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766 Age discrimination
766.02(2) Finding of no probable cause
No probable cause was found on the basis of sex or age as to respondent’s decision to use promotion rather than reallocation as a method for moving employes to a higher classification level in light of management’s understanding that the union opposed reallocation and the absence of any indication that the lengthy promotional procedure, which resulted in decisions to hire 1 of 2 female candidates and 7 of 8 candidates older than 40, was undertaken because of the complainant’s age or sex. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No probable cause was found on the basis of sex or age as to respondent’s decision not to select complainant, a female over the age of 40, where information beyond the raw scores from interviews was relied upon in making the final decisions whether to promote a particular candidate, this information related to a large extent to the performance or work record of the candidate, complainant’s performance was marginal and other employes who were promoted did not have similar performance problems as complainant. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No probable cause was found on the basis of sex or age as to respondent’s decision not to assign complainant, a female over the age of 40, to respond to a herbicide drift that occurred within complainant’s region of the state. Complainant lacked basic knowledge about the herbicide involved and the person selected by respondent to respond was the expert in the Division. The person selected was older than complainant, had expressed a desire to work alone and management had a goal of sending only one person in response to a complaint. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
There was no probable cause to believe respondent discriminated against complainant on the basis of his age, national origin or ancestry and/or race with respect to providing him computer training where complainant, who was born in Mexico, was employed as the sole LTE in the office, there were insufficient computer stations for even the permanent employes and complainant had the lowest priority for training behind the permanent employes. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
There was no probable cause to believe respondent discriminated against complainant on the basis of his age, national origin or ancestry and/or race with respect to the decision to terminate his employment where complainant, who was born in Mexico, was employed as the sole LTE in the office, although respondent criticized complainant's work performance, he actually was terminated because there was a reduction in the workload. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
No probable cause was found with respect to the decision not to select the complainant for a vacant position where the questions used by the interview panel were job-related, the questions were asked of all the candidates, the answers were scored using a pre-established benchmark rating system, the actual scores awarded were based on the candidates' responses, the panel members did their ratings individually and the scores were not altered. There was no evidentiary support for complainant's contentions that younger workers had more experience with computers and that an interview question relating to knowledge of computers would have a disproportionate impact on older workers. Jahnke v. DHSS, 89-0094-PC-ER, 89-0098-PC, 12/13/90
No probable cause was found with respect to advice given the complainant regarding the effect of certain legislation on his retirement options where the reasons given by respondent for its statutory interpretation were legitimate and non-discriminatory and the respondent provided the same information to anyone who raised the same issue. Prill v. DETF & DHSS, 85-0001-PC-ER, 12/15/89
No probable cause was found with respect to a decision not to hire the complainant, a 42 year old female, for assistant professorships where the selection process resulted in hiring four out of six females and three of the six persons hired were in the protected age category. The successful candidates had more relevant degrees, had more recent experience teaching in the field, for the most part had more teaching experience, and had better recommendations than the complainant. Chandler v. UW-La Crosse, 87-0124-PC-ER, 88-0009-PC-ER, 8/24/89
No probable cause was found with respect to a decision setting complainant's pay level where complainant's starting wage was more than his younger predecessor's ending wage and no wage pattern could be discerned indicating age bias. No probable cause was found with respect to complainant's allegation that he was forced to retire where the record indicated he had not been forced to retire. Schleicher v. DMA, 87-0019, 0169-PC-ER, 5/18/89
