Wis.LIRC ER Decision: Kue - October 24, 2000 - Race discrimination - no discrimination where Hmong applicant did not have required journeyman plumbing license or ability to obtain one

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

TOM KUE, Complainant

CITY OF SHEBOYGAN, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199802891, EEOC Case No. 26G981892

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, except that it makes the following modification:

Paragraph 2 of the FINDINGS OF FACT is deleted and the following paragraph is substituted therefor:

"On or about July 10, 1998, Kue went to the City of Sheboygan City Hall to apply for the position of Plumbing/Environmental Inspector. While there, Kue noticed that the City of Sheboygan also had an opening for the position of Weights and Measures and Housing Inspector."

DECISION

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

Dated and mailed October 24, 2000
kueto.rmd : 125 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The complainant, who is Hmong, alleges that he was not hired by the City of Sheboygan for the position of Plumbing/Environmental Inspector or the position of Weights and Measures and Housing Inspector because of his race. The evidence fails to support the complainant's claim of race discrimination. For the position of Plumbing/Environmental Inspector, the City of Sheboygan requires that candidates possess a journeyman plumbing license, or be able to obtain a journeyman plumbing license in one year. To obtain a journeyman plumber's license an individual must have completed a five-year plumbing apprenticeship program and passed the journeyman plumber license examination. While the complainant had some experience performing plumbing work, he had no plumbing apprenticeship experience. (1 ) The City of Sheboygan requires that its plumbing/environmental inspectors be licensed journeyman plumbers in order to qualify as a "certified plumbing city." It has had this requirement for ten years. As a certified plumbing city the respondent is allowed to approve plumbing building plans, for a fee, eliminating the need for builders to send their plans to Madison for state approval.

The position of Weights and Measures and Housing Inspector was a position represented by City Hall AFSCME Local 1564. Under the collective bargaining agreement between Local 1564 and the respondent, the respondent was required to fill a job opening with a qualified Local 1564 union member submitting an application during the five-day internal posting period before considering outside applicants. On the last day of the internal posting period the respondent received an application from a qualified member of Local 1564 and hired that individual for the position.

On appeal the complainant argues that he went to the Sheboygan City Hall to apply for the Plumbing/Environmental Inspector position and that the respondent "lied about the job (he) asked to apply for." The complainant argues that he believes the respondent lied about this "to make it look as if the receptionist, Vicki Leonhardt, never had denied me an application as I had asked for one." While it was stated incorrectly in finding of fact no. 2 of the ALJ's decision that the complainant went to apply for the "Weight & Measures and Housing Inspector" position and noticed that there was also an opening for the Plumbing/Environmental Inspector position, the respondent has always acknowledged that he wanted to apply for both of these positions. The respondent asserts, and the complainant agrees, that what Leonhardt told him was that he could use one application to apply for both positions, that a copy would be made and submitted for each position. The respondent states that allowing an applicant to fill out only one application to be considered for multiple positions is in keeping with a long standing policy of the city, which is applied equally to all applicants.

Also, because Leonhardt apparently asked the complainant about his qualifications for the Plumbing/Environment Inspector position due to the requirement that one possess a journeyman plumber's license, the complainant raises on appeal the question of whether or not Leonhardt had asked other applicants who did not have a journeyman license "the same questions as I attempt to apply for the position of Plumber/Environmental Inspector." While this inquiry on the part of the complainant is understandable, it is an inquiry that the complainant (complainant was represented by counsel) should have pursued at the hearing. Testimony was given at the hearing by the respondent that Human Resources personnel are encouraged to point out to applicants when there are special qualifications required for a job, as a service to applicants. Also, the complainant admits that Leonhardt told him that he could "give it a try" and that she took his application even though having been told that if he did not have a journeyman plumber's license he might not be qualified.

Next, referring to the Weights and Measures and Housing Inspector position, the complainant argues that he believes the respondent "lied when they said that they did not post this position internally before it was open to the public." (Underlining emphasis added). The point the complainant seeks to make here is not real clear. The testimony by the respondent regarding the internal job posting was that the internal posting period ran from July 8 through July 14, 1998, but that "(t)he decision was also made to advertise outside at the same time because of the need to fill the position quickly and because (John Becker, then the HR Director) didn't foresee anyone from within the union being interested in the position." Exhibit 2 at page 2 shows a copy of a fax by the respondent to a local newspaper dated July 8, 1998, requesting that an ad for the Weights and Measures and Housing Inspector position be run on July 12, 13 and 14. Becker testified that at the end of the day on the last day of the internal posting period, however, the respondent received an application from a qualified Local 1564 union member.

Finally, although characterizing the ALJ as "a good person," the complainant argues that the ALJ "repeatedly makes (sic) intimidating remarks and facial gesture (sic) toward my lawyer and me as we present (sic) my case." As a result of this allegation, the taped recording of the hearing was reviewed. Upon review, it was discovered that although a substantial portion of the hearing record exists, parts of hearing were not recorded due to either mechanical failure of the tape recorder or malfunction of the tape cassette. Accordingly, the commission could not determine with absolute certainty whether or not there is any merit to the complainant's allegation. However, there is absolutely no indication in the substantial portion of the record that exists, which would lend any credence to the complainant's allegation. Moreover, in addition to noting that the complainant has failed to specify what intimidating remarks and facial gestures the ALJ allegedly made, the commission notes that the record clearly shows that the complainant failed to establish that he was denied hire for either the Plumbing/Environmental Inspector position or the Weights and Measures and Housing Inspector position because of his race. Accordingly, the commission has affirmed the dismissal of the complainant's complaint in this matter.

cc: Koua C. Vang
Stephen G. McLean

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Footnotes:

(1)( Back ) Possession of a master plumber license (a license superior to that of the journeyman plumber license) would also have entitled the complainant to be considered for the position of Plumber/Environmental Inspector. However, graduation from an accredited engineering university or college with a degree in civil engineering, mechanical engineering or other approved engineering curriculum related to plumbing, plus taking and passing the master plumber license examination was required in order to become a licensed master plumber. The complainant had a Bachelor of Science degree in Management of Building Construction, but did not have a degree in civil engineering or mechanical engineering. In completing the requirements for his degree in Management of Building Construction, the complainant had taken a course called "Environmental knowledge of Plumbing/Electrical," but it was not shown to be part of an "approved engineering curriculum related to plumbing."