-4) that Crass's date of birth would become part of the hearing record once it was provided by respondent.
cc:
Attorney Victor M. Arellano
Attorney Sabrina C. Spitznagle
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