REBECCA A JOHNSON, Complainant

MENOMINEE INDIAN SCHOOL DISTRICT, Respondent

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 November 28, 2003
johnsor . rsd : 164 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

The question presented in this case is whether the respondent's refusal to adjust the complainant's salary to reflect her years of nursing experience was for discriminatory reasons. The complainant was one of three nurses employed by the respondent, all of whom were paid the same salary. The other two nurses were both Native American females and, although one was over age 40, she was several years younger than the complainant. The complainant had many more years of nursing experience than her two co-workers, but was not credited with that experience in terms of her salary. The commission sees no reason to believe that the complainant was the victim of unlawful discrimination. The complainant was not treated less favorably than her two younger, Native American co-workers. The respondent's decision to bring the nurses into the bargaining unit at Step 4 on the pay scale was not a reflection of the years of experience of the other two nurses, but was designed to move the nurses onto the pay scale at salaries commensurate with what they had been earning prior to joining the bargaining unit. There is nothing in the record to suggest that a Native American nurse with a substantial amount of experience would have been brought in at a higher pay step than the complainant.

In her petition the complainant argues that the respondent had previously hired a Native American nurse at a higher salary than the complainant's. However, the circumstances surrounding that individual's employment are simply not comparable to the complainant's. The nurse in question, who was no longer employed by the respondent at the time the complainant was hired and who was never part of the bargaining unit, worked a greater number of hours than the complainant did, and was responsible for providing nursing services to students at all three schools in the district rather than at a single school. These and other factors rendered her situation distinguishable from the complainant's and indicated that a higher salary may well have been warranted.

The complainant also attempts to compare herself to the respondent's three social workers, all of whom were male, Native American, and under age 40. However, assuming the complainant's contention that the social workers received credit for their years of experience is accurate, she has nonetheless failed to present any evidence to suggest that this difference in their treatment can be explained by race, sex, or age. The respondent presented legitimate non-discriminatory reasons for setting the nurses' salaries as it did, and the complainant did not demonstrate that any of those reasons were false or a pretext for discrimination.

Overall, the record in this case reveals nothing to suggest that the respondent treated the complainant less favorably than other employees with respect to compensation, nor any reason to believe that it would have afforded her more favorable treatment had she been a male, Native American, or not in the protected age group. While the complainant's dissatisfaction with the respondent's failure to credit her for her years of nursing experience is certainly understandable, the respondent's decision to treat all nurses equally with regard to salary was a management decision which, absent any evidence of discriminatory motives, the respondent was entitled to make. The dismissal of the complaint is, therefore, affirmed.

cc: Attorney Robert W. Burns

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uploaded 2003/12/02