Kumpf v. Labor & Industry Review Com'n
| Decision Date | 23 February 1989 |
| Docket Number | No. 88-0833,88-0833 |
| Citation | 439 N.W.2d 645,149 Wis.2d 399 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. William J. KUMPF, Petitioner-Appellant, v. LABOR & INDUSTRY REVIEW COMMISSION, Respondent. |
| Court | Wisconsin Court of Appeals |
AFFIRMED.
Appeal from an order of the circuit court for Dane county: SUSAN R. STEINGASS, Judge.
Before GARTZKE, P.J., EICH and SUNDBY, JJ.
William Kumpf appeals from an order affirming the decision of the Labor and Industry Review Commission that Lincoln Chicago Corporation did not discriminate against him because of age with respect to its failure to hire him as a sales manager at its Madison office.
In this state, no employer may discriminate against any individual on the basis of age. Sec. 111.321, Stats. The prohibition applies to individuals age forty or over. Sec. 111.33(1). Kumpf was fifty-eight in 1983. He challenges the sufficiency of the evidence for LIRC's finding that Lincoln Chicago's failure to hire him was for a nondiscriminatory reason. Our review of that issue is limited to whether substantial evidence in the record supports that finding, sec. 227.20(6), Stats., and we must sift the record for evidence which supports the agency's decision. Tatum v. LIRC, 132 Wis.2d 411, 417, 392 N.W.2d 840, 842 (Ct.App.1986). We conclude that it does, and we therefore affirm.
LIRC found that until August 24, 1983, Lincoln National Sales Corporation had four sales agencies in four cities. Each agency was a corporate subsidiary of Lincoln National. Kumpf was president of the Madison subsidiary. The presidents of the other subsidiaries were John Sutter, age forty-two, Robert Parrott, age thirty-five, and William Reilly, age fifty-one. The president of Lincoln National was Orin Steinhaus. On August 24, 1983, the four agencies merged and became Lincoln Chicago Corporation, the employer in this proceeding.
On August 15, 1983, Kumpf learned that his agency would be merged with Lincoln Chicago. The next day he was notified that because of the merger, he would be removed as president and that a special meeting of his agency's board of directors would be held on August 24, 1983. On August 16, 1983, Kumpf talked to Steinhaus. As a result of that conversation, Kumpf was convinced that he would not be retained as a sales manager. Kumpf then told his assistant, Dennis Sammons, to apply for the job. Sammons, age thirty-eight, applied for and was appointed to the position of sales manager of the Madison office. Kumpf did not ask Steinhaus for the position of sales manager on August 16, 1983 or any time after that date.
During the reorganization planning of the merger, because of Kumpf's termination as president of the Madison subsidiary, it was decided that he would be offered a retirement sweetener. Acceptance of this sweetener would have precluded him from working for Lincoln Chicago. Kumpf was never considered for the position of president of Lincoln Chicago, although he wanted that position. He was not considered for the position of sales manager for the Madison area.
On August 24, 1983, Steinhaus became president of Lincoln Chicago. The same day, Kumpf appeared before and advised his agency's directors that he was applying for the presidency of Lincoln Chicago. He made no mention at the board meeting about a sales manager position.
LIRC found that Kumpf was not interested in the sales manager position and said he would not have taken it if it had been offered to him. He nevertheless contended that because Parrott and Sutter were offered sales manager jobs when their positions were terminated and he was not, Lincoln Chicago's failure to offer him the position resulted in age discrimination. LIRC found that Kumpf failed to show he was not considered for the job of sales manager on account of his age.
LIRC found that between August 16, 1983, when Kumpf learned the details of the reorganization, and August 26, 1983, when Steinhaus decided to hire Sammons as the Madison sales manager, Kumpf displayed open animosity toward Steinhaus. 1 LIRC found that Lincoln Chicago's failure to offer Kumpf the job of sales manager in Madison was not based on his age. Steinhaus selected Sammons for the position because Steinhaus believed that Sammons was qualified, knew that Kumpf was displaying personal animosity toward him and reasonably believed that Kumpf was not interested in the position.
Kumpf contends that LIRC erred when it focused on the August 26, 1983 decision to hire Sammons rather than on the failure to offer the Madison sales manager position to Kumpf before that date. He asserts that sales manager positions were offered to Sutter and to Parrott before the decision was made to hire Sammons and before Steinhaus learned of Kumpf's animosity. As he puts it, prior to August 26, 1983, the employer "affirmatively offered Parrott and Sutter sales manager opportunities without doing the same for him," and "personal animosity could not have been the basis for Lincoln Chicago's treatment of the appellant prior to August 26, 1983 because it is undisputed that Steinhaus first learned of the animosity on that date." Consequently, Kumpf contends that he was discriminated against on account of his age before Sammons was hired.
LIRC made no express findings as to the exact dates that sales manager positions were offered to Sutter and Parrott. The lack of findings with respect to Sutter is immaterial, since he was forty-two years old at the time and also a member of the class protected against age discrimination. The implication of LIRC's findings is that on the same day that sales manager positions were offered to Sammons and Parrott, the decision was made not to offer the Madison position to Kumpf. Substantial evidence of record supports this implied finding.
Steinhaus testified that on August 26, 1983 he offered a sales manager position to Parrott. Parrott testified to the same date. 2 Steinhaus stated that he would have considered Kumpf for a sales manager position until, but not after August 26, 1983. Steinhaus said he first heard of Kumpf's opposition to the merger on that day. He knew from the minutes of the August 24, 1983 meeting that Kumpf had applied for his job as president, and two men who attended that meeting told him that it "did not go very well, [and was] very antagonistic and bitter...." He had received Sammons' letter application (dated August 17, 1983) for the position. Because that letter showed that a copy was mailed to Kumpf, Steinhaus inferred that Kumpf had no interest in the position. The same day, August 26, Steinhaus called Sammons for an interview.
Kumpf argues that under the "test" established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), and applied in Puetz Motor Sales, Inc. v. LIRC, 126 Wis.2d 168, 376 N.W.2d 372 (Ct.App.1985), Lincoln Chicago discriminated against him on the basis of age.
Those cases do not establish a test or appellate standard of review. They describe only the basic allocation of burdens and order of presentation of proof in employment discrimination cases. Puetz, 126 Wis.2d at 172, 376 N.W.2d at 374. If the complainant proves a prima facie case, a presumption of discrimination arises. To rebut the presumption, the employer need only articulate a nondiscriminatory reason for its action. The complainant may then prove that the articulated reason is a pretext for discrimination. The ultimate burden of persuading the trier of fact of discrimination remains with the complainant. Id. at 172-73, 376 N.W.2d at 374.
" U.S. Postal Service Bd. of Govs. v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)).
The parties developed their record without adhering to the prima facie case method. At the end of the hearing, LIRC had all the evidence it needed to decide the ultimate issue of discrimination, without employing the three-stage analysis. It proceeded directly to decide that issue, and properly so. U.S. Postal Service, 460 U.S. at 715-16. "A plaintiff can prove discrimination by direct or circumstantial evidence or by making the required showing under McDonnell Douglas." Glamann v. St. Paul Fire Ins., 140 Wis.2d 640, 647, 412 N.W.2d 522, 525 (Ct.App.1987), rev'd on other grounds, 144 Wis.2d 865, 424 N.W.2d 924 (1988). For us to employ an analysis ignored at the hearing and ignored by LIRC would be supererogatory. We decline to undertake it.
We therefore affirm the order of the trial court.
By the Court.--Order affirmed.
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