No probable cause was found with respect to various nonselection decisions where complainant failed to show that her experience, knowledge, interest and motivation or interview performance were actually superior to those of the successful candidates, that the hiring criteria were not properly related to the duties and responsibilities of the subject position, or that the criteria were not properly applied by the individuals with effective hiring authority. Complainant's statistical evidence presented a mixed picture at best. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
No probable cause was found with respect to two decisions denying reclassification of the complainant's position where the duties and responsibilities of the position did not appear to meet the requirements for classification at the higher level and, as to one of the decisions, the complainant acknowledged that her position did not merit reclassification. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
No probable cause was found with respect to the denial of data base training where respondent had provided complainant with micro-computer training even though it was not required. The micro-computer training was also more easily transferable to other positions than the data base training would have been. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
No probable cause was found with respect to a decision not to hire the complainant where there was nothing in the record from which to conclude that the respondent's explanation was not legitimate, the explanation was clearly non-discriminatory on its face and the complainant failed to show a relationship between respondent's actions and complainant's age. Ozanne v. DOT, 87-0107-PC-ER, 1/31/89
No probable cause was found with respect to a selection decision where there was no basis on which to conclude that the selection criteria were unreasonable, were not uniformly applied, or were not as respondent represented them to be or that the interviewing panelists' assessments of the candidates were not reasonable in view of the presentations of the candidates at the interviews and in view of the selection criteria. Larson v. DILHR, 86-0019-PC-ER, 86-0013-PC, 1/12/89
No probable cause was found with respect to a decision not to select the complainant, a 41 year old male, for a position of Laboratory Animal Caretaker 2 which included both animal and plant care, where the successful candidate, a 32 year old female, was qualified for the position, had more current work experience, had experience involving both animal and plant care and was formally educated in both animal science and horticulture. Complainant ranked first on the written examination and had extensive work experience in animal care. Krause v. UW-La Crosse, 85-0026-PC-ER, 1/22/87
No probable cause was found as to respondent's decision to terminate complainant's employment from a Laborer Special position where complainant's supervisor set high performance standards for all the employes he supervised, complainant's work filed to meet the supervisor's standards and the record failed to show that the complainant was treated differently than any other employe supervised by complainant's supervisor or that complainant's supervisor treated employes over the age of 40 any differently than employes under the age of 40. Podevels v. UW-Milwaukee, 84-0204-PC-ER, 3/13/86
No probable cause was found as to non-selection complaint where complainant's attire at the interview was inappropriately casual, where complainant's work examples were between 25 and 30 years old, some were on brittle newspaper and the examples were musty smelling. The successful applicant was 25 while the appellant was 53. Raschick v. UW-Eau Claire, 81-PC-ER-101, 11/21/84; affirmed by Burnett Circuit County Court, Raschick v. Pers. Comm., 85-CV-12, 6/18/86; affirmed by Court of Appeals District 1-II, Raschick v. DOJ & Pers. Comm., 86-1320, 4/21/87
No probable cause was found where complainant had argued he was forced into early retirement because of harassment from his supervisors where complainant and his supervisor had disagreed as to the importance of complainant's program, complainant was reluctant to respond to supervision and complainant made no effort to establish the ages of his co-workers. Hartl v. DILHR, 82-PC-ER-126, 7/5/84
For a complaint arising out of a hiring decision, no probable cause was found where the successful candidate and the complainant had generally equivalent work experience and the content of their respective answers during the oral interview were approximately equal but where the successful candidate's manner of presentation was more "dynamic" and indicative of the supervisory traits necessary for the position. A prior designation of the successful candidate to fill the position on an acting basis did not indicate pretext. Meyett & Rabideaux v. DILHR, 80-PC-ER-140, 81-PC-ER-2, 4/15/83
No probable cause was found in decision not to hire complainant as an instructor in the geography department of UW-Oshkosh where an initial decision was made before complainant had filed a written application, the process was then reopened and complainant was still not hired. Four members of the department's faculty who were also members of the selection committee all had poor opinions of the complainant based on complainant's earlier experience as a teacher there. In addition, nothing in the materials submitted to the selection committee indicated that complainant had been active in the geography profession during the previous 10 years. Thalhofer v. UW-Oshkosh, 79-PC-ER-22, 9/23/81; affirmed by DILHR, 11/7/83; affirmed by LIRC, 2/16/84
