CARLTON JACKSON, Complainant
MANPOWER INTERNATIONAL, Respondent
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 issues the decision set forth below. In reaching this decision, the commission has not overturned any of the ALJ's credibility determinations, and has modified certain of his findings of fact to more accurately reflect the evidence of record.
In a complaint filed on March 2, 2007, with the Equal Rights Division (ERD) of the Department of Workforce Development (DWD), Carlton Jackson (Jackson), the complainant, alleged that Manpower International (Manpower), the respondent, violated the Wisconsin Fair Employment Act (WFEA) by discriminating against him on the basis of race, color, and sex, in regard to the following:
In an Initial Determination issued on June 12, 2007, an ERD investigator found no probable cause to believe that the complainant had been discriminated against as alleged. The complainant filed a timely appeal. Pursuant to notice, this matter was heard on July 1, 2008, by Administrative Law Judge (ALJ) John Grandberry. No post-hearing briefs were filed.
ALJ Grandberry granted the respondent's motion to dismiss at the close of the complainant's case in chief. ALJ Grandberry issued a written order dismissing this complaint on March 13, 2009.
The complainant filed a timely appeal of the ALJ's decision to the commission.
1. Complainant is an African-American male who identifies his color as black.
2. Complainant was hired by the respondent in 2002 as an Accounts Payable Automation Specialist. His duties included the transfer of data utilizing certain computer software programs, and identifying manual processes that could be automated.
3. Complainant has been assigned to the Accounts Payable Department since his hire.
3. In 2004, as the result of a company-wide position compensation survey, the complainant's position title was changed to Accounts Payable Senior Coordinator. This change did not affect the complainant's duties, pay, or benefits.
4. Pursuant to this survey, three lead worker positions were created in the Accounts Payable Department. These positions were assigned to a pay band one level higher than the complainant's.
5. In April 2006, as the respondent was about to implement PeopleSoft, a new computer software program, it designated certain staff members in each department to serve as point persons for the implementation of the program. For the Accounts Payable Department, the respondent designated the three lead workers and Kelly Jankowski (Jankowski), an Accounts Payable Professional.
6. As an Accounts Payable Professional, Jankowski's position was assigned to a pay band two levels higher than the complainant's, and was assigned higher level duties, including supervision of staff and coordination of department-wide projects.
7. In September 2006, during the implementation of PeopleSoft, Jankowski was temporarily assigned to perform certain automation processes, including those the complainant had been performing. During this implementation period, complainant was assigned to document the steps he followed to perform the automated processes. The intent was to utilize such documentation for future training and compliance purposes.
8. Once complainant completed this documentation in 2007, he was again assigned to perform the automated processing duties of his position.
1. The respondent is an employer within the meaning of the WFEA.
2. The complainant has the burden to prove that probable cause exists to believe that he was discriminated against on the basis of race, color, or sex as alleged.
3. The complainant failed to sustain this burden.
The complaint in this matter is dismissed.
Dated and mailed August 20, 2010
jacksca . rrr : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The respondent argues that the complainant's charge is untimely filed as to certain of the actions alleged to be discriminatory.
The Wisconsin Fair Employment Act requires that a complaint be filed no more than 300 days after the alleged discrimination occurred. Wis. Stat. § 111.39(1). This 300-day filing limit is not a jurisdictional prerequisite to suit, but instead a statute of limitations subject to waiver, estoppel and equitable tolling. Milwaukee County v. LIRC, 113 Wis. 2d 199, 335 N.W.2d 412 (Ct. App. 1983).
The actionable 300-day period applicable here would be May 6, 2006, through March 2, 2007.
The following discrete actions alleged by the complainant to be discriminatory occurred prior to May 2, 2006, and are not cognizable here as a result:
The commission notes that, even if the complaint had been timely filed as to the failure to select complainant as a PeopleSoft point person, the record shows that the respondent selected four positions at a higher level than the complainant's in the Accounts Payable Department to perform this function, which does not even raise an inference of discrimination.
Discrimination
The standard of proof applied here is one of probable cause.
Wisconsin courts, in the absence of the WFEA's establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, have adopted the basic allocation of burdens and order of presentation of proof utilized to prove a claim of employment discrimination brought under Title VII. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172-173, N.W.2d 372 (Ct. App. 1985). See, also, Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).
As stated by the court in Puetz:
McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] requires the complaining party to establish a prima facie case, which then raises a presumption of discrimination. To rebut the presumption, the defendant need only articulate a legitimate, nondiscriminatory reason for the action taken. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The complainant then must be given the opportunity to prove that the proffered reason is merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804, 805; see also Hamilton v. DILHR, 94 Wis. 2d 611, 619, 288 N.W.2d 857, 861 (1980).
To establish a prima facie case, the complainant is required to show that he was a member of a protected group and suffered an adverse action, and that the circumstances create an inference of discrimination.
The complainant failed to establish a prima facie case of discrimination in regard to the following allegations of discrimination.
Junior Achievement
The complainant alleges that, beginning in 2003, the respondent denied his request to participate in the Junior Achievement program. Although the complainant established that he is protected on the basis of his race, color, and sex, he failed to prove that similarly situated white or female employees were treated more favorably in this regard than he.
Promotions
The complainant alleges further that he was not promoted by the respondent during the four years prior to March 2007. However, the complainant did not prove that he had actually applied for a promotion with the respondent, or that similarly situated white or female individuals were treated differently in regard to promotion than he was.
Pay rate
The complainant also asserts that he was paid less than Jankowski, a white female. However, since the complainant and Jankowski held different positions at different compensation levels, and were thus not similarly situated, the complainant has failed to establish a prima facie case in this regard.
Finally, the complainant argues that his automated processing duties were removed from his position and assigned to Jankowski, a white female, during the introduction and initial implementation of the PeopleSoft software. However, the fact that an employer temporarily assigns different duties to an employee during a period of transition does not, under the circumstances present here, reasonably establish or even imply the existence of a discriminatory animus. It is a management right and responsibility to assign duties, whether temporary or permanent. The temporary assignment here did not affect the complainant's position classification, pay, or benefits. The record does not establish that this temporary reassignment benefited Jankowski in any way. In fact, the existence of a benefit to her would be counterintuitive since she was temporarily assuming the duties of a position two levels below hers.
The complainant has failed to sustain his burden to prove that probable cause exists to believe that he was discriminated against based on race, color, or sex as alleged in his complaint.
Procedural matters raised in appeal to commission
In his April 2010 brief to the commission, the complainant states:
However, depending upon the circumstances, the time to raise discovery motions is prior to, or in the course of, the hearing before the ALJ. Neither the file in this matter nor the hearing record shows that the complainant did so.
cc: Attorney Michael R. Phillips
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