DOCKET NO.

1. Complainant, Richard Hendricks was born on December 18, 1938. (Ex. 1). Hendricks graduated from St. Cloud State University with a four year Bachelor of Science degree in physical education, health education, science and business. (BH at 135; Ex. 101). Hendricks also completed a Masters of Science degree in 1970 from Mankato State in educational psychology and special education. (BH at 136). Hendricks spent the majority of his working career as an administrator and assistant business professor at the University of Minnesota’s Waseca (“UMW”) campus. The Waseca campus was an agricultural technical college and part of the University system. (BH at 46). Students came to UMW to obtain an agriculturally-related education. (BH at 79). Hendricks started the placement program at UMW and set up internships for students at various agricultural businesses. (BH at 50-51, 75-77). Hendricks was 55 years old in 1994.

2. Hendricks and his wife have lived in Janesville, Minnesota since 1963. Mrs. Hendricks has been employed by the Janesville-Waldorf-Pemberton School District as an elementary school teacher for approximately 25 years. (L.Hendricks at 424).

3. Keltgen Seed Company (hereinafter “Respondent” or “Keltgen”) was founded in 1977 by Keith Keltgen and five other persons to provide high quality seed products to farmers. (RO at 257-58). The primary focus of Keltgen’s sales has been hybrid corn seed. Keltgen also sells seed for soybeans, alfalfa, and sorghum. Keltgen’s sales spanned 10 to 13 states, including Minnesota, North and South Dakota, Nebraska, Iowa and Kansas. (Id.)

4. Keltgen employed district sales managers, who were responsible for particular geographic territories that typically spanned several counties. The district sales managers reported to regional sales managers, who in turn reported to the Director of Sales. (HJ at 557; EB at 656-57). District sales managers sold Keltgen’s products directly to Keltgen’s customers and they also worked to build their own sales pyramid by recruiting people throughout their territory to be “dealers”. (EB at 655-57). Dealers, who worked on an independent contract basis, would purchase seed from the district sales manager and sell it to farmers in the area. (HJ at 557; EB at 656, 658).

5. In 1984, Hendricks decided to take a sabbatical from UMW. Hendricks explained that one of the reasons he applied for the sabbatical was to get “more current” in what was happening in the agricultural industry. (BH at 152-55). Keith Keltgen, then General Manager of Keltgen Seed, encouraged Complainant to spend his sabbatical with Keltgen Seed Company as a district sales manager. Hendricks had developed a friendship with Keith Keltgen while Keltgen served on an advisory committee for UMW. (BH at 53). After interviewing with then regional sales manager, Rod Osthus, Hendricks was offered and accepted a district sales manager position. (Id.).

6. The territory Hendricks assumed consisted of five counties and parts of two other counties in South central Minnesota. (Ex. 124; HJ at 848-49; Ex. 151; HJ at 853-54). This territory included Janesville, Minnesota where Hendricks resided. (BH at 156). At the time Hendricks was hired to service this territory it was relatively undeveloped in terms of prior Keltgen sales. (IP at 974-75). When Hendricks started as a district sales manager there were only seven dealers in his territory. Through his efforts, Hendricks successfully developed a professional network of dealers. (RO at 271). When Hendricks left Keltgen, there were 28 dealers in his territory. (BH at 61).

7. In June of 1985, Hendricks was promoted to regional sales manager. (BH at 66, 163). Rod Osthus indicated that Complainant’s management and administration skills were important factors in selecting Complainant for the regional sales manager position. (RO at 347). As a regional sales manager, Hendricks was responsible for three states and supervised ten district sales managers. (BH at 67).

8. Hendricks received favorable feedback regarding his work performance as both a district sales manager and a regional sales manager. (BH at 68). Both Jensen and Osthus believe Hendricks demonstrated good sales, management and people skills while employed at Keltgen. (HJ at 559; RO at 271-75).

9. In 1986, at the end of his two year sabbatical, Hendricks decided to leave Keltgen and return to UMW. (RO at 287; Ex. 2). Osthus testified that he left the door open for Hendricks to change his mind before he left. (RO at 287). Although Hendricks concedes that nobody ever made him any assurances or promises regarding future employment, Hendricks believed he would always be able to return to Keltgen. Hendricks thought of Keltgen as an “ace” he always had. (BH at 81).

10. In 1987, Dow Chemical purchased Keltgen Seed. (HJ at 801-03). Dow Chemical manufactures various chemicals used in farming practices. (Id.; RO at 342-45). Dow Chemical subsequently joined with Eli Lilly Industries, another company involved in the manufacture of ag-chemicals, to form a subsidiary called DowElanco (HJ at 801-03; RO at 342-45). DowElanco used Keltgen Seed to distribute the genetically enhanced seed products it developed. (HJ at 803-05; RO at 342-45; IP at 978-79).

11. Keltgen as a company changed when it became part of a large agribusiness corporation. (RO at 283-84; HJ at 804). The company experienced rapid growth and it was no longer a small start-up organization operating out of a “crude warehouse facility.” (BH at 53; RO at 260).

12. DowElanco used Keltgen Seed to market and distribute its genetically enhanced hybrid seed products it had developed as part of its biotechnology research. (HJ at 803-05; IP at 978-79; RO at 342-45). Consequently, the Keltgen product line changed significantly from 1989 to 1994. (JK at 750-51). New hybrids and breakthrough products were introduced after 1989. In fact, only two of the seed lines offered by Keltgen in 1989 are among the 45 seed lines offered by Keltgen today. (JK at 750).

