P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

DOROTHY LOWE, Complainant


ERD Case No. 9203351, EEOC Case No. 26G921928

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on December 15, 1993. Complainant filed a timely petition for review by the commission. Both parties submitted written argument in support of their positions.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed January 11, 1995

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner


In her petition for commission review the complainant's attorney suggests that the burden of proof allocations relied upon by the administrative law judge in this matter were erroneous and that, in fact, once the complainant established a prima facie case of age discrimination, the burden of persuasion should have shifted to the respondent to establish that the adverse employment decision was not discriminatory. The complainant's attorney reasons that the establishment of a prima facie case creates a rebuttable presumption that unlawful discrimination occurred and that, pursuant to the Wisconsin Rules of Evidence as they pertain to presumptions, once a party has established certain facts that are prima facie evidence of other facts, the burden of proving the nonexistence of the presumed fact is shifted to the party against whom the presumption is directed. Section 903.01, Wis. Stats. The complainant avers that reliance on this portion of the Wisconsin Rules of Evidence is consistent with the United States Supreme Court's reliance on subsection 301 of the Federal Rules of Evidence in determining that, under federal employment discrimination law, the establishment of a prima facie case shifts only the burden of production to the opposing party. See St. Mary's Honor Center v. Hicks, 113 S.C. 2742, 62 FEP Cases 96 (1993). The complainant also points out that the North Dakota Supreme Court recently applied the North Dakota Rules of Evidence, which contain a rule on presumptions virtually identical to the Wisconsin rule, to an employment discrimination case arising under the North Dakota Human Rights Act and concluded that once the plaintiff establishes a presumption of discrimination the burden of persuasion is shifted to the defendant. Schweigert v. Provident Life Insurance Co., ND S. St., 503 N.W.2d 225, 62 FEP Cases 443 (1993).

The same argument was recently considered and rejected by the commission in Franklin v. The Foxboro Company (LIRC, November 16, 1994). In Franklin, the commission reviewed established Wisconsin case law on the subject and held that, pursuant to such case law, the burden of proving discrimination rests squarely upon the complainant, even after the prima facie case has been established. For example, in Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 732 (Ct. App. 1985), an age discrimination case arising under the Wisconsin Fair Employment Act, the Court of Appeals adopted the same allocation of burdens as that utilized by the federal courts in deciding federal employment discrimination cases. The court stated in relevant part:

"McDonnell Douglas 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 803, 805; see also Hamilton v. DILHR, 9 Wis. 2d 611, 619, 288 N.W.2d 856, 860-61 (1980). In age discrimination cases, the ultimate burden of persuading the trier of fact that age was a determining factor rather than merely a factor remains at all times with the plaintiff. La Montagne v. American Convenience Products, Inc., 750 F.2d 1405, 1409 (7th Cir. 1984)."

Puetz, at 126 Wis. 2d 168, 172. (1) The commission, therefore, concludes that, irrespective of section 903.01 of the Wisconsin Rules of Evidence, the respondent's burden in a case arising under the Wisconsin Fair Employment Act is one of production, rather than persuasion, and that it is for the complainant to establish by a preponderance of the evidence that the respondent's actions were based upon prohibited factors.

The complainant also argues that, even without regard to the burdens of proof, the respondent's explanation that Mayor De Broux wanted to select his own person as secretary was a pretext for discrimination. The complainant notes that she had unique qualifications and experience for the position and that, further, Mayor De Broux knew her and knew that he and the complainant were compatible and that there was no reason the complainant could not become his "own person." While it is undisputed that the complainant was well-qualified for the position and that she and Mayor De Broux were acquainted with one another and had not proven to be incompatible, the commission does not agree that the respondent's explanation for its actions is a pretext for discrimination. The commission credits the mayor's explanation that he wished to personally select the individual who would be serving as his right-hand person and, when viewed in its political context, concludes that this explanation does constitute a legitimate non-discriminatory reason for the respondent's actions. While it is certainly understandable that the complainant, who was well-qualified for the position and was discharged due to no fault of her own, may regard her termination as wrongful or unfair, an employer is entitled to make a decision to terminate based upon rationale which might be considered unjust or wrongheaded, provided that discriminatory factors played no role in the decision. Because the commission does not believe that the decision to discharge the complainant was based upon discriminatory factors, the administrative law judge's dismissal of the complainant's complaint is affirmed.

NOTE: Although the complaint in this matter included allegations that the complainant's age was a factor in the respondent's decision not to select her for other clerical positions for which she applied subsequent to her termination as secretary to the mayor, the commission has not considered these issues. While the filing of a petition for review by either party vests the commission with jurisdiction to review the entire decision, the commission will generally not exercise jurisdiction over issues that are neither expressly nor implicitly raised in a petition for review. Dude v. Thompson (LIRC, November 16, 1990). Because the sole issue raised in the petition related to the question of whether the complainant's termination was discriminatory, the commission has confined its review to that issue.

John S. Williamson, Jr.
Michael J. Cieslewicz

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(1)( Back ) See also, Kovalic v. DEC International, Inc. 161 Wis. 2d 863, 875, 469 N.W.2d 224 (Ct. App. 1990)(Once the plaintiff proves a prima facie case, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the discharge--to produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus).