P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. 200700068, EEOC Case No. 26G200700565C

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed April 23, 2010
bialkdu . rsd : 125 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


The respondent, Aurora Health Care, hired Dustlynne Bialk on August 9, 2004, to work part time as a materials attendant at Aurora Medical Center Oshkosh. The Aurora Medical Center Oshkosh became operational in October 2003. Bialk is a female.

The job responsibilities of the materials attendant position includes receiving and distribution of supplies and equipment throughout the medical center, shipping functions, warehouse distribution functions, courier driving fill-in duties and computerized PAR stock replenishing duties. All materials attendants perform the same job duties.

The respondent sets a pay range for the materials attendant position based on local market factors. The pay range changes from year to year. Although the only required qualifications for the materials attendant position were a high school education or equivalency, driver's license, ability to read, write, perform basic math, operate a hand-held computerized PAR system and certain mental and physical requirements, the respondent determined an individual's starting pay within the pay range based on an individual's years of "experience credit". For the materials attendant position, an individual's experience credit may include years of prior experience in materials management, a healthcare background, prior employment with the respondent and education.

The experience credit is determined by a human resources representative or recruiter based on the individual's job application, resume and interview.

After starting pay is established, a materials attendant's pay may be adjusted based upon a merit system. Managers can award a merit pay increase of up to 5% of the employee's base pay based on the employee's performance in the prior year.

Bialk alleged in her discrimination complaint filed against the respondent in January 2007 that the respondent discriminated against her on the basis of her sex with respect to compensation. Bialk alleged that there is one job description for the materials attendant position and that "she can work all day next to a man" but the men get paid more than her. Further, Bialk alleged that she put in for the full-time position of a male that quit but declined the position because she would not have gotten the pay that the male materials attendant had received.

In Schwinn v. Dodge County Cooperative, (LIRC, 10/13/98), the commission stated the following with respect to analyzing claims of sex discrimination with respect to compensation:

In evaluating complaints of sex discrimination in compensation under the Act, the commission has looked to the analysis followed under the federal Equal Pay Act. Sahr v. Tastee Bakery, ERD case no. 8800838 (LIRC, 1/22/91); and Anderson v. LIRC, case no. 87-CV-5338 (Wis. Cir. Ct. Dane County, 2/12/88), affirming Anderson v. City of Sheboygan Health Department, ERD case nos. 8104377 (LIRC, 8/20/97). Under the Equal Pay Act analysis, a complainant must show that the employer pays [employees] of different sexes differently for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions. If that showing is made, an employer is liable unless it proves that the pay differential is the result of: (a) a seniority system, (b) a merit system, (c) a system which measures earnings by quantity or quality of production, or (d) any factor other than sex. Sahr, supra; Anderson, supra, and Foss v. P.A. Bergner and Company, ERD case nos. 8950461 and 8951128 (LIRC, 03/04/91). The Equal Pay Act analysis has been described as a strict liability test in which it is not necessary to prove intent to discriminate: an employer who pays different wages is automatically liable unless it proves one of the defenses. Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 99, 24 FEP Cases 1019, 1020 footnote 1 (8th Cir. 1980).

However, in part because the provisions of the state fair employment statutes and the federal Equal Pay Act are not identical, it is also appropriate to apply the conventional analysis on the issue of discrimination. The conventional analysis is particularly appropriate where the wage differential is sequential rather than simultaneous. Sahr, supra. Under the conventional analysis, the complainant must make a prima facie case by showing she was a qualified worker treated less favorably with respect to pay than workers of the other gender. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the pay difference. If such a reason is articulated, the complainant must prove by a preponderance of the evidence that the proffered nondiscriminatory reason was not the real reason for the discrimination in pay but merely a pretext for discrimination. Currie v. DILHR, 210 Wis. 2d 380, 389-90 (Ct. App. 1997). The conventional and Equal Pay Act analyses differ not only in terms of allocation of proof, but also on the issue of employer intent which is the central focus of the conventional analysis. Sahr, supra. On the other hand, the federal courts have held that Title VII of the Civil Rights Act and the Equal Pay Act should be construed in harmony, and have stated that the basic analysis is the same under either theory. Strecker, supra, at 24 FEP Cases 1020.

The parties herein do not disagree that there were men and women in the materials attendant job position who received different pay for jobs which required the same skill, effort and responsibility and that were performed under the same working conditions. The question thus presented under the equal pay analysis is whether the employer has carried its burden of establishing that the differences in pay are the result of: (a) a seniority system, (b) a merit system, (c) a system which measures earnings by quantity or quality of production, or (d) any factor other than sex.

The ALJ concluded that the respondent had carried its burden. The ALJ determined that the differences in starting pay for employees in the materials attendant positions was due to a factor other than sex and that the employees' pay increases were based on a merit-based pay system.