13. The Keltgen customer base also changed from the mid-1980s to the mid-1990s. The farmers who survived the difficult economic times of the mid-1980s were larger and more technically sophisticated. These farmers demanded more technical agronomic services, such as site specific recommendations, from Keltgen and its competitors. (JK at 753-54; IP at 975-77).

14. “Agronomy” is defined as “the application of soil and plant sciences to soil management and crop production: scientific agriculture.” (Webster’s II New College Dictionary 23 (1995)).

15. In 1988 Keith Keltgen left the company and Irv Parker became the General Manager of Keltgen Seed. (RO at 310; IP at 972). Parker directed the regional sales managers to hire more technical “agronomic-type” employees. (IP at 977-78).

16. Despite Parker’s directive, persons without agronomic backgrounds were periodically hired as district sales managers after 1989. (RO at 292-93; HJ at 829; LH at 924).

17. Hendricks continued working at UMW until December 31, 1992, when the Waseca campus closed. (BH at 79-80).

18. The first time Hendricks contacted anyone at Keltgen to inquire about the possibility of returning to work was late fall of 1992. (BH at 181). According to Hendricks’ wife, Hendricks never discussed returning to Keltgen until after he knew that the Waseca campus would be closed. (L. Hendricks at 442-43).

19. In 1992, Hendricks was offered and declined associate placement director positions at University of Minnesota campuses in Duluth, St. Paul and Morris. At the time, Hendricks and his wife did not want to relocate. (BH at 170-72). Hendricks’ belief that he would be able to return to Keltgen was a strong factor in his decision to decline the University positions. (BH at 179).

20. The role of the district sales manager changed from the mid-1980s to the 1990s. (JK at 753). In the mid-1980s the primary goal of a district sales manager was to sell product and recruit dealers. (JK at 757; HJ at 807-08). By the 1990s, district sales managers were expected to provide technical and agronomic consulting services and make site-specific recommendations on such topics as tillage practices, insecticides, fertilizers, and plant disease. (JK at 753, 757; EB at 654-656, 661-666; IP at 979-80). When Hendricks worked for Keltgen in the mid-1980s, technical questions regarding fertilization, soil election, and tillage practices were referred up to Rod Osthus or Keith Keltgen. (BH at 165-66). Answering technical questions was outside the parameters of Hendricks’ duties when he worked for Keltgen in the mid-1980s. (Id.)

21. The first territory for which Hendricks was considered was the southeast territory that would be vacant following the retirement of Russell Terbeest (hereinafter “Terbeest territory”). (HJ at 809-10; Ex. 123). In early 1993, Rod Osthus asked Howard Jensen to contact Hendricks regarding the possibility of Hendricks filling the Terbeest territory. (HJ at 811-12). At that time, Osthus was the Director of Sales and Jensen was the regional sales manager. (RO at 315-16). As the regional sales manager, Jensen was ultimately responsible for filling the Terbeest territory. (RO at 290-91; 323-24).

22. Beginning in March of 1993, Jensen stopped by Hendricks’ home on several occasions to discuss the district sales manager position for the Terbeest territory. (HJ at 814-15). Jensen was being pressured by his boss, Rod Osthus, to hire Hendricks. (HJ at 574, 812, 880-81; RO at 324). Jensen considered different reconfigurations of the Terbeest territory to include Janesville, Minnesota where Hendricks lived. (HJ at 814). Hendricks specifically told Jensen that he was not interested in moving out of Janesville. (BH at 186). During his visits, Jensen never questioned Hendricks with respect to his knowledge of plant diseases, or current fertilization and tillage practices. (BH at 243; HJ at 583).

23. In the end, Jensen hired another candidate for the district sales manager position for the Terbeest territory. (HJ at 829). It was Jensen’s opinion that Hendricks was not the best candidate for the position. (HJ at 813). Jensen believed that Hendricks was “out of the loop” with respect to changes in agricultural technology and that it would take a while for Hendricks to get up to speed. (HJ at 816-19). In addition, Jensen wanted the district sales manager to live within the Terbeest territory and Hendricks was unwilling to relocate at that time. (BH at 186-87). Janesville was approximately 90 miles outside the center of the Terbeest territory. (HJ at 827). Rod Osthus informed Hendricks that travel time into the territory was a deciding factor in the selection of the district sales manager position. (Ex. 117). Hendricks does not contend that this hiring decision was discriminatory.

24. The candidate chosen for the Terbeest territory district sales manager position, Dan Hogstad, lived inside the boundaries of the territory . (HJ at 829-30; Ex. 4). Mr. Hogstad did not have an agronomic background. (RO at 292-93; HJ at 829).

25. After being rejected for the Terbeest territory position, Hendricks was informed by both Osthus and Jensen that a sales territory to the north of Janesville would be opening up in about a year when Paul Peterson retired (hereinafter, “Peterson territory”). (BH at 188; HJ at 832; Exs. 3, 4). The Peterson territory included the following eight counties: Wright, McCloud, Sibley, Nicollet, Carver, Scott, Dakota, and Washington. (Ex. 125; EB at 650).

26. In a May 1993 letter to Hendricks, Rod Osthus described Hendricks as an “excellent candidate” for the Peterson territory. However, Osthus explained to Hendricks that “in the event that someone of equal stature surfaced, and they lived inside the territory, that person would have an advantage over you.” Osthus further stated that he could “make no promises” regarding employment at Keltgen. (Ex. 4)

27. On June 13, 1993, Hendricks took a sales position with Countryside Motors, a car dealership in Waseca, Minnesota. (Hendricks at 89-90).

28. On March 1, 1994, Hendricks sold his family cabin in order to be able to relocate to the Peterson territory if necessary. (BH at 94, 240). Hendricks informed both Jensen and Osthus that he sold his cabin and that he would be willing to relocate for the Peterson territory district sales manager position. (BH at 97, 195, 241; HJ at 590-91).

29. There was no overlap between the Peterson territory and the territory Hendricks serviced when he was with Keltgen in 1984-86. (Exs. 124, 126, 151). Hendricks did not know the key dealers within the Peterson territory. (BH at 202-03).

30. Ultimately, Hendricks was not selected for the Peterson territory vacancy and this hiring decision forms the basis of Hendricks’ claim. The candidate hired for the district sales manager position was Earl Barnaal. Earl Barnaal was 26 years old when he was hired by Keltgen. (EB at 623).

31. Earl Barnaal received a two-year Associate degree in agri-business from Wilmar Community College. (Ex. 102). Barnaal took courses in crop industry, insects, plant diseases, chemistry, fertilizers and crop management in addition to business-related courses. (EB at 672; Ex. 102). Barnaal also attended workshops and seminars on a variety of agricultural topics such as weed identification and herbicides. (EB at 705-08).

32. Prior to being hired as the district sales manager for the Peterson territory, Barnaal worked for two and one-half years as a seed salesman for Coop Country Farmers Elevators (a division of Cenex Land O’ Lakes). In addition to selling product, Barnaal also participated in troubleshooting, soil testing and making site specific product recommendations for customers. (EB at 675-77).

33. Following Coop Country, Barnaal moved to Glencoe, Minnesota and began working for Ag Specialists. (EB at 680). Ag Specialists’ office is located in Plato, Minnesota. Both Glencoe and Plato are located within the Peterson territory. (EB at 680-81; Exs. 122, 125). Ag Specialists sells a variety of agricultural products including seed, fertilizer and herbicide. (Id.) Barnaal was hired as an agronomist for Ag Specialists. Barnaal’s primary duty at Ag Specialists was the sale of seed, fertilizer and herbicide products. (EB at 681-82; Ex. 102). Ag Specialists was a dealer of Ciba-Geigy’s seed line. (EB at 682-84). Barnaal worked for Ag Specialists from September 1991 to December 1993. (Ex. 102). During this time, Barnaal worked with Keltgen’s district sales manager Paul Peterson in converting Ag Specialists to a Keltgen dealer. That is, Ag Specialists began recommending and selling Keltgen products. (EB at 685-87; HJ at 596-97). In the process of converting Ag Specialists to the Keltgen product line, Barnaal met with both Paul Peterson and Howard Jensen. (Id.) Barnaal received training on the Keltgen product line and sales program. (EB 687-88). Barnaal’s efforts made Ag Specialists into a successful Keltgen dealer. (EB 689-90; JK 748-49; RO 331-32, 350-51). According to Rod Osthus, Barnaal did a very good job as a new Keltgen dealer. (RO at 331).

34. In December 1993, Barnaal began working for Mid-County Coop, a Cenex Land O’ Lakes facility. (EB at 690). Barnaal sold seed and continued his troubleshooting role, making recommendations regarding crop protection, tillage practices and hybrid seed. (EB at 691-92).

35. Regional sales managers are ultimately responsible for hiring district sales managers within their region. (RO at 318; HJ at 837; IP at 987-88). However, the Director of Sales has veto power over hiring decisions made by subordinate regional sales managers. There is no evidence that such veto power has ever been exercised. (HJ at 845-46; RO at 324).

36. Rod Osthus was terminated as Director of Sales in March 1994 prior to the Peterson territory being filled. (RO at 330-31, 363; Ex. 103). Howard Jensen replaced Osthus as the Director of Sales. (HJ at 557).

37. In June 1994, Howard Jensen hired Les Hartwig to replace him as regional sales manager. (HJ at 835, 837). Les Hartwig received a Bachelors of Science degree in agronomy from the University of Minnesota. (LH at 911-12). From 1970-73, Hartwig worked for the University in soybean research. (LH at 912-13). In 1973, Hartwig began a 15 year career at Northrup King Seed Company. (LH at 913-16). During his tenure at Northrup King, Hartwig had responsibility for hiring employees. (Id.)

38. In 1988, Hartwig began working for Biotel, a biotech company based out of the United Kingdom that developed ag-related products. (LH at 916-17). Hartwig worked for Biotel as a regional sales manager for the Midwest. (Id.) In 1991, Hartwig began working for Cenex Land O’ Lakes system. (LH at 918-20). Cenex is the largest coop system in Minnesota with business in the area of seed, crop protection products and fertilizer. (Id.) While with Cenex, Hartwig worked in sales and as an agronomist. (Id.) Hartwig provided consulting services to farmers and drafted crop plans. (Id.)

39. In April or May of 1994, Earl Barnaal sent a resume and cover letter to Jensen inquiring about a district sales manager position with Keltgen. (EB at 610-14; Exs. 102, 105).

40. In late May of 1994, Barnaal stopped by unannounced at Keltgen’s main office in Olivia, Minnesota and met with Howard Jensen. During this meeting, Barnaal inquired about the Peterson opening generally. (EB at 615-16, 697-98).

41. In June 1994, Jensen turned over to Hartwig the responsibility for hiring the district sales manager for the Peterson territory. (LH at 922; HJ at 874-75). Hartwig asked Jensen if he knew any candidates for the position. (LH at 923-24). Jensen provided Hartwig with the names and background information of both Barnaal and Hendricks. (LH at 923-27; HJ at 875-76). Jensen also gave Barnaal’s resume to Hartwig. (HJ at 601, 862). Jensen told Hartwig that Hendricks had previously worked for Keltgen and that Jensen had considered Hendricks for another sales territory but that Hendricks had not been willing to relocate. (LH at 926-27). As for background information on Barnaal, Jensen told Hartwig that Barnaal was a dealer who lived in Glencoe within the Peterson territory. (Id.) Jensen, who was in the process of hiring another regional sales manager and an agronomist, explicitly left the Peterson territory hiring decision up to Hartwig. (HJ at 837-39; 874-76).

42. In choosing a candidate for the district sales manager position, Hartwig ideally wanted someone with an agronomic background, who was current in the industry and willing to live within the territory he was to serve. (LH at 914-16).

43. Throughout Keltgen’s history there have been district sales managers who did not live in the territories they were assigned. (RO at 295).

44. In early June of 1994, Hartwig interviewed Earl Barnaal. (EB at 636) During the interview, Hartwig questioned Barnaal on various agricultural topics and troubleshooting scenarios to test Barnaal’s current level of knowledge. (LH at 938; EB at 700-01). Hartwig and Barnaal also discussed current trends in tillage practices, herbicide resistant hybrids, and crop protection products. (EB at 701). Hartwig specifically asked Barnaal about his contacts and sales history within the Peterson territory. (EB at 702-03; LH at 938-39). Between his positions with Ag Specialists and Mid-County Coop, Barnaal had made sales in five of the eight counties within the Peterson territory. (EB at 684, 687; 692). In addition, Barnaal had developed a network of contacts within those five counties including agribusinessmen, large farmers, dealers, loan officers and crop consultants. (EB at 653, 693-95).

45. In mid-June of 1994, Barnaal interviewed with Irv Parker, General Manager of Keltgen, and Kory Smith, Marketing Services Manager. (EB at 618-20, 635).

46. In late June of 1994, Hartwig called Hendricks and set up an interview with him for the district sales manager position. The interview was scheduled for July 6, 1994. Hartwig asked Hendricks to bring a copy of his resume to the interview. (BH at 100; LH at 937-38). However, Hartwig did obtain and review a copy of Hendricks’ resume before he decided to hire Barnaal. (LH at 889, 928, 930).

47. Prior to Hendricks’ scheduled interview date, Hartwig informed Jensen that Barnaal had the qualities he was looking for in a district sales manager and that he wanted to offer the position to Barnaal. (LH at 940, 955; HJ at 839-40). Having found his candidate, Hartwig decided that he did not want to go through the motions of interviewing Hendricks. (LH at 940). Hartwig told Jensen that he did not want to patronize Hendricks by conducting a “token” interview. (HJ at 602). In addition, Hartwig was not impressed with Hendricks’ resume. Hendricks’ resume emphasized Hendricks’ experience as an administrator and assistant professor of business at UMW. Hendricks’ agricultural sales experience was limited to a two year period in 1984-86. (LH at 930-31; Ex. 2).

48. Hartwig also believed that Hendricks would not be willing to relocate from Janesville, Minnesota to the Peterson territory and this was an additional factor in his decision not to hire Hendricks. (LH at 884-86; Ex. 19). Hartwig never asked Hendricks if he would in fact be willing to move. (LH at 886).

49. Because Hartwig did not know Hendricks, Jensen agreed to call Hendricks to report Hartwig’s decision to hire Barnaal. (HJ at 602, 840-41).

50. On July 1, 1994, Jensen called Hendricks to cancel the interview and to tell Hendricks that Hartwig had chosen someone else for the position. (HJ at 602). Jensen informed Hendricks that Hartwig had hired a “younger guy from up his way”. (BH at 34; HJ at 870-73). This statement is the catalyst for this case and the reason Hendricks believes he was discriminated against. (BH at 207).

51. Hendricks concedes that Barnaal had more recent experience in the agricultural industry and more experience in agricultural sales than he did when Barnaal was hired by Keltgen. (BH at 210, 215).

52. Under the heading “Knowledge/Skills/Abilities”, Keltgen’s May 1995 Job Description for the District Sales Manager position lists “a practical knowledge of agronomy” as a requirement for the job. (Ex. 104, p. 3).

53. In July 1994, Hartwig also hired a district sales manager for a northern sales territory near Starbuck, Minnesota. The candidate hired, Dean Peterson, did not live in the Starbuck territory at the time. (LH at 924).

54. Since losing his position at UMW, Hendricks has been turned down for other employment for which he believed he was qualified. (BH at 223). Hendricks is currently employed at Countryside Motors where he has worked continuously since June of 1993.

55. On May 23, 1995, Mr. Hendricks filed a charge of age discrimination with the Department of Human Rights.

56. In January of 1996, Mr. Hendricks requested a 180-Day Hearing pursuant to Minn. Stat. § 363.071, Subd. 1a.

57. A contested case hearing was held on this matter on April 14-17, and 23, 1997. The record closed on June 7, 1997.

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS OF LAW

1. The Administrative Law Judge has the authority to consider the issues raised by Complainant’s discrimination charges under Minn. Stat. §§ 363.071, subds. 1 and 2, and 14.50.

2. Proper notice of the hearing was timely given and all relevant substantive and procedural requirements of statutes and rules have been fulfilled.

3. The Respondent is an “employer” as defined in Minn. Stat. § 363.01, subd. 17.

4. Pursuant to Minn. Stat. § 363.03, subd. 1(2)(a), it is an unlawful employment practice for an employer, because of age, to refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment.

5. Complainant is a 58 year old man. Therefore he belongs to a protected class under the Minnesota Human Rights Act.

6. The three-step analysis established in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) applies to indirect age discrimination claims brought under the Minnesota Human Rights Act. Feges v. Perkins Restaurants, Inc., 483 N.W.2d 701, 710 (Minn. 1992). Using this analysis, the Complainant has the burden to establish a prima facie case of discrimination. If the Complainant establishes a prima facie case, a presumption is created that the employer unlawfully discriminated against him and the burden shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for its actions. If the Respondent meets this burden of production, the Complainant must show by a preponderance of the evidence that the Respondent’s reasons for its actions were merely a pretext for discrimination. Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1986).

7. In order to establish a prima facie case of age discrimination, the Complainant must show that: (1) he is a member of a protected class; (2) he applied and was qualified for the job for which the employer was seeking applicants; (3) despite his qualifications, he was not hired for the position; and (4) the position remained available or was filled by someone else with similar qualifications. See, Sigurdson v. Carl Bolander & Sons, 532 N.W.2d 225, 228 (Minn. 1995); Midwest Sports Marketing, Inc. v Hillerich & Bradsby of Canada, Ltd., 552 N.W.2d 254, 262 (Minn. App. 1996).

8. The ultimate burden of persuading the trier of fact that the Respondent engaged in intentional discrimination remains at all times with the Complainant. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993); Hasnudeen v. Onan Corporation, 552 N.W.2d 555, 557 (Minn. 1996).

9. Complainant has presented a prima facie case of age discrimination.

10. Respondent has articulated legitimate nondiscriminatory reasons for its decision not to hire Complainant.

11. Complainant has failed to show, by a preponderance of the evidence, that Respondent’s reasons for its failure to hire him are a pretext for age discrimination.

ORDER

IT IS HEREBY ORDERED:

That Robert Hendricks’ complaint be dismissed with prejudice.

Dated this ___ day of August, 1997.

PHYLLIS A. REHA

Administrative Law Judge

Reported: Transcribed (1126 pages).

NOTICE

Pursuant to Minn. Stat. § 14.62, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

MEMORANDUM

Complainant Richard Hendricks brought this action against Respondent Keltgen Seed Company alleging he was subjected to age discrimination in violation of the Minnesota Human Rights Act, Minn. Stat. § 363.03, subd. 1(2). Mr. Hendricks maintains that Keltgen’s failure to hire him as a district sales manager in 1994 constituted age discrimination. Mr. Hendricks further contends that a statement by Howard Jensen, Respondent’s Director of Sales, that Les Hartwig decided to hire “a younger guy from up his way” and another comment by Jensen that Hartwig did not “want to tokenize [Hendricks]” by conducting a meaningless interview, are direct evidence that a discriminatory age animus motivated Respondent’s hiring decision.

Respondent maintains that it did not discriminate against Complainant when it decided not to hire him for the district sales manager position. According to Respondent, the person selected, 26 year old Earl Barnaal, was better qualified for the position and had more current and relevant experience. Respondent contends that the age of the candidates was neither a consideration nor a motivating factor in its hiring decision.

Age Discrimination

The Minnesota Human Rights Act provides that it is an unfair employment practice for an employer, because of age, “to refuse to hire or to maintain a system of employment which unreasonably excludes a person seeking employment.” Minn. Stat. § 363.03, subd. 1(2)(a). In presenting a case based upon age discrimination, a Complainant may either present direct evidence of the claimed discrimination or he may make out a case of discrimination under the burden shifting analysis of McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). In this case, Complainant argues that the record contains both direct and indirect evidence of age discrimination.

As direct evidence of Respondent’s alleged discriminatory refusal to hire him for the district sales manager position, Hendricks points to two statements purportedly made by Howard Jensen. The first statement occurred during a telephone call to Complainant on July 1, 1994. In informing Complainant that he had not been chosen for the district sales manager position, Jensen stated that regional sales manager Les Hartwig had hired a “younger guy from up his way”. During the hearing, Jensen admitted that he did tell Complainant either that Hartwig had hired a “young guy” or “younger guy”. The second statement relied on by Hendricks as direct evidence of age discrimination was also allegedly made by Jensen. According to Complainant, Jensen said something to the effect that Hartwig did not want to “tokenize” Hendricks by going through the motions of an interview when he had already decided to hire another candidate. Complainant maintains that these two statements by Jensen constitute sufficient direct evidence that Respondent’s decision not to hire Complainant was based on a discriminatory age animus. Complainant argues that Jensen’s comments are relevant because, as Director of Sales, Jensen had ultimate veto authority over any hiring decision made by Hartwig.