No probable cause was found where there was limited statistical evidence which did not indicate that a hearing on the merits would support a finding of a pattern or practice of age discrimination, it was noted that the appointing authority has considerable discretion under the civil service law as to whom to appoint, and the complainant had been encouraged to take the test for the position by one of the supervisors. Andrews v. UW, 80-PC-ER-14, 10/21/81
766.03(1) Finding of discrimination
Respondent discriminated against complainant, 56, in not selecting him for the position of acting director of administrative computing, where complainant’s credentials in computer science were far superior to those of the person selected, who was 37 years old, had very little formal training or education in computer science and had far less extensive supervisory experience than complainant. Complainant’s job performance with respondent had been exemplary. Respondent contended that the person hired was a better communicator and had better interpersonal skills, but complainant established that his skills in these areas were at least on a par. Chiodo v. UW (Stout), 90-0150-PC-ER, 6/25/96; affirmed by Dane County Circuit Court, UW v. Wis. Pers. Comm., 97-CV-3386, 9/24/98
The respondent's decision to send someone other than the appellant to law enforcement school constituted age discrimination, and the agency's stated reasons for sending him were concluded to be pretextual, where the age of the person sent was 32, there was very little evidence offered in support of the respondent's assertion that the younger employe was chosen because he got along better with others than the complainant, and the complainant's supervisors told him on a number of occasions that age was a factor in their decision, and the explanation that these statements were made to "cushion the blow" to the complainant of the rejection were not convincing. [See also 760.2 for discussion of mixed-motive aspect] Conklin v. DNR, 82-PC-ER-29, 7/21/83
766.03(2) Finding of no discrimination
Complainant, 56, failed to establish age discrimination with respect to the hire of a 24 year old candidate, where the hiring decision turned on factors such as ability to listen and being a team player, rather than on training and experience. The Commission rejected complainant's contentions that pretext was demonstrated by developing the position description in a way as to favor younger candidates, by the "tone" of complainant's interview, by a comment to complainant (and not to any of the other interviewees) that she had 10 to 15 minutes to make a presentation in response to a question, by the failure of the interviewers to solicit additional information about one of complainant's responses and by the action of the interviewers to accept the successful candidate's answer to one question as correct. Lundquist v. UW, 95-0081-PC-ER, 9/23/98
Complainant, 48, failed to establish age discrimination with respect to hiring decisions for four positions of LTE Security Officer, even though he had extensive experience performing somewhat similar duties for the respondent for a period of approximately 10 years that ended approximately 5 years before the hiring transactions in question, where there had been an intervening and fundamental change in the orientation of the work unit from a police department to a security department and complainant did not have a good interview with regard to the newly stressed criteria of communication and interpersonal capabilities. There was no evidence to contradict the interviewer's testimony that she requested the ages of the interviewees in order to conduct a criminal record inquiry. The fact that two of the chosen candidates were over 40, and within 6 years of complainant's age, supported respondent's position that age was not a motivating factor in its hiring decision. Ruport v. UW (Superior), 96-0137-PC-ER, 9/23/98
Respondent did not discriminate against complainant based on age with respect to a Program Assistant 1 selection decision where computer skills were a key selection factor, complainant's resume did not mention computer skills or knowledge, his interview notes did not mention computer skills or knowledge, and the successful candidate's resume and interview notes emphasized that knowledge. Ledwidge v. UW-Madison & UWHCB, 956-0066-PC-ER, 5/20/98