With respect to the any factor other than sex exception, the court in Dey v. Colt Construction Co., 28 F.3d 1446 (7th Cir. 1994), citing its earlier decision in Fallon v. Illinois, 882 F.2d 1206 (7th Cir. 1989), stated the following:

We explained in Fallon that the EPA's fourth affirmative defense "is a broad catch-all exception [that] embraces an almost limitless number of factors, so long as they do not involve sex." [Fallon], 882 F.2d at 1211; see also Patkus [v. Sangamon-Cass Consortium], 769 F.2d [1251] at 1261 [(7th Cir. 1985)]. The factor need not be "related to the requirements of the particular position in question, nor must it even be business-related." Fallon, 882 F.2d at 1211; Covington v. Southern Illinois Univ., 816 F.2d 317, 321-22 (7th Cir. [1987]), cert. denied, 484 U.S. 848, 98 L. Ed. 2d 101, 108 S. Ct. 146 (1987). Because it is not our province to second-guess the employer's business judgment, we ask only whether the factor is bona fide, whether it has been discriminatorily applied, and in some circumstances, whether it may have a discriminatory effect. Fallon, 882 F.2d at 1211.

Bialk argues that the respondent's "merit system was not applied systematically" because she was not given any experience credit for running a household, a small business and two house remodeling projects, and because the respondent gave a male, Peter Searls, 7 years of experience credit for carpentry work (maintenance experience).

Bialk's argument, although couched in terms as relating to the "merit system" statutory exception, actually concerns the broad catch-all any factor other than sex exception. The question presented under this exception is whether the reason for the respondent's determination of Bialk's starting pay was gender-neutral.

The evidence indicates that the respondent's determination of Bialk's starting pay was gender-neutral because the respondent awarded males and females alike experience credit when determining their starting pay. For example, Kevin Gardner, a male who had been a materials manager from 1979 until 2001 and a materials coordinator for the respondent from June 2001 until hired as a materials attendant in 2003, was given 24 years experience credit. Kim Hardel, a male who had materials management and warehouse experience for a company from 1987 until 1997, was given 10 years experience credit when hired as a materials attendant in 2003. Rebecca Magnuson, a female with approximately 6.5 years experience in shipping/receiving for a company and a computer degree, was given 6.5 years experience credit when hired as materials attendant in 2003. Gale Gilbertson, a female who had materials management experience with the respondent since 2001, was given 2 years experience credit when hired as a materials attendant in 2003.

As noted above, an individual's experience credit is determined based on their job application, resume and interview. When Bialk applied for the materials attendant position in 2004 the prior experience that she shared with the respondent was that she was "owner/sales/bookkeeper" of Choice Homes,  (1)   which sold new and used mobile homes and for which she "did sales, paperwork etc.", and that she acted as a babysitter, caring for her grandchildren. Based on the information that Bialk provided during the application/interview process, Linda Mingus, the respondent's Director of Human Resources and another member of HR determined that no experience credit should be awarded to Bialk because she had no prior materials management experience, no prior health care experience, nothing that was relevant to the job. Indeed, at the time of her 90-day performance review with the respondent, Bialk completed a document in which she stated: "I started my job with no experience working in a stock room."

In January 2007, Bialk submitted an "updated" statement regarding her qualifications for the materials attendant position. Bialk asserted that she had underestimated her qualifications. Bialk stated that she had worked as "an real estate manager also called Jusahsewfe (Just a house wife)" with duties which included "purchasing, distribution of supplies, courier driving, inventory monitoring, stock replenishing, rotat[ion] of stock, organizing, checking product for outdated items, proper disposal of outdated items and more." (At the hearing, Bialk explained that before she goes shopping, she inventories her pantry, makes a list and goes shopping to replenish her stock.) Further, in her January 2007 statement, with respect to her mobile home business Bialk stated that she "ordered inventory, stocked inventory, sold and delivered." Bialk also stated that she had done "the residential contracting of two new constructions and two remodeling projects. This also is experience in material handling since it consists of ordering inventory, having the product there on time and in the right order."

The respondent did not change its prior determination that Bialk should not receive any experience credit. By failing to do so, the respondent did not discriminate against Bialk on the basis of sex with respect to compensation. First, the respondent's determination of an individual's experience credit is made at the time of hire based on the individual's application, resume and interview. Second, Bialk's February 2007 correspondence contains assertions regarding her duties as owner of the mobile home business which are inconsistent with the duties she listed as the owner of the business when she applied for employment in 2004. Furthermore, while Bialk may not like the fact that she was not given any experience credit for being "Jusahswfe", that does not make it a violation of the law. As the court noted in Wernsing v. Dept. of Human Services, 427 F.3d 466 (7th Cir. 2005):

Section 206(d)  (2)  [of the Equal Pay Act] does not authorize federal courts to set their own standards of "acceptable" business practices. The statute asks whether the employer has a reason other than sex -- not whether it has a good reason. Accord, Taylor v. White, 321 F.3d 710, 719 (8th Cir. 2003)("the wisdom or reasonableness of the asserted defense" is irrelevant); Strecker v. Grand Forks County Social Service Bd., 640 F.2d 96 (8th Cir. 1980) (en banc). Congress has not authorized federal judges to serve as personnel managers for America's employers. As we say frequently when dealing with equivalent questions under other federal statutes, such as Title VII of the Civil Rights Act of 1964: "A district judge does not sit in a court of industrial relations. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, Title VII and § 1981 do not interfere." Pollard v. Rea Magnet Wire Co., 824 F.2d 557, 560-61 (7th Cir. 1987).