Complainant further maintains that, given the direct evidence of discriminatory intent on the part of the Respondent, this matter should be analyzed as a mixed motive case under the burden shifting framework of Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct. 1775 (1989). Pursuant to Price Waterhouse, once the plaintiff presents direct evidence that the employer’s adverse employment decision was motivated by a discriminatory criterion, the burden shifts to the employer to establish that it would have made the same employment decision regardless of the illegitimate motive. Id., 109 S.Ct at 1791; see, Philipp v. ANR Freight Sys., Inc., 61 F.3d 669, 673 (8th Cir. 1995). To establish a mixed motive case, Complainant must produce evidence showing a specific link between the discriminatory animus and the challenged decision sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated the challenged decision. Id. Stray remarks by nondecisionmakers and statements by decisionmakers unrelated to the decisionmaking process are insufficient to establish this necessary link. Buchholz v. Rockwell International Corporation, __ F.3d __ 1997 WL 408248, 3 (8th Cir. Iowa); Slather v. Sather Trucking Corp., 78 F.3d 415, 419-20 (8th Cir. 1996), cert. denied, __ U.S. __, 117 S. Ct. 179, 136 L.Ed. 118 (1996); Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir. 1991).

The Administrative Law Judge finds that the two statements identified by Complainant are insufficient, by themselves, to constitute direct evidence that either Hartwig or Jensen was actually motivated by an illegal age animus when deciding not to hire Complainant for the position. See, Diez v. Minnesota Mining & Manufacturing, 564 N.W.2d 575, 579 (Minn. App. 1997) (“Stray remarks made in the workplace cannot serve as direct evidence of discrimination.”). As stated in the Judge’s prior order on summary disposition, both remarks are sufficiently ambiguous to require other evidence or further explanation to establish any discriminatory interpretation. More importantly, the “mixed-motive” analysis used by federal courts in cases arising under Title VII has been expressly rejected by the Minnesota supreme court when considering claims brought under the Minnesota Human Rights Act. See, Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988); Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996). Therefore, this case is analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Minnesota courts have adopted the three-part test articulated in McDonnell Douglas for analyzing indirect discrimination claims. Id.; See, Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319, 323 (Minn. 1995). Under this test, once the Complainant establishes a prima facie case, a presumption is created that the employer unlawfully discriminated against him and the burden shifts to the Respondent to articulate some legitimate, nondiscriminatory reason for its actions. If the Respondent meets this burden of production, the presumption created by Complainant’s prima facie case drops from the case and the Complainant must show by a preponderance of the evidence that the Respondent’s reasons for its actions were merely a pretext for discrimination. See, Sigurdson v. Isanti County, 386 N.W.2d 715, 719-21 (Minn. 1986). The ultimate burden of persuading the trier of fact that the Respondent engaged in intentional discrimination remains at all times with the Complainant. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993); Hasnudeen, 552 N.W.2d at 557 (Minn. 1996).

In order to establish a prima facie case of discriminatory failure to hire, the Complainant must show that: (1) he is a member of a protected class; (2) he applied and was qualified for the job for which the employer was seeking applicants; (3) despite his qualifications, he was not hired for the position; and (4) the position remained available or was filled by someone else with similar qualifications. Schlitz v. Burlington Northern Railroad, 115 F.3d 1407, 1412 (8th Cir. 1997); Sigurdson v. Carl Bolander & Sons, 532 N.W.2d 225, 228 (Minn. 1995); Midwest Sports Marketing, Inc. v. Hillerich & Bradsby of Canada, Ltd., 552 N.W.2d 254, 262 (Minn. App. 1996).

The Administrative Law Judge finds that Complainant has established a prima facie case of age discrimination. At the time of the hiring, Mr. Hendricks was a 55 year old man and is therefore a member of a protected class. Mr. Hendricks demonstrated that he was qualified for the district sales manager position which Keltgen made available to another. As evidence of his qualifications, the record established that Hendricks worked successfully both as a district sales manager and a regional sales manager for Keltgen in 1984-1986. From 1986-1992, Hendricks returned to his prior position as an administrator and assistant professor at the agricultural campus of University of Minnesota - Waseca. Hendricks’ background and employment experiences made him sufficiently qualified for the district sales manager position. Moreover, the fact that Respondent seriously considered Hendricks for two district sales manager positions in 1993 and 1994 demonstrates that Respondent recognized Hendricks to be a qualified candidate. Despite his qualifications, Hendricks was not hired for the position. Instead, the position was filled by Earl Barnaal. Mr. Barnaal was 26 years old at the time he was hired by Keltgen. Barnaal is sufficiently younger than Hendricks to permit an inference of age discrimination. See, Schlitz, 115 F.3d at 1412.

Respondent has articulated legitimate and non-discriminatory reasons for not hiring Complainant. Respondent maintains that Complainant was not hired because he was not the best candidate for the position. Respondent argues that Earl Barnaal was better qualified for the district sales manager position because his background was more directly suited to Respondent’s needs. While it is true that Barnaal is almost 30 years younger than Hendricks, Respondent points out that Barnaal spent the five years immediately prior to being hired working in agricultural seed sales and making the same technical agronomic recommendations he would be expected to make as a district sales manager for Keltgen. In addition, Barnaal was trained in on the Keltgen product line and had already established a network of important contacts throughout five of the eight counties which make up the Peterson territory. According to Respondent, Barnaal’s overall experience was more current and relevant to what he would be doing as a district sales manager for the Peterson territory. Therefore, Respondent contends that it selected Barnaal for the position based on legitimate factors and without consideration to either candidate’s age.

Given that Respondent has articulated legitimate reasons for not hiring Complainant, Complainant must demonstrate by competent evidence that the presumptively valid reasons put forth by Respondent for his rejection are in fact a pretext for a discriminatory decision based on age. Complainant retains the ultimate burden of persuading the Administrative Law Judge by a preponderance of the evidence that Respondent’s proffered reasons are pretextual and that the true reason for his failure to be hired is age discrimination. Hasnudeen, 552 N.W.2d at 557; citing, Hicks, 509 U.S. at 507. As the U.S. Supreme Court explained in Hicks, “[i]t is not enough, in other words, to disbelieve the employer; the factfinder must believe the plaintiff’s explanation of intentional discrimination.” Id. at 519.

Complainant argues that Respondent’s reasons for its adverse employment actions are pretextual. Complainant contends that Howard Jensen’s statements that Hartwig hired a “younger guy” and that Hartwig did not want to “tokenize” him demonstrate a specific link between a discriminatory age animus and the decision not to hire him. Complainant maintains that Jensen, as Hartwig’s boss, was the ultimate decisionmaker and that therefore Jensen’s statements are relevant in establishing that an age-based bias improperly motivated the decision not to hire Complainant.

In addition, Complainant argues that the alleged legitimate reasons put forth by Respondent for not hiring Complainant are pretextual. The reasons Respondent initially gave in its Position Statement for rejecting Hendricks were: (1) willingness to relocate; (2) education; (3) experience; and (4) personality. According to Complainant, Respondent’s claim that Hendricks’ location in Janesville was a factor in its hiring decision is false. Complainant points out that Respondent has hired district sales managers before and after Complainant who have not lived within the boundaries of the territories they serve. Moreover, Complainant argues that the testimony demonstrated that Hendricks was willing to relocate to the Peterson territory for the district sales manager position. Both Jensen and Osthus admitted during the hearing that Hendricks informed them that he had sold his family cabin in order to facilitate a move to the Peterson territory if necessary. Therefore, Complainant contends that Respondent’s alleged concerns about Hendricks’ location are a fabrication.

Likewise, Complainant maintains that Hendricks was more qualified than Barnaal in terms of education, experience and personality. Hendricks holds a bachelor of science degree in physical education, health education, science and business. In addition, Hendricks has a masters of science degree in educational psychology and special education. Barnaal, on the other hand, has a two year associates degree in agri-business with an emphasis on crop management. Even though Hendricks’ areas of study were not agriculturally related, Complainant argues that Hendricks’ advanced degrees make him more educationally qualified for the position than Barnaal. Complainant also contends that Hendricks was better qualified with respect to experience. Complainant points out that, unlike Barnaal or any other candidate for the Peterson territory position, Hendricks actually spent two years working as both a district sales manager and regional sales manager for Keltgen. Moreover, Complainant maintains that his many years as an administrator and assistant professor at UMW provided him with agriculturally relevant work experience. Finally, Complainant argues that the record established that Hendricks was well liked and considered a good manager with solid “people skills” while employed at Keltgen. Accordingly, Complainant contends that, with his proven record at Keltgen and his years of agriculturally-related work experience at UMW, Hendricks was the better candidate and should have been selected for the district sales manager position.

Additional alleged legitimate reasons put forth by Respondent for not hiring Hendricks were Hendricks’ lack of an agronomic background; Hendricks’ lack of current agricultural knowledge; and Hendricks “lack of commitment” to the agricultural industry. Although “agronomy” is a somewhat loose term in the industry, it generally means the knowledge and application of soil and plant sciences to crop management. (Webster’s II New College Dictionary at 23 (1995); RO at 265). Complainant argues that current agricultural knowledge or a background in agronomy were not truly requirements for the district sales manager position. Complainant points out that several district sales managers hired before and after Earl Barnaal did not have agronomic backgrounds. Complainant also maintains, incorrectly, that Respondent’s 1995 Job Description for the district sales manager position does not even mention the word “agronomy” in its list of requirements or duties. (In fact, the job description does list “a practical knowledge of agronomy” as a requirement for the position. See, FOF 52.) Complainant further contends that Hendricks did keep current on agricultural issues and trends through his position at the University. Finally, with respect to Respondent’s concerns about “commitment”, Complainant argues that Hendricks entire career as an administrator and assistant professor at the Waseca campus and his two year experience at Keltgen as a district sales manager and regional sales manager demonstrate his life-long commitment to the agricultural industry.

Complainant maintains that he has established, by a preponderance of the evidence, that Hendricks was better qualified for the district sales manager position than Barnaal in each of the alleged legitimate selection criteria put forth by Respondent. Accordingly, Complainant argues that Respondent’s proffered legitimate reasons for not hiring him are pretextual. Complainant contends that Respondent’s fabricated reasons for not hiring Hendricks and the comments by Jensen are sufficient to support a finding that the true reason for Hendricks’ rejection was age discrimination.

