Wis.LIRC ER Decision: McElroy - January 27, 1998 - Sex discrimination; Retaliation - discrimination because of opposition to discrimination or filing complaint

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

ANNIE MCELROY, Complainant

SETON PROPERTIES MANAGEMENT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199600732, EEOC Case No. 26G960777

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.

DECISION

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

Dated and mailed: January 27, 1998
mcelran.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

In a complaint filed with the Equal Rights Division on February 21, 1996, the complainant, Annie McElroy, alleged that she was retaliated against for having opposed a discriminatory practice under the Act, and discriminated against on the basis of her sex, when the respondent failed to hire her for an Environmental Services Coordinator position in January 1996. Specifically, Ms. McElroy asserted that she applied for an Environmental Services Coordinator position after being informed of the elimination of her position of cleaner crew leader on January 15, 1996, that on January 26, she reported to her manager, Sharilyn Junior, that an employe had complained to her of sexual harassment by a male coworker and that nothing had been done about it, and that subsequently on January 29, 1996, Cynthia Davis (Employment Specialist), informed her that she did not get the job because of her "evaluation score" and the results of a survey from employes she supervised. With respect to her sex, McElroy alleged that the respondent hired a lesser qualified male and that she believed that her sex was the reason the male was selected.

The administrative law judge granted the respondent's motion to dismiss the complainant's complaint at the close of the presentation of her case, concluding that there was no probable cause to believe the respondent had violated the Act as alleged. The complainant now seeks commission review of the ALJ's written decision in the matter.

On appeal the complainant apparently argues that in granting the respondent's motion to dismiss the ALJ erroneously reiterated information given in part by Amy Marquardt (Risk Management Coordinator) since Marquardt's name had not been listed as a witness which the respondent intended to use at the hearing. The record shows, however, that the information supplied by Marquardt came in the form of a written document that had been submitted into evidence by the complainant herself.

The complainant next asserts that the respondent's attorney made a point of trying to humiliate her by saying things such as "Seton is not offering you anything because you are spending your severance money here in the hearing by Seton paying me to represent them." Further, she asserts that the respondent's attorney also "tried to intimidate me by stating he needed all his witnesses in the room to heat up things." However, a review of the tape recording of the hearing fails to support the complainant's contentions.

As for her complaint charges, the complainant argues that the reason the respondent gave for not hiring her (that the other individuals selected were the best suited for the job) is not true. In support of this position, and apparently referencing the "objective criteria" portion of the evaluation tool (portion of the evaluation form where the candidates received points based on their last performance evaluation score and for various types of experience (1 )) used to select candidates for hire, the complainant argues that it was the scoring process which was mainly unfair because she was scored on what Cynthia Davis and Pamela Shead (Director of Environmental Services) wanted to score her on. Specifically, the complainant asserts that she had 16 years of environmental services experience. The record indicates that the complainant was given an appropriate score for this category, however. The complainant received a score of "48" for her experience. Bonnie Fizer, a successful candidate, also received a score of "48" for her 21 years of environmental services experience. The complainant further asserts that she received a score of "24" based on her last performance evaluation while Fizer, who was hired, had received a score of "0" based on her last evaluation. The record indicates that Fizer received higher scores than the complainant for various other areas of experience, however. The complainant's combined scores for the various categories totaled only 176 whereas Fizer's combined scores totaled 264.

With respect to the category involving perception of the candidate by employes in the department, the complainant argues that no survey had been taken of the individuals that worked for her. However, the scoring criteria for this category was listed as involving an "employee opinion questionnaire and/or comments shared w/ dept." (emphasis added) A note appeared next to this category on the complainant's form which apparently states, "People felt they don't hear they are doing a good enough job enough--comments." The complainant has further asserted that Sharilyn Junior (2 ) was given 12 points for post high school courses while she was not given any credit for the courses she took. The category apparently referenced here by the complainant is that which states "Candidate has High School Diploma or Equivalent and has had some Post High School course work." (emphasis in original) While the evidence indicates that the complainant did complete an on-the-job training program and a number of one-day courses for which she received either a letter of recognition or certificate indicating successful completion, the record indicates that it was necessary to have completed college course work to obtain points for "Post High School course work." Junior's application showed that she had completed two and one-half years of college at M.A.T.C and Cardinal Stritch where her course of study was business management. The complainant's application listed no education/college course work that she had completed after high school.

