MARYELLN E. EBARP, Complainant

CITY OF CEDARBURG

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 conclusions in that decision as its own, except that it makes the following modifications:

Conclusion (4) in the ALJ's decision is deleted and the following conclusion is substituted therefor:

"While Ms. Ebarp's complaint contains an allegation that the respondent failed to promote her within 300 days prior to December 3, 2002, her admission that she did not apply for this promotion because she intended to retire establishes that there is no basis on which she can prevail on this allegation of age discrimination."

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

Dated and mailed November 26, 2004
ebarpma . rmd : 125 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Maryelln Ebarp filed a complaint with the ERD on December 3, 2002, alleging that the respondent had discriminated against her in her terms and conditions of employment, compensation and in promotion because of her age, and that the respondent had retaliated against her because she opposed a discriminatory practice under the Fair Employment Act.

Ms. Ebarp asserts that in the summer of 1997 she applied for a position with the respondent advertised as a Children's Librarian and was hired (11/11/97) as such but then told by the library board that the director had no right to hire her at $10.75 per hour. Ms. Ebarp asserts that she accepted a wage of $9.75 per hour. She asserts that in January 1998, when her rate of pay was increased to $10.75, she objected to that amount because "degreed librarians were starting at $30,000."

Ms. Ebarp asserts that the director, Jo Reitman, promised her that she would get the proper pay shortly. Ms. Ebarp asserts she was asked to provide a job description for the position, and that the job description for Children's Librarian she provided was used and the one under which she operated. Ms. Ebarp states that her date of birth was 9/7/27. (Ms. Ebarp thus would have been 70 years old when hired on November 11, 1997.)

Ms. Ebarp asserts that Ms. Reitman was asked by the respondent to leave within a few weeks of her (Ms. Ebarp's) hiring.

Ms. Ebarp asserts that the new director, Mary Marquardt, did not tell her that her job description and title had been changed in January 1998, until her job evaluation in early January 1999. Ms. Ebarp asserts that she was angry to find out that she was not considered a Children's Librarian and took her complaint to the union. She asserts that a meeting was arranged to see the new director and the president of the library board. She asserts that the city attorney was also there. She asserts that she discovered the purpose of the meeting was to determine if she was going to sue. Ms. Ebarp admits that she did not sue.

Ms. Ebarp apparently asserts that Ms. Marquardt, using a new job description, no longer asked her to serve on the Friends of the Library Committee, stopped asking her to review policy materials and insisted in her evaluations that she was merely adequate. Ms. Ebarp asserts that the director found many ways in her attitude and form of address to put her down, always when alone with her.

Ms. Ebarp asserts that she waited each year to receive the recognition she had been promised when hired, and that it did not happen.

Ms. Ebarp asserts that she said she would retire at the end of 2002, but the director assumed she meant in September when her birthday occurred. Ms. Ebarp asserts that she wanted to conclude (her employment) in December, using vacation and personal days to do so.

Ms. Ebarp asserts that a Children's Librarian was hired on November 11, 2002. She asserts that the new person is receiving $14.72 per hour, has a Master's degree, but only a practicum in children's work, although she does have previous library experience in different areas. Ms. Ebarp asserts that she has a Bachelor's and two Master's degrees, and that her previous experience included being the director of a private school's library for children for 2« years and many years of teaching.

Ms. Ebarp asserts that she thinks she was taken advantage of because of her age. She asserts that her annual wages this year (2002) will be $2,000 less than the new person's (a younger person) annual starting wage as the Children's Librarian. Ms. Ebarp sets forth the hourly wages she asserts she received since 1997 and states that she wants to be reimbursed for the wages she should have received, about $60,500.

Finally, Ms. Ebarp asserts the director told her that if she wanted the job she needed to apply, but her (Ebarp's) contention is that she was doing this job all along and did not need to apply.

In section 6 of her complaint, which asks about dates of alleged discrimination, Ms. Ebarp stated that the first date of alleged discrimination happened on "1/1/98". She asserts that on that date "I was not informed of new job title and description." Ms. Ebarp stated that the "date" the most recent action happened was "1/1/02-11/11/02." She asserted that on that date "I was not promoted to children's librarian."

In February 7, 2003 correspondence Ms. Ebarp sent to the ERD she asserted, "I was NOT promoted, and consequently NOT paid, as Ms. Reitman had verbally contracted I eventually would be." As to why she felt she had been retaliated against for opposing a discriminatory practice, Ms. Ebarp asserted, "The retaliation was in the Respondent's stance that I was a merely adequate employee, not a Children's Librarian." Ms. Ebarp asserted that for a short time Ms. Marquardt treated her as a colleague, and noted that Ms. Marquardt had business cards made with her name with her title as Children's Librarian. Ms. Ebarp asserts that Ms. Marquardt used to ask her about policy and had invited her to meetings of the volunteer groups, but sometime in 1998 Marquardt began to chronicle only the negative things she could find, that this is when the retaliatory behavior began. Ms. Ebarp attached her November 1999 and December 8, 2000 evaluations (Exhibit I) to her February 7 correspondence. Ms. Ebarp's position is listed as "Assistant Librarian-Children's" in those evaluations.

Ms. Ebarp's November 1999 evaluation has a date of November 17, and was apparently signed by Ms. Ebarp on November 17. Ms. Ebarp's December 2000 evaluation has a date of December 8, but Ms. Ebarp did apparently not sign it until January 3, 2001. It is not known whether or not Ms. Ebarp was evaluated on her performance for the year 2001, since a performance evaluation was not submitted for that year. It is clear, however, that Ms. Ebarp did not get a performance review for the year 2002. In her February 2003 correspondence, Ms. Ebarp asserts, "It is also essential for you to know that during the last two weeks before I retired I asked Ms. Marquardt several times for an evaluation of my 2002 year. The last time I inquired she reacted in the most unprofessional manner; she became livid when I said I was due that respect for the year's work. She replied that she did not do that for people retiring..I said it was the right, respectful thing to do. Furious, she replied that she would not do so. Such a negative response discounts my employment for the entire year."

In her February 7, 2003 correspondence, Ms. Ebarp disagreed that promotion and raising her pay was a clear-cut occurrence. Ms. Ebarp agreed that her original wages were based on a 1997 union contract, but asserted that she was not told she would be a member of a union or that the wages were determined by a contract from 1997. Ms. Ebarp asserts that she is struck by the fact that she was made "Assistant/Children's without my knowledge, after the fact, without consultation with me. (Exhibit reference omitted) I did not learn of it until my 1998 evaluation. Then I later was made Associate/Librarian, again without my applying for it or my knowledge." Ms. Ebarp asks, "If I was promoted to one position why could I not have been promoted to Children's Librarian?"

Continuing with her argument that her complaint was timely, Ms. Ebarp asserts, "I was promised and I expected promotions and more importantly I earned those promotions. In 1998 Ms. Marquardt even said she was working for the Children's Librarian position and comparable remuneration. This was an ongoing situation."

Ms. Ebarp asserts, "I disagree that the Board had no responsibility to me to promote me to Children's Librarian as soon as possible. The fact that the 1997 contract was presented by Ms. Reitman was the Board's responsibility. Again I state that I, in good faith, decided to believe Ms. Reitman and not pursue any legal action. I expect that people will keep their promises and that verbal contracts are binding. The Board and City must honor their representative's statements in the interview, both written and verbal if they expect to have a just and fair reputation in their community."

Ms. Ebarp also asserted, "