No discrimination was found as to complainant’s claim of age discrimination arising from the time it took for her position to be reclassified from Agrichemical Specialist-Entry to the Agrichemical Specialist-Developmental level, where complainant was the first and only person to have been reclassified between these two levels and, on balance, comparison to employes who were reclassified under the prior classification structure was of little value. Even if the 11 other employes reclassified under the previous structure were considered to be similarly situated, there was insufficient support for a finding of discrimination where the median reclass period for all 12 employes was 18.5 months. Four of the 12 employes were over 40 when they were hired and two took longer than the median for their reclassifications and two were reclassified in less than the median of 18.5 months. In addition, at the time of her first evaluation, approximately 21 months after she began working, her supervisor identified performance difficulties and concluded that complainant needed a lot of additional training. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
Respondent did not discriminate against complainant on the basis of age in connection with its refusal to extend his retirement date for approximately 4 months where respondent was unable to extend complainant’s retirement date because of budgetary constraints and there was insufficient evidence on which to base a finding that respondent had an opportunity to hire the complainant into one of the other positions in the district that were filled during the same time frame. Lorscheter v. DILHR, 94-0110-PC-ER, 4/24/97
No discrimination was found on the bases of age, national origin/ancestry or sex, nor was FEA retaliation found, relative to the decision not to retain complainant as a faculty member in respondent's Industrial Engineering Department where complainant did not complete her Ph.D. by the date to which she had contractually agreed and where respondent had concerns about complainant's teaching effectiveness, the evidence of which included routine student evaluations as well as a petition filed by a group of students with a dean. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
No discrimination based on age or handicap was found regarding respondent's decision to permit three other employes to complete recruit training school before the complainant, where complainant never requested to attend the school on a full-time basis. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95
No discrimination based on age or handicap was found regarding respondent's decision to deny complainant's request for refresher training in firearms, where complainant was not eligible for such training. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95
No discrimination based on age or handicap was found regarding respondent's decision to terminate the complainant's employment due to negligence in carrying out his duties as a limited term police officer, failure to follow instructions and making false statements. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95
Complainant, a correctional officer, failed to sustain her burden of showing age or sex discrimination relating to the decision to terminate her probationary employment, where 8 witnesses testified that complainant's job performance was poor. Snee v. DHSS, 92-0030-PC-ER, 4/17/95
Complainant failed to establish that respondent's decision not to select the complainant for a Regulation Compliance Investigator position was based on age or sex where the successful candidate 1) had more persuasive and conciliatory communication and conflict resolution skills, 2) had superior interest in the position, regulatory program experience and initiative, and where complainant had not shown good judgment in comments he had made relating to his prospects for obtaining a position prior to the interviews. Hinze v. DATCP, 91-0085-PC-ER, 12/28/93
Respondent did not discriminate against complainant on the basis of his age when it failed to promote him to one of four vacancies and the following did not present evidence of pretext: respondent's reliance on work experience criteria, respondent's consideration of complainant's past work performance problems, respondent's failure to solicit references from complainant's supervisors, respondent's failure to consult complainant's personnel file, respondent's failure to promote complainant on five prior occasions, and respondent's request for additional candidates for consideration after promotional offers were declined by two individuals. A statement by a member of one of the interview panels to the effect that complainant had a few more gray hairs than the last time they met was construed as an attempt at initiating casual conversation rather than as direct evidence of discrimination. Trimble v. UW-Madison, 92-0160-PC-ER, 11/29/93
There was insufficient evidence to find complainant was constructively discharged by respondent on the basis of age where the supervisor's criticisms of complainant were based solely upon work performance. Betz v. UW-Extension, 88-0128-PC-ER, 12/17/92
Complainant failed to show that respondent's rationale for its hiring decision was a pretext for age discrimination where complainant had a "feeling" during the interview he was being discriminated against, he didn't believe a ten minute interview was sufficient, and he told the interviewer he had a lot of experience, which purportedly would have led the interviewer to conclude complainant was over 40. The interviews were conducted in a uniform manner, the only available information shows that the candidates selected appeared to have been better qualified, and respondent's expert offered unrebutted testimony that respondent's hiring statistics did not show age discrimination. McCoic v. Wis. Lottery, 88-0157-PC-ER, 12/17/92