Also, the complainant questions the respondent's decision in selecting William Ledbetter for an Environmental Services Coordinator position, asserting that he "was involved with sexually harassing one of his employes." There was absolutely no evidence presented to establish that Mr. Ledbetter had sexually harassed one of his employes, however. There was also apparently an assertion by the complainant that she had 1 more year of leadership experience than Ledbetter, yet he received a score of 48 points for this category while she received only 24 points. (The respondent disputed the complainant's contention that she had more leadership experience than Ledbetter when discussing the admission of various exhibits at the beginning of the hearing.) In any case, the evidence indicates that 48 points were the most points that could be obtained for leadership experience. Assuming that the complainant had 1 more year of leadership experience than Ledbetter, this would have only raised her score to 200, while Ledbetter's score was 284. Ledbetter's evaluation score ranked him second among the four individuals that the respondent hired as an Environmental Services Coordinator. Of the four individuals, Ledbetter was the only male.

Next, the complainant asserts that she believes that Shead and Davis knew about the (alleged) sexual harassment that she had reported. She apparently asserts that they did because an investigation into alleged sexual harassment would necessarily involve the human resources department and other management personnel. However, even assuming for purposes of argument that Shead and Davis had learned that the complainant had reported an allegation of sexual harassment on January 26, 1995 (or had learned that the complainant had reported earlier incidents of alleged sexual harassment), the question remains whether probable cause exists to believe that the respondent retaliated against the complainant when it failed to hire her for an Environmental Services Coordinator position because she had reported alleged sexual harassment.

The complainant believes there is probable cause to believe that the respondent retaliated against her by failing to hire her because she had reported alleged sexual harassment. For instance, the complainant references a second comment by Shead that followed the objective criteria category involving perception of the candidates by employes where Shead states, "Nothing specifically noted about Annie or her Team. Question indicated mgt.--So would group Annie & Sharilyn." She then concludes from this comment by Shead that "It's possible" what Shead meant was that Shead "would group us (her and Sharilyn) in the new position as the Environmental Service Coordinator which lead (sic) me to believe their intentions was (sic) to hire me on January 18, 1996 and on January 26, 1996 when I reported again a complaint of Sexual Harassment...Sharilyn Junior called Pamela Shead right away and Pamela Shead informed Cynthia Davis to call me at home and tell me I wasn't selected." However, the concept of probable cause "focuses on probabilities, not possibilities." Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992). The complainant's assertion is nothing more than pure speculation. There is no evidence which supports any reason to believe that what McElroy asserts had probably occurred.

Further, the complainant claims that Shead is not consistent in the comments on her evaluation form because in one breath Shead said that nothing was specifically noted about her and her team but then also states that there was a concern about some interpersonal problems she (complainant) was having with other team leaders. These comments were not inconsistent. Shead's comment regarding the complainant and her team were made in connection with the evaluation criteria regarding how employes perceived the complainant as a team leader, while Shead's latter comment related to her relationship with other team leaders. The complainant then goes on to argue that Shead should have contacted her if Shead had concerns about her interpersonal problems reported by other team leaders but did nothing, and that if Shead had contacted her she would have found out what the problem was. Apparently, the complainant blames her interpersonal problems with other team leaders as resulting from being "drained" from having to deal with "all the Sexual Harassment." However, there was no evidence which showed that the other team leaders were themselves engaging in sexual harassment of employes or that the other team leaders had somehow failed to cooperate with the complainant in her efforts to "deal with" complaints of alleged sexual harassment, thereby causing her to feel "drained." Furthermore, the evidence shows that Shead's concern regarding the complainant's interpersonal relationship with other team leaders related to her inability to take criticism in that she would become very nervous and defensive when criticized. Finally, the complainant apparently claims that she was retaliated against when not hired for an Environmental Services Coordinator position because Sharilyn Junior "wanted to get rid of her" because Ms. Junior had not properly reported allegations of sexual harassment that she (complainant) had brought to Ms. Junior's attention. This claim also fails to have support in the record. Moreover, it is clear from the record that Sharilyn Junior was not involved in determining who would be hired for an Environmental Services Coordinator position. Ms. Junior was an applicant for such position herself. The evidence fails to provide reason to believe that the complainant was not hired as an Environmental Services Coordinator because she had reported alleged incidents of sexual harassment.

Based upon its review of this matter, the commission finds that the record fails to establish that Ms. McElroy has shown probable cause to believe that the respondent failed to hire her as an Environmental Services Coordinator because she opposed a discriminatory practice under the Act, or because of her sex.

NOTE: Near the close of the time allowed for the parties to submit written arguments to the commission, Complainant McElroy submitted a letter from Pamela (Austin) Shead dated April 22, 1994, regarding her work performance for the commission's consideration in this matter. However, since the commission's review of the case is based upon the evidence presented at the hearing, no consideration was given this letter in deciding this matter.

cc: Lawrence T. Lynch

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

Footnotes:

(1)( Back ) The other part of the evaluation process involved interviewing the candidates to obtain their responses to a list of standard questions.

(2)( Back ) Ms. Junior's position as manager had also been eliminated and she too was among the pool of candidates for an Environmental Services Coordinator position.