LINDA SZEWCZYKOWSKI, Complainant

CITY OF NEW BERLIN, Respondent A

CHIEF CHARLES SCHROEDER, Respondent B

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 August 30, 2001
szewcli . rsd : 125 : 9  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The complainant, Linda Szewczykowski, alleges that she was discriminated against on the basis of sex when the respondent promoted males to the positions of Training Sergeant and Youth Services Sergeant instead of promoting her to either of those positions.

In her petition for review, the complainant argues that she believes that she was more qualified for the Training Sergeant position than Robert Scrima, the male promoted to that position. The complainant argues that she was more qualified because she has a Bachelor of Science degree in Criminal Justice (while Scrima has 96 credits towards his degree), she has 5 more years of service with the police department, she had been a Training Corporal for 14 months versus 12 months for Scrima, and that she had done 12 or more years of training both with the department and at Waukesha County Technical College and had attended over 1700 hours of training classes.

The complainant's argument fails. First, the complainant failed to present any evidence as to what qualifications were required for the Training Sergeant's position. The complainant admitted that a college degree was not required for the position. Furthermore, prior to the complainant's promotion to the Training Corporal position in 1996, Scrima had been Acting Corporal, received Corporal's pay and wore Corporal's stripes. Moreover, the complainant voluntarily left the Training Corporal position in January 1998, despite an announcement in June 1997 by then-Chief Neuens that it was his goal to upgrade the Training Officer's position to Sergeant, and despite Neuens' having told the complainant that he did not want her to leave the Training Corporal position. Additionally, with respect to training, the evidence shows that another male applicant, Gary Monreal, who had more training than the complainant in defensive tactics and instruction, is certified by the State of Wisconsin in defense and arrest tactics as a "train the trainer" instructor, which the complainant is not, and who has received many more professional instructor certifications than the complainant, was not awarded the position either.

The complainant also argues that the respondents' reasons for promoting Scrima instead of her is pretextual. As support therefore, the complainant argues that she had previously sought promotions without success while males that were hired after her were promoted before her, because there are very few females in the police department and they have been subjected to a pattern of unequal treatment because there are only 6 female police officers employed in the police department and only 1 of 6 (herself) has a supervisory role, and because the decision-making body in the promotion process consisted solely of males. These arguments also fail. With respect to the previous promotions sought, the complainant failed to present any evidence to show what the qualifications were for those promotions and whether or not she met them. Similarly, the complainant has failed to show how many qualified women had applied for police officer positions and were turned down, or whether any of the five female officers besides herself had ever applied for any promotions to supervisory positions. The mere fact that the decision-making body consisted of males, alone, is not sufficient reason to conclude there is probable cause to believe the complainant was discriminated against on the basis of her sex.

The complainant again cites her educational accomplishments, experience at the New Berlin Police Department and departmental training classes that she had attended as evidence of her qualifications for the Youth Services Sergeant position. Once again, however, the complainant failed to present any evidence as to what qualifications were required for the Youth Services Sergeant position. Nor has she shown that the male candidate selected, Brian Johnson, had similar or lesser qualifications than she did.

In fact, the evidence shows that Johnson had worked in the Youth and Family Services Division of the police department for 8 years prior to applying for the Sergeant's position, whereas the complainant had never worked in that division. Johnson was a member of the Waukesha County Juvenile Officer's Association, the Wisconsin Juvenile Officer's Association and had gone to the Delinquency Control Institute in 1992, whereas the complainant had no similar affiliations with such associations nor had she received any specialized training at a delinquency institute. Indeed, Johnson's education and experience with specialized training relating to juveniles and juvenile matters far exceeded the complainant's education and experience in those areas. Further, Johnson was involved in developing the police school liaison program at the New Berlin West Middle and High Schools, whereas the complainant had no similar experience.

At the time of her interview for the Youth Services Sergeant position, the complainant had had no recent contacts with juveniles. Moreover, a question also existed as to whether the complainant was committed to fulfilling the long-term requirements of the Youth Services Sergeant position. During her interview for the Youth Services Sergeant position, when asked about her long-term goals the complainant stated that she wanted to get into the Administrative Division and seek a Lieutenant's position. The Youth Services Sergeant position required a long-term commitment, which ran counter to the complainant's stated goals.

As argued above in connection with the Training Sergeant position, the complainant repeats her arguments made there as to why the reasons the respondents cite for Johnson's promotion instead of her are pretextual. These arguments fail for the same reasons stated above, however.

A further argument made by the complainant is that because Johnson was allowed to submit his resume late, this shows that the reasons the respondents gave for not promoting her to the position of Youth Services Sergeant were pretextual. However, having carefully reviewed the testimony and evidence presented in this case, the commission is entirely unpersuaded that this in any way established that the respondents' reasons for not promoting her were a pretext for sex discrimination.

Finally, the commission notes that Chief Charles Schroeder, named as a respondent in this matter, should not have been named separately as a respondent since the alleged discriminatory action claimed herein arose out of actions taken by him as an agent of the City of New Berlin Police Department and the complainant has not alleged that he was acting outside the scope of his employment when taking that action. See Yaekel v. DRS Limited and Bryan Clapper (LIRC, 11/22/96).

NOTE: In reaching its decision in this matter, the commission has not considered the affidavit of City of New Berlin Police Chief Daniel Noordyk that was submitted with the respondent's reply brief. As noted by the complainant, the commission is required to base its review solely upon the sworn testimony and documentary evidence submitted at the hearing and will not consider nor address documents presented for the first time on appeal. Butler v. City of Madison (LIRC, 11/27/00). The complainant's request that the respondent be sanctioned for submitting such evidence, however, is hereby denied.

cc: 
Attorney Sylvia B. Geiger
Attorney Gregg J. Gunta

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uploaded 2001/09/04