Respondent did not discriminate against complainant on the basis of age when it failed to hire him for one of fifteen Conservation Warden 1 positions. Complainant established a prima facie case of age discrimination but failed to show respondent's explanation, i.e. that complainant did not score high enough in the interview, was a pretext for discrimination. There was inadequate statistical evidence in the record to show disparate impact, and, with respect to disparate treatment, there was no evidence regarding the qualifications of any of the candidates other than complainant. Respondent's action of identifying those candidates who would move on to the next stage in the selection process was consistent with respondent's usual practice for group referrals. Wojtalewicz v. DNR, 90-0153-PC-ER, 12/17/92
The greater weight of the credible evidence showed complainant was terminated during her probationary period due to her poor work performance and not to her age. Complainant did not establish that her work performance was satisfactory or the age of the employe appointed to replace her. Engel v. UW-Oshkosh, 89-0103-PC-ER, 8/26/92
Respondent's decision to lay the complainant off was based on budget and program considerations, not on complainant's age. Respondent's failure to recall the complainant was based on the unavailability of a vacant position in the proper classification, not on complainant's age. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 12/30/86
Respondent's reasons for laying off the complainant and not recalling him were not pretextual where the layoff resulted in a net reduction of one position and a dollar savings as well as a sharing of expertise between two disciplines and there was no position to which complainant could be recalled because his former position was not recreated and complainant was not required to be recalled to those positions which did become available. Respondent's decision to lay off the complainant was based on budget and program decisions. The failure to recall the complainant was based on the unavailability of a vacant position in the proper classification. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 12/30/86
Complainant established a prima facie case with respect to the decision to lay him off and not to recall him, where he was over 40, was adversely affected by the decisions and an inference of discrimination could be drawn since younger persons were hired to perform the duties previously performed by complainant. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 12/30/86
No age discrimination was found with respect to complainant's early retirement from his position as Assistant Director of Utilities in charge of the power plant and the maintenance mechanics. Respondent informed the complainant that his position was to be eliminated via reorganization and that it wanted someone with more expertise and with an engineering degree. Following complainant's decision to retire rather than to be laid off, respondent hired a younger employe with an engineering degree and with the ability to obtain an engineer's license. Evidence regarding respondent's contention that it was dissatisfied with complainant's performance was somewhat contradictory but there was not a preponderance of evidence that respondent's performance concerns were pretextual. There was also no persuasive evidence that the reasons for reorganizing the power plant or for requiring an engineering degree for the new position were pretextual McGrath v. UW-Parkside, 83-0090-PC-ER, 9/26/85
No discrimination was found where respondent decided not to reinstate complainant, a 56 year old, where the decision was based on respondent's desire to deal with a problem of sick leave abuse and complainant had a record of such abuse. In the companion appeal, the reinstatement decision was found to have been an abuse of discretion. Seep v. DHSS, 83-0032-PC & 83-0017-PC-ER, 10/10/84; affirmed in part, reversed in part, by Racine Circuit Court, Seep v. State Pers. Comm., 84-CV-1705, 84-CV01920, 6/20/85; supplemental findings were issued by the Commission on 2/2/87; affirmed in part, reversed in part by Court of Appeals District 11, 140 Wis. 2d 32, 5/6/87; [Note: the effect of the Court of Appeals decision was to affirm the Commission's decision in all respects]
In a complaint arising from a hiring decision, no discrimination was found where respondent reasonably concluded that complainant was not as well qualified as those sixteen applicants ultimately hired for janitorial positions and where the record failed to indicate the ages of those applicants certified and those hired. Vesperman v. UW-Madison, 81-232-PC, 81-PC-ER-66, 3/31/83