Further, with respect to Peter Searls, who was hired in 2004, the evidence indicates that a mistake had been made in determining his starting pay. In addition to the testimony by Mingus that "a very big mistake" had been made regarding Searls' pay and that she would not have given Sears any experience credit for maintenance experience, Mingus also noted that Searl's starting wage was $11.50 per hour, an hourly wage which does not appear anywhere on the respondent's pay steps by job code. (Exhibit #17.) The pay steps by job code shows what the starting pay should be for a materials attendant employee for various years based on an individual's number of years of experience credit. According to the pay steps by job code, an individual hired as a materials attendant with 7 years experience credit in 2004 would have been given a starting hourly wage of $10.51, not $11.50. Furthermore, Mingus testified that it was the respondent's policy not to cut an employee's pay rate that had been established by mistake. Indeed, the respondent had previously not cut the wages of both males and females (including Kevin Gardner, Kim Hardel, Rebecca Magnuson and Gale Gilbertson) in the materials attendant position despite the fact that their starting wages had been erroneously set based on the pay range for employees at the Aurora BayCare Medical Center instead of the pay range for employees at Aurora Medical Center Oshkosh. Beth Kirby, a human resources representative from Aurora BayCare in Green Bay had mistakenly placed the males and females in the materials attendant pay range for the Green Bay area.

The wage rate of individuals employed as materials attendants is also adjusted by merit pay increases of up to 5% of the employee's base pay based on the employee's performance in the prior year. Courts have held that a merit system is an organized and structured procedure whereby employees are evaluated systematically according to predetermined criteria. See e.g., EEOC v. Aetna Ins. Co., 616 F.2d 719 (4th Cir. 1980); Maxwell v. City of Tucson, 803 F.2d 444 (9th Cir. 1986); Ryduchowski v. Port Auth. of  N.Y. & N.J., 203 F.3d 135 (2d Cir. 2000).

The evidence in the instant case shows that the respondent utilized a structured procedure to systematically evaluate employees according to predetermined criteria. Annual performance reviews are completed for all materials attendants. They receive ratings of "Development Needed", "Fully Competent" or "Significant Strength", for which they receive one to five points for several areas of performance. The point totals are added up, an average score is determined and then the supervisor recommends a merit pay increase based on this score from zero up to 5% of the employee's base pay. All materials attendants are evaluated on the same standards. For the years 2005 to 2007, Bialk received consistently high merit-based wage adjustments ranging from 3.3% to 4.2%.

Bialk further argues that in December 2006 she was offered a materials attendant position previously held by a male (Kim Hardel) who was paid $13.15 per hour, but for which she would have been paid $11.10 per hour, and that in February 2007 she was offered a materials attendant position previously held by a male who was paid $14.23 per hour, but for which she would have received $11.81 per hour. However, Bialk was not offered the position previously held by a male in December 2006, she was simply offered the opportunity to work full time as a materials attendant. Bialk would have remained in her same materials attendant job, just working more hours. The exact same situation was presented in February 2007 when a second male materials attendant (Kevin Gardner) left the employ of the respondent. Both Hardel and Gardner had been awarded higher starting wages than Bialk because of their experience credit.

Bialk's claim fails under the conventional analysis as well. Bialk has established a prima facie case by showing that she was a qualified worker treated less favorably with respect to pay than workers of the other gender. However, the respondent has articulated a legitimate, nondiscriminatory reason for its payment of the less favorable wage to Bialk. Namely, that an employee's starting wage is determined based on his or her experience credit and that an employee's wages are adjusted thereafter based upon a job performance merit system. Further, Bialk has failed to show that the respondent's stated reason for the pay that she received versus that of other males is pretextual. While the evidence indicates that a male (Peter Searls) received 7 years experience credit for maintenance work, and thus a higher starting wage than Bialk, the evidence also indicates that this was a mistake. However, pretext means a dishonest explanation, a lie rather than an oddity or an error. Kulumani v. Blue Cross Blue Shield Assn., 224 F.3d 681, 685 (7th Cir. 2000), citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

For all of the above-stated reasons, the commission has affirmed the decision of the administrative law judge.


cc: Attorney Mary Pat Ninneman

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(1)( Back ) Bialk operated the business with her son.

(2)( Back ) Section 206(d) prohibits differences in payment of wages between employees on the basis of sex.


uploaded 2010/05/03