Wis.LIRC ER Decision: Kallas - July 7, 2000 - Sex discrimination - disparate treatement not shown re hiring for county veteran service officer -- "disparate impact" with respect to sex from reliance on combat service experience not shown where such reliance shown only in this individual case and not as a matter of practice

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

MARY A KALLAS, Complainant

COUNTY OF GREEN LAKE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199704064, EEOC Case No. 26G980087

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 July 7, 2000
kallama.rsd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

MEMORANDUM OPINION

On appeal the complainant argues that the administrative law judge erred in dismissing her claim of sex discrimination under the disparate impact and disparate treatment theories, and in dismissing her disability discrimination claim.

First, apparently taking issue with that portion of the ALJ's decision near the top of page 8 where he states that the respondent's burden was only to produce evidence of a non-discriminatory reason for its decision, the complainant asserts that "subsequent to being sued for discrimination, any agency can come up with an alleged non-discriminatory reason to mask their real intentions." However, under the allocation of burdens and order of presentation of proof in claims of alleged disparate treatment as established by case law, once the employer has articulated a legitimate, non-discriminatory reason for its actions, in order to prevail it is the complainant's burden to prove by a preponderance of the evidence that the legitimate reasons offered were not the employer's true reasons, but were a pretext for discrimination. See, for example, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981); and Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

Next, the complainant asserts that she disagrees with the ALJ's conclusion that based on the reasons given by three of the members from the interview panel that there was a non-discriminatory reason for its hiring decision. The complainant first argues that the ALJ admitted that the testimony of two of the panel members was not credible. She then argues that therefore only one panel member was able to articulate a non-discriminatory reason for selecting the male candidate, and that since the panel operated on a majority vote, the county did not meet its "burden of persuasion that it selected the male candidate for a non-discriminatory reason. These arguments fail. All three panel members testifying at the hearing did articulate non-discriminatory reasons for their selection of Mr. Beuthin over the complainant. Mr. Schrock selected Mr. Beuthin because he believed that Beuthin's service in Vietnam would give him a special rapport with other veterans who had served in combat. Ms. Skipchak, who was particularly disturbed by the complainant's reference to veterans as "her boys," selected Beuthin over the complainant based on her assessment of their interview performance. Mr. Wallenfang just believed that Beuthin would be a better fit for the job based on Beuthin's interview performance. Further, per testimony by Skipchak, it was her sense that her colleagues on the panel put the same emphasis on performance during the interview as being the differentiating factor as she did, and per the testimony of the county clerk, Margaret Bostelmann, who was present during the interviews to prepare a synopsis of the candidates' interviews, one of the reasons that led the panel to select Beuthin was that he had served in Vietnam and would be better suited to relate to veterans who had combat experience. Schrock, Skipchak and Wallenfang all denied that the complainant's sex played any role in their decision to select Beuthin, and Bostelman testified that no panel member made any reference to either candidate's sex or to the sex of the clientele of the veterans service office.

As noted above, once the employer has articulated a legitimate, non-discriminatory reason for its actions, in order to prevail it is the complainant's burden to prove by a preponderance of the evidence that the legitimate reasons offered were not the employer's true reasons, but were a pretext for discrimination. The complainant has asserted that the ALJ admitted that the testimony of two of the panel members was not credible. This argument also fails. That the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the complainant's allegation of unlawful discrimination is correct. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 62 FEP Cases 96, 106 (1993). The ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the complainant remains at all times with the complainant. Hicks, 62 FEP Cases at 103, citing Burdine, supra. While the ALJ did find that panel member Schrock's hearing testimony that he based his decision to select Beuthin in part on Beuthin's work experience outside the military was not believable, the ALJ concluded, however, that Schrock's true motive for choosing Beuthin over the complainant appears to have been his adherence to the idea that as a veteran who served in a combat zone, Beuthin was better able to relate to those veterans who had also served in a combat zone. Further, the ALJ found that under a disparate treatment theory the complainant could not show that Schrock had seized upon combat service in order to eliminate her because of her sex because there was no showing that service in a combat zone so precluded women that it qualified as a proxy for sex discrimination, and because Schrock appeared to sincerely believe that combat service, not maleness, inherently improved Beuthin's ability to carry out a couple of the basic skills involved in the job- communicating with veterans, and developing and maintaining positive interrelationships with them. It was only panel member Wallenfang's testimony that the ALJ found to be not particularly credible. The ALJ noted, however, that in the context of the other evidence, and given that Wallenfang's vote was only one of seven in a vote to recommend Beuthin to the County Board, which then voted, without any input from Wallenfang, 11 to 6 in favor of Beuthin, the fact that Wallenfang's testimony was unbelievable does not lead to the conclusion that the county's action was discriminatory. The commission agrees with the ALJ's assessment that the preponderance of the evidence simply does not establish that the complainant was the victim of intentional discrimination because of her sex.

The complainant has also argued that by basing a hiring decision on who has served in combat has a disparate impact on females. This argument fails. As noted by the ALJ:

"Under a disparate impact theory, the Complainant would not have to prove intentional discrimination, but would have to show that the use of a `facially neutral' factor with respect to sex (combat service) had a disparate negative impact on women, not only in an individual case, but as a matter of practice. The evidence here did not demonstrate a practice of making this a factor, and therefore could not support a disparate impact theory. See Griggs v. Duke Power, 401 U.S. 424 (1971), Turman v. W.H. Brady Company (LIRC, 10/17/85), Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff'd Winnebago Co. Cir. Ct., 10/27/93).

(ALJ decis. p. 8, fn 4)(Underlining emphasis in original).

Finally, the complainant argues that prior to leaving active duty in the Navy it was determined that she was entitled to a 30 percent service connected disability as a result of suffering from migraine headaches, and apparently, that she was discriminated against on the basis of disability because disabled veterans are given preference points in the hiring process in accordance with Wis. Stat. � 230.16, that she divulged her disability before the interview committee and that the interview committee failed to correctly apply the disabled "veteran preference." These arguments fail. First, Wis. Stat. � 230.16 pertains to state employment, not employment by the County of Green Lake. Second, the record fails to establish that it was at the interview committee level in the hiring process that the County of Green Lake would have given any consideration to veterans' preference points. Further, to the extent that it is the complainant's contention that the interview committee was aware of or believed that her claimed disability reflected negatively upon her ability to perform the job of county veteran service officer, the record also fails to establish that the complainant's migraine headaches played any role in her failure to be hired.

cc: Mary L. Hubacher

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