No age discrimination was found where the complainant took a multiple choice exam and was certified for a number of program assistant positions but did not receive an appointment. The Commission noted that the hiring decisions were separate and independent and that there were legitimate reasons for each selection. Markham v. DHSS, 79-PC-ER-151, 2/9/82; affirmed by Dane County Circuit Court, Markham v. DHSS & State Pers. Comm., 82-CV-1187, 8/20/86
766.04 Prima facie case
Complainant established a prima facie case as to a hiring decision where he was 48 years old, he had extensive experience performing somewhat similar duties for the respondent during a period of approximately 10 years, he was one of 12 applicants for four vacancies, he was not selected and all four successful candidates were younger than complainant, including two candidates in their early 20s. Ruport v. UW (Superior), 96-0137-PC-ER, 9/23/98
Complainant failed to establish a prima facie case of age discrimination relating to two Building and Grounds Superintendent 4 non-selection decisions where the ages of the successful candidates were not contained in the record. Ledwidge v. UW-Madison & UWHCB, 96-0066-PC-ER, 5/20/98
Complainant, 52, failed to establish a prima facie case of age discrimination with respect to the decision not to select him for a vacancy where the successful candidate was nearly three years older than complainant and where there was no other evidence that would create an inference of age discrimination. Respondent’s motion for summary judgment was granted. Starck v. UW (Oshkosh), 97-0057-PC-ER, 11/7/97
A prima facie case of age harassment requires a showing that 1) complainant is a member of the protected class, 2) she was subjected to unwelcome verbal or physical conduct of a nature based on the protected class, 3) but for the complainant's protected class, she would not have been subjected to such conduct, 4) the conduct complained of was sufficiently severe or pervasive that it unreasonably interfered with her work performance or created an intimidating, hostile or offensive work environment and 5) where complainant seeks to hold respondent liable for a hostile work environment created by a supervisor, complainant must show respondent knew or should have known of the harassment yet failed to take prompt, remedial action, citing Carlson v. The Three Star, Inc., (LIRC, 8/27/86). Smith v. UW-Manitowoc County, 93-0173-PC-ER, 4/17/95
No age or sex discrimination occurred with respect to the decision to discharge complainant, who worked in a clerical capacity, where she failed to show she performed her job duties satisfactorily and the replacement employes were also in complainant's same protected category. Smith v. UW-Manitowoc Co., 93-0173-PC-ER, 4/17/95
Complainant failed to establish a prima facie case of failure to hire because of age, national origin or ancestry and/or race where complainant offered no evidence that a vacant position existed, that he applied for it, that he was certified and considered, that he was rejected, or that there were circumstances which gave rise to an inference of discrimination. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
Complainant failed to establish a prima facie case of age discrimination regarding a selection decision where the successful candidate was also in the protected age group, there was no indication the employer was aware of the age of either candidate, and there was no basis to conclude there was a significant difference between the two in terms of youthfulness of appearance. Ludeman v. DER, 90-0108-PC-ER, 12/29/92
Complainant failed to show that an inference of age discrimination could be drawn from a hire where the age of the successful candidate was not indicated on the record. Ozanne v. DOT, 87-0107-PC-ER, 1/31/89
Complainant established a prima facie case with respect to the decision to lay him off and not to recall him, where he was over 40, was adversely affected by the decisions and an inference of discrimination could be drawn since younger persons were hired to perform the duties previously performed by complainant. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 12/30/86
Complainant, who was over 40 years of age at the time of her layoff, failed to establish a prima facie case of age discrimination where there was no evidence as to the ages of the two teachers who were not selected for layoff. Cowie v. DHSS, 80-PC-ER-115, 4/15/84
766.06 Statistical analysis
Where application of the Mann-Whitney-Wilcoxson ranked sum test to three sets of data from the employing agency's promotions over a three year period resulted in only one of the three probabilities being statistically significant, i.e. 5% or less, the Commission concluded that there was little evidence to suggest pretext after noting that other candidates for the promotions tended to have more extensive experience than complainant. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
It was impossible to draw conclusions regarding the respondents hiring practice where the complainant failed to provide data showing the age of the individuals who were considered for the positions. Ozanne v. DOT, 87-0107-PC-ER, 1/31/89
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.