Despite Complainant’s contention that Howard Jensen made the hiring decision for the Peterson territory position, the evidence presented by several witnesses at the hearing established that regional sales managers are responsible for hiring the district sales managers within their respective regions. (RO at 318; HJ at 837; IP at 987-88). Testimony further established that once Howard Jensen hired Les Hartwig as a regional sales manager, Jensen turned control of the region over to Hartwig and removed himself from the district sales manager hiring decision. The Administrative Law Judge finds that there is no evidence that Jensen intervened in the hiring decision at issue beyond passing on both Barnaal’s and Hendricks’ names and background information to Hartwig for consideration. It was Hartwig who, after interviewing Barnaal, ultimately decided to hire Barnaal for the Peterson territory district sales manager position. Furthermore, Hartwig was under no legal obligation to interview Hendricks. See, Bray v. Georgetown University, 917 F.Supp. 55, 60 (D.C. 1996).

Given that it was Hartwig who made the decision to hire Barnaal, Jensen’s statements that Hartwig hired “a younger guy” and didn’t want “tokenize” Hendricks are irrelevant for establishing age discrimination in the hiring decision. Comments by employees not involved in the employment decision cannot provide a basis for charging other employees with discrimination and must be distinguished from statements which demonstrate a discriminatory animus in the decisional process. Hermeling v. Montgomery Ward & Co., Inc., 851 F.Supp. 1369, 1378 (D.Minn. 1994). However, even if the Judge were to accept Complainant’s argument and find that it was Jensen who made the ultimate decision not to hire Hendricks, the Judge concludes that Complainant has failed to establish that the decision was motivated by an age-based discriminatory bias. Jensen’s statement that Hartwig hired a “younger guy from up his way” is, without more, merely a stray descriptive remark that fails to link Hendricks’ nonselection with a discriminatory age animus. See, Dungee v. Northeast Foods, Inc., 940 F.2d 682, 688 (D.N.J. 1996) (Decisionmaker’s comment that she had hired a “young man” was “too weak to raise a reasonable inference of discrimination.”). Likewise, Hartwig’s purported statement that he did not want to “tokenize” or “patronize” Hendricks with a meaningless (“token”) interview, does not reflect age discrimination. Given the context, where Hartwig had already decided to hire Barnaal, such a statement is entirely reasonable. The Judge finds Hartwig’s explanation that he simply did not want to conduct a pointless interview out of professional courtesy to be credible.

In addition, despite Complainant’s subjective opinion that Hendricks was better qualified in all of the hiring criteria put forward by Respondent, the Judge finds Respondent’s belief that Barnaal’s education, skills and agricultural sales experience were more current and more relevant than Hendricks to be credible and supported by the evidence. It is not the court’s role to second-guess an employer’s business judgment as to who is more qualified for the job. Dungee, 940 F.2d at 689. Absent judgments involving intentional discrimination, courts have no authority to sit as super-personnel departments reviewing the wisdom of business decisions made by employers. Hutson v. McDonnell Douglas Corp., 68 F.3d 771, 781 (8th Cir. 1995). Rather, judicial inquiry is limited to whether the employer gave an honest explanation of its behavior. Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 973 (8th Cir. 1994).

After reviewing all of the evidence presented in this matter, the Administrative Law Judge finds that Complainant has failed to establish that Respondent’s decision not to hire him was motivated by age discrimination. The record established that Earl Barnaal’s education was focused on crop management and that Barnaal had five years experience selling hybrid seed immediately prior to being hired by Keltgen. Barnaal also had experience working as an agronomist and making site specific recommendations for farmers on seed, fertilizer and pesticides. In addition, Barnaal was familiar with and had been trained in on Keltgen’s product line. Moreover, Barnaal already lived in the Peterson territory and had developed a network of established contacts. By contrast, Hendricks had been out of agricultural seed sales since 1986, was unfamiliar with the current Keltgen product line, and had admittedly no contacts in the Peterson territory. Furthermore, Hendricks testified that when he was employed as a district sales manager for Keltgen in the mid-1980s, answering technical questions regarding fertilization or tillage practices was outside the parameters of his duties. Instead, such questions were referred up to Rod Osthus or Keith Keltgen to handle. (BH at 165-66).

Based on all the evidence presented at the hearing, the Administrative Law Judge concludes that Complainant has failed to establish by a preponderance of the evidence that Respondent’s articulated legitimate reasons for not hiring him are merely a pretext and that the true reason for his rejection is age discrimination. The evidence presented at the hearing established that Hendricks was not chosen for the district sales manager position for reasons independent of his age. Given Barnaal’s background and experience, Hartwig had ample legitimate and nondiscriminatory reasons to offer Barnaal the district sales manager job. Complainant is unable to show that Respondent’s refusal to hire him was motivated in whole or in part by his age. Furthermore, the Judge finds that Complainant failed to present sufficient evidence to support his claim that either Mr. Jensen or Mr. Hartwig injected a discriminatory age bias into the hiring decision. The comments by Jensen, which Complainant emphasizes, were merely stray descriptive remarks and do not rise to the level of demonstrating a discriminatory age animus. Absent these remarks, there is no evidence to suggest that concerns about Hendricks’ age played a role in the decision to hire Barnaal. Therefore, it is the order of the Judge that Mr. Hendrick’s complaint be dismissed with prejudice.

P.A.R.