EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MONONA AVENUE
Madison Area Technical College
Case No. 20256
A complaint was filed with the Madison Equal Opportunities Commission (MEOC) on March 2, 1984 alleging discrimination on the basis of age in regard to employment, specifically in regard to failure or refusal to hire.
Said complaint was investigated by Mary Pierce of the MEOC staff and an Initial Determination dated June 14, 1984 was issued concluding that probable cause existed to believe that age discrimination had occurred, as alleged.
Conciliation failed or was waived and the matter was certified to hearing. A hearing was held commencing on November 13, 1984. Based upon a review of the record, the Examiner enters the following Recommended Findings of Fact, Conclusions of Law and Order:
RECOMMENDED FINDINGS OF FACT
a. A Bachelors degree in Education;
b. A Ph.D. in Curriculum and Instruction;
c. A Masters Degrees in each of the following four areas:
Teaching-English Language, Library Science, Instructional Technology, Educational Administration.
RECOMMENDED CONCLUSIONS OF LAW
That this case be and hereby is dismissed.
The Supreme Court's decision in Aikensl makes an analysis of the prima facie case unnecessary. It may, for arguments sake, simply be presumed that the Complainant met her interim burden and the focus is then on whether she met her ultimate burden to prove that age was a (though not necessarily the sole) substantial or determining factor in the Respondent's failure or refusal to hire her.
The analysis must include an examination of the reasons articulated by the Respondent for its action(s) and then an examination of whether the Complainant has shown those reasons to be pretextual and that age bias - at least in substantial or determining part - motivated the Respondent.
I. Respondent's Articulated Reasons
The Respondent's essential reasons for not hiring the Complainant were purely subjective and were based on the impression that Hernandez had, as a result of the applicants' respective interviews, that Knight could better get along with co-workers and others than Lindas could.
II. Complainant's Attempt to Show Pretext
Where subjective factors are involved in selecting one applicant over another, it is particularly important to carefully scrutinize those subjective factors to assure that they are not a smokescreen for unlawful discrimination. And it is also important to view the totality of the circumstances in order to determine whether the Complainant has met her ultimate burden of establishing age discrimination by a preponderance of the evidence.
Although this Examiner finds that some of Hernandez' concerns were really quite trivial in isolation - particularly her concern about the way the Complainant handled her papers at the interview - the bottom line is that Knight came across overall as a person who could better get along with others than the Complainant in a job where the ability to get along with others was important. And one of the Complainant's own references, Dr. Black, reinforced that impression such that this Examiner finds Hernandez' impression to have been an honest one and not pretextual of age discrimination.
In the absence of the independent corroboration that the Complainant had difficulty in getting along with others, the Respondent would have had a much more difficult time defending against the Complainant's claim.
The Complainant attempts to argue that the reference checks are irrelevant to the liability stage. Essentially, the Complainant argues that Hernandez' had made her decision to hire Knight prior to the reference checks, and that the decision was age-biased. Therefore, the Complainant's argument is that she proved age discrimination in the selection process and the burden of proof then shifts to the Respondent to show why it should be relieved of its obligation to afford make-whole relief to the Complainant (and the reference checks would only be relevant, if at all, to the remedy issue).
The Complainant's logic is correct, but it can only be applied if the evidence supports a finding that the selection process was unlawfully age-biased. However, the Complainant did not carry her burden of proof to show that the Respondent's selection of Knight was age-biased.2 The issue turns on Hernandez' credibility as to why she chose Knight.
The Examiner finds, despite some apparent incongruencies3 in her reasons given for the decision to hire Knight, that Hernandez' testimony is credible insofar as it was Hernandez' overall belief - based on the interviews - that Knight had a warmer and more professional approach to the interview than the Complainant; i.e., that Knight would better be able to work with and get along with others. The reference checks of the candidates, while not directly a factor in Hernandez' decision, are nevertheless probative of the credibility of Hernandez' interview impressions.4
I do reject, however, the Respondent's contention that Knight and the Complainant were equally qualified in terms of education and experience. That they were both adequately qualified for the job in terms of education and work experience did not grant the Respondent a license to ignore the Complainant's relative strengths. The Complainant had a more advanced knowledge of statistics, she had previously been involved in a greater number of statistical studies and had more ideas than Knight about further adult basic education studies that could be conducted. Although Knight was a more accomplished typist than the Complainant, the Complainant had the overall advantage in job-related education and work experience.
Nevertheless, given that both candidates were adequately qualified for the job, it was not improper in this case for Hernandez to value Knight's greater ability to get along with supervisors and others more highly than the Complainant's greater academic and experience strengths.
Signed and dated this 11th day of March, 1985.
EQUAL OPPORTUNITIES COMMISSION
Allen T. Lawent
1U.S. Postal Service of Governors v. Aikens, 103 S. Ct. 1478, 31 EPD par. 33,477 (1983). Aikens makes clear that once all the evidence has been let into the record (i.e., the case has proceeded to completion without being dismissed via an interim motion), the analysis should focus on the Complainant's ultimate burden of proof, not the interim burden.
2The Complainant also attempted to show that a William Woods, 60, previously employed by the Respondent, should have been considered for the testing project assistant position in accordance with the Respondent's affirmative action plan. The evidence does not support that the Respondent had any affirmative action obligation to consider Woods, nor that its failure to consider Woods was in any way age-biased. While Woods may have been entitled to some special affirmative consideration had he applied, the fact is that he did not apply for the vacancy at issue.
3See discussion of incongruencies on pages 22 - 25 of the Complainant's brief; although the Examiner does not specifically adopt the Complainant's interpretation of the meaning of the incongruencies between Complainant's Exhibit 24 and the Complainant's testimony at hearing (Transcript, Vol. II, pp. 41 - 42).
4Hernandez also checked with two persons at MATC who had previously worked with the Complainant: Dean Wessels who gave the Complainant a very positive reference and Sharon Lembke who believed the Complainant was technically very competent but would have difficulty following supervision.