STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)
BONNY BURAN, Complainant
MENOMONEE FALLS SCHOOL DISTRICT, Respondent
FAIR EMPLOYMENT DECISION
ERD Case No. 199600643, EEOC Case No. 26G960744
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 March 17, 2000
buranbo.rsd : 125 : 9
/s/ David B. Falstad, Chairman
/s/ Pamela I. Anderson, Commissioner
/s/ James A. Rutkowski, Commissioner
Complainant Bonny Buran appeals from the ALJ's decision which dismissed her claims of alleged discrimination on the basis of sex, and her claim that she was retaliated against for making a complaint under the Act. Buran argues that the ALJ's conclusions that the respondent did not violate the Wisconsin Fair Employment Act by discriminating against her on the basis of sex with regard to compensation and in her terms and conditions of employment are not supported by the evidence. Further, Buran argues that the respondent retaliated against her for filing a complaint alleging discrimination on the basis of sex.
Buran argues on appeal that the position of Home/School Liaison, which she held, and that of the Activity and Student Relations Coordinator, which was held by Jerome Cockerham, were substantially equal jobs that required equal skill, effort and responsibility but Cockerham was paid forty to fifty percent more than she. Buran argues that their jobs were substantially equal because both shared a common core of tasks which involved disciplining, monitoring and supervising students, managing problems with bus companies and handling bus write-ups, maintaining substantial contact with students' parents and members of the community, routinely interacting with their school's principal and assistant principal, participating in similar and identical school meetings and functions, arranging speakers and working with Chapter 220 students.
Buran was employed as a Home/School Liaison at the respondent's Benjamin Franklin Elementary School beginning with the 1989-1990 school year through the 1994-1995 school year. Effective with the 1995-1996 school year she was employed as a teacher's aide. Cockerham was hired as the Activity and Student Relations Coordinator at the respondent's North Middle School beginning with the 1990-1991 school year. Buran filed her complaint alleging discrimination with respect to her compensation and terms and conditions of employment on February 16, 1996.
In order to establish a claim of sex discrimination with respect to compensation, Buran was required to prove either that the respondent paid different wages to employes of the opposite sex for substantially equal work on jobs the performance of which required equal skill, effort and responsibility, and which are performed under similar working conditions, or that the respondent was motivated by gender discrimination in setting her compensation or other terms and conditions of employment.
Buran criticizes the administrative law judge's decision, arguing that he did not look at the common core of tasks that she and Cockerham engaged in, but focused on Cockerham's ability to suspend students and then concluded his analysis. Buran argues that both she and Cockerham were responsible for monitoring, supervising and disciplining students, and that they both had the ability to independently discipline students. Buran argues that she did not suspend students because it was an uncommon event at her elementary school, and that when the common responsibilities and tasks that both individuals performed are examined it is clear that both performed substantially similar jobs but she was significantly under compensated.
Buran's arguments fail. To begin with, Buran and Cockerham's positions were created for entirely different purposes and served different functions. The impetus for the creation of the Home/School Liaison position was, in part, the influx of students from the City of Milwaukee into the respondent school district as a result of the Chapter 220 program. The district's administration believed, at the time, that it would be valuable to have individuals who would be able to devote time to communications between the district and the parents of students. This belief was based, in part, on the understanding that increased communication between school and home was integral to the success of the Chapter 220 program. The job description for the Home/School Liaison position included the following duties: Serving as a member of a support team headed by the building principal; assisting in making parental contacts for voluntary transfer students and facilitating necessary meetings between parents and district staff, and serving as an in-school supervisory resource for students in dealing with personal emergencies during the school day. From its inception, until the position was eliminated at the end of the 1994-1995 school year, this position was part of the Teacher Aide bargaining unit in the district, with wages and benefits paid pursuant to the salary schedule for that unit.
In contrast, the Activity and Student Relations Coordinator position arose due to a need for administrative assistance in running North Middle School. There had been a number of new programs created for students which occurred during lunch hours, after school and at night, which even with the two principals at North Middle School it was not possible for the school administration to be present at all these different programs and attend to other matters they were involved in. Moreover, in terms of general supervision during the day, the two principals needed administrative assistance in managing and running a school with upwards of 800 middle school students, including all of the attendant supervisory and disciplinary issues involved with a school of that size and with students of that age. The job description for the Student Activities and Student Relations Coordinator position included the following duties: Providing general campus/building supervision; assisting administration in dealing with student discipline referrals and assisting in the supervision of the after school co-curricular program. Unlike the Home/School Liaison position, the Activity and Student Relations Coordinator position was not part of a bargaining unit and was a contracted position.
Comparing the actual job duties they performed, with respect to monitoring, supervising and disciplining students, it was not just that Cockerham had the ability to suspend students (Cockerham averaged 30 to 40 per year) that made his job different from that of Buran's, but also the fact that throughout his employment 80 to 90 percent of his time involved duties related to student discipline. Buran is unable to point to any evidence to show that she spent anywhere near as much time on disciplinary matters. Cockerham possessed the same disciplinary authority as the principal and associate principal at North Middle School. This included responsibility for resolving conflicts, handling disciplinary write-up slips and deciding consequences for student misconduct, including giving detention and in/out-of-school suspensions. While Buran argues that she did not suspend students because it was an uncommon event at her elementary school, the fact of the matter is that Buran never had authority to suspend a student at her school, that authority resided solely with the principal and assistant principal. To the extent that Buran had had involvement with disciplinary matters, as of 1992 when James Schuldenberg became the assistant principal at Benjamin Franklin Elementary, Schuldenberg had taken on the bulk of responsibility involving disciplinary matters. After Schuldenberg's arrival Buran's role in discipline was primarily that of monitoring students who had been given "time outs," who had lost their recess privileges, who had been given in-school detentions, and occasionally monitoring of students who had been given after-school detentions. Indeed, Buran placed the percentage of her day spent monitoring children at 70 percent. Cockerham had no responsibility for monitoring students. Buran could attempt to resolve situations where she had observed inappropriate behavior by students, including writing out misconduct reports, but any adult at the school could write out a misconduct report if they observed inappropriate student behavior. The only other limited circumstance in which Buran was involved with discipline was if a large number of bus write-ups or misconduct reports had come into the office that Schuldenberg had not been able to handle and he had delegated Buran authority to handle them.
Responsibility with regard to discipline did not end the substantial differences between Buran and Cockerham's jobs, however. For example, when the principal and associate principal were away from the school, Cockerham was in charge of the entire school operation, and the person teachers and staff were directed to for answers to their questions and to handle medical emergencies or other crises. Buran was not the person in charge of the school when the principal and assistant principal were away from Benjamin Franklin Elementary School; a regular school teacher was assigned that responsibility. Also, Cockerham maintained the same responsibility for building security as the principal and associate principal, which included checking to see that teachers were in their rooms, that students were in their rooms and not in the hallways, that visitors were directed to the office, and looking for anything unsafe. Buran had no responsibility for building security. Cockerham also served as the main contact with the bus companies that provided bus service to the middle school. Cockerham had daily contact with the bus companies and was independently responsible for making arrangements to meet with bus company officials on matters involving student and bus driver misconduct. Buran did on occasion meet with bus drivers when assigned to handle bus write-ups but she had no independent authority to handle bus write-ups and had no off-site meetings with bus company officials concerning bus write-ups. These differences are not an exhaustive list of the differences in Cockerham and Buran's job responsibilities.
The evidence is overwhelming that Buran's job was not substantially equal to the job of Cockerham.
Buran has presented no factual argument on appeal in support of her claim that the respondent was motivated by gender discrimination in setting her compensation, or with regard to her other terms and conditions of employment. Indeed, the record is devoid of any evidence that Buran's gender motivated the respondent's setting of her compensation or in her other terms and conditions of employment.
In a retaliation case the employer's motivation is the ultimate issue. In order to establish a prima facie case of retaliation, Buran was required to show (1) that she was engaged in statutorily protected expression; (2) that she suffered an adverse action taken by the employer, and (3) that there was a causal link between the protected expression and the adverse action. As noted above, Buran filed her complaint of discrimination against the respondent on February 16, 1996. In an effort to support a claim of retaliation, Buran characterizes a meeting she had with the principal, Margaret Tackes, and Schuldenberg on April 30, 1996, as one in which she was "subjected to a barrage of negative criticism" which brought her to tears, and as having occurred "shortly" after she had filed her complaint of discrimination. First of all, the undisputed evidence shows that it was Tackes' idea to meet with Buran on April 30, 1996, and, Tackes testified that she had no knowledge of Buran's complaint at the time of this meeting. Buran apparently claims that Tackes had knowledge of her complaint before the meeting, however, asserting that "Schuldenberg acknowledged in deposition testimony that prior to the April 30, 1996 meeting, the filing of Ms. Buran's discrimination complaint was known among administrators in the school district." This argument must be ignored. The record contains no deposition testimony by Schuldenberg that prior to the April 30, 1996 meeting, the filing of Buran's discrimination complaint was known among school district administrators. The only deposition testimony of Schuldenberg referenced in the record was his statement that the administration learned of Buran's complaint in the "spring of the year." At the hearing, although indicating some uncertainty as to the exact timeline, Schuldenberg testified that it was his recollection that it was after the April 30 meeting when it was learned about Buran's complaint.
Second, the record does not support Buran's characterization of the April 30, 1996 meeting. At the time of the April 30 meeting Buran was nearing the finish of her first year as a teacher's aide, the Home/School Liaison position having ended after the 1994-1995 school year. Over the course of the 1995-1996 school year several teachers for whom Buran was working had come to Tackes, expressing their discontent with Buran's work. Tackes asked Buran to come and meet with her and Schuldenberg. At the meeting Buran began talking about her position as an aide, stating that she did not care for the tasks that the aides had to do, and in fact, stated that this position was a waste of taxpayers' money. Schuldenberg responded that the work of aides was important, and that it saved a lot of time for teachers. Tackes then relayed to Buran that a number of teachers had reported that she appeared disgruntled, was not happy in the position, that something was wrong and that she was very slow in her work. Buran became very emotional and began crying. Contrary to argument by Buran, the evidence fails to show that she was "severely criticized," or "subjected to a barrage of negative criticism." Indeed, Buran herself conceded that Tackes was compassionate towards her during the meeting, at one point going out to get her some water, and also in suggesting that she take some time to compose herself before leaving because Tackes did not want her driving home in the condition she was in. Further, Buran conceded that the next morning Tackes sought her out and told her that she (Tackes) had said a prayer for her.
Buran also apparently suggests that an inference of retaliation can be inferred because prior to the April 30 meeting she had always received positive feedback regarding her performance from Tackes, citing a number of notes introduced as Exhibit 43 where Tackes had praised her skills working with children, and because she was never given the names of the teachers who complained about her work performance. These assertions also fail. The Exhibit 43 notes indicate that this positive feedback related to Buran's work as a Home/School Liaison, not as a teacher's aide. Further, there was no contention that Tackes' concern with Buran's work performance involved her work with children. The reports Tackes received involved the clerical duties aides were expected to perform. With respect to not being given the names of teachers who complained about her work performance, Buran never asked Tackes for their names, either at the April 30, 1996 meeting or at the hearing when Tackes was being cross-examined.
Buran also apparently suggests that evidence of retaliation exists because Tackes testified that complaints about her started in September 1995 but Tackes waited until the end of the school year to inform her of the complaints. This argument also fails since the evidence shows that Tackes' meeting with Buran was not of a disciplinary nature. Buran received no written reprimand of any kind, no disciplinary warning, and nothing was placed in her personnel file regarding that meeting.
Buran argues, however, that after the April 30, 1996 meeting, her job responsibilities were altered dramatically. Buran argues that her schedule changed from one in which she reported directly to the principal and independently performed tasks to one in which her time was broken down into 15-20 minute blocks of times and it was up to the teachers she was assigned to decide what she would be doing at all times. As noted by the respondent, there is not credible evidence in the record that would support a finding that Buran was subject to an adverse change.
".the record demonstrates that Mrs. Buran herself testified with uncertainty as to whether any change took place after the April 30 meeting as follows: `I think that I received a different schedule.' (Tr., p. 157)(emphasis added by respondent). In contrast, however, Mrs. Buran also testified that both before and after this meeting, she continued to work on projects, such as tutoring, and Good Behavior parties. (Tr., pp. 157-58; 180-81). She also testified that, both before and after this meeting, she worked in numerous classrooms. (Tr., p. 172). Mrs. Buran thus failed to show how her schedule, even if it was changed, was different from her previous schedule in terms of duties, responsibilities or authority."
Respondent's brief, p. 40.
As stated by the administrative law judge:
"In taking the facts and circumstances as a whole, the Complainant has failed to show that the Respondent's articulated reason(s) for the meeting-essentially to discuss concerns about the Complainant's job performance-were a pretext for unlawful retaliation based on the Complainant having previously filed a discrimination complaint under the Wisconsin Fair Employment Act, sec. 111.31, et seq. (in ERD Case No. 199600643). The complainant believes her schedule was changed after the meeting, but the evidence is not sufficient to support that any alleged schedule change was the result of unlawful retaliation."
Based upon all of the above reasons, the commission has affirmed the dismissal of Buran's claims of alleged sex discrimination and retaliation.
Michael O. Bohren
Sean M. Scullen
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