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

LINDA MARTIN, Complainant


ERD Case No. 199900517, EEOC Case No. 26G990695

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 February 26, 2003
martili . rsd : 115

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


The parties debate whether complainant succeeds here in establishing a prima facie case of race discrimination within the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  Respondent argues that complainant has not and that, as a result, the analysis need not proceed to the succeeding stages.

The parties' debate in this regard appears to center on respondent's argument that complainant is required to show as part of her prima facie case that she was more qualified than the successful candidates. However, an inference of discrimination can be drawn not only from circumstances in which the complainant's qualifications are greater than those of the successful candidate, but also from circumstances in which the complainant's qualifications are similar to those of the successful candidate, as we have here. Brill v. Lante Corp. 119 F.3d 1266, 74 FEP Cases 614 (7th Cir. 1997); Sample v. Aldi Inc., 61 F.3d 544 (7th Cir. 1995) There is also authority for the proposition that, where the entire case has been tried on the merits, and the parties have fully tried the question of whether the employer's actions were pretextual, the question of whether a prima facie case has been established "is no longer relevant." U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983)

In her petition, complainant contends that respondent's failure to utilize its standard recruitment/selection process demonstrates pretext. This contention relies upon a fundamental misapprehension of what constitutes respondent's standard process. As the record shows, there are two basic stages to this process, the pre-certification stage and the post-certification stage. The pre-certification stage is carried out by the City of Milwaukee's central personnel unit, the Department of Employee Relations (DER). DER receives and processes the hiring authority's request to staff the position, approves the position description, advertises the vacancy, screens applications, administers an exam, develops a list of eligible candidates based on the results of the exam, and, from this list, generates a list of certified candidates to forward to the hiring authority. The post-certification stage is carried out by the hiring authority which interviews the certified candidates, and, based on the results of the interview and any other selection mechanism it may have employed, selects the successful candidate.

Here, the hiring authority was the Board of School Directors of the Milwaukee Public Schools (MPS). Consistent with the standard process, DER received the request to staff the two subject CMT positions from MPS, approved the CMT position description, advertised the vacancies, screened the applications, administered an oral exam, developed a list of eligible candidates, and, from this list, generated a list of four certified candidates and forwarded it to MPS. Consistent with the standard process, MPS then convened an interview panel, interviewed the four certified candidates, and made its selection based on the results of the interview. Complainant argues that, in contrast to the process followed when Sue Macaluso was hired for a CMT position, complainant was required to undergo two interviews, not one. However, complainant was not required to undergo two post-certification interviews here. What she characterizes as her first interview was actually her pre-certification oral examination by the DER. Macaluso did not undergo such an oral examination because, in her case, which was not uncommon, the DER administered a written pre-certification examination rather than an oral one.

Complainant also argues that the post-certification interview process must have been discriminatory because the minority candidates, who were ranked first and second on the certification list, were not selected. However, the record establishes that pre-certification rankings do not carry over into the post-certification process, i.e., all candidates on the certification list are considered to be competing on an equal basis. Moreover, the record does not show that there was any bias in the post-certification interview/selection process. In particular, the record shows that the interview panel was balanced as to race, that there was consistency among the interviewers as to the scoring of the interviews, that there was consensus among the panel members as to the ranking of the top two candidates, and that the interview questions and scoring criteria were reasonably job-related.

Complainant's second pretext argument in her petition is that the change in the hiring criteria for the subject positions shows an intent to discriminate against her. Previously, the hiring criteria had emphasized elementary school experience, but, for the subject hire, the criteria were expanded to include experience in other settings. The record confirms that these changes were made to reflect real changes that had evolved in the duties and responsibilities assigned to the CMT positions. The record also shows that the criteria had been changed before respondent had any reason to know who would be applying for the positions and, as a result, could not have been tailored to fit the qualifications of certain candidates.

Complainant also argues in her petition that respondent's decision to fill only two of the three vacant CMT positions demonstrates pretext. However, again, this decision was made prior to the subject recruitment, as reflected by the fact that the request to staff the CMT positions, the action which initiates the recruitment/selection process, referenced two CMT positions, not three. (Testimony of Myra Vachon, Transcript, Volume 1, page 168) As above, this decision was made before respondent could have known who would be applying for the positions, i.e., before respondent could have known whether filling only two of the three authorized positions would work to the benefit or detriment of any particular candidate. Moreover, the reason offered by respondent, i.e., budget concerns, is credible given the showing in the record that the City of Milwaukee and MPS faced budget shortfalls and uncertainty, as well as by the showing in the record that the third authorized position had still not been filled two years after the subject recruitment.

Complainant further contends in her petition that the fact that the memo authored by her former supervisor, principal Victor Brazil, appeared in her personnel file and was distributed to the members of the interview panel, demonstrates pretext. However, even though it may have been a violation of relevant requirements for the memo to have been placed in complainant's personnel file, this alone does not demonstrate race discrimination, particularly where, as here, the author of the memo is black; Ariens, the person who made the decision to extract the memo from complainant's personnel file and provide copies of it to the members of the interview panel did so in reliance upon the advice of the custodian of the file; the ALJ found credible Ariens' testimony that, if she had found similar information in the personnel files of the other candidates, she would have handled it the same way; the opinion as to complainant's work performance voiced in the memo was echoed by Sallie Brown, a black female member of the interview panel; and Ariens obtained reference information from current/former supervisors of the other candidates, and Brazil was one of complainant's former supervisors.

Finally, complainant argues in her petition that the fact that there are no blacks in CMT positions is evidence of pretext. First, this case has not been argued as a disparate impact case but instead as a disparate treatment case. Moreover, although evidence that respondent discriminated against prior candidates for CMT positions based on their race may have been relevant to the analysis here, this has not been established by complainant.

Complainant has failed to demonstrate that the reason articulated by respondent for its decision not to select complainant for one of the subject CMT positions was a pretext for race discrimination.

Finally, earlier in these proceedings, the ALJ dismissed that part of complainant's charge of discrimination relating to respondent's failure to promote her in 1989 and 1993. Complainant has not requested in her petition that the commission review this decision of the ALJ and, as a result, the commission does not address it here.

Attorney Phillip J Ramthun
Attorney Marynell Regan

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uploaded 2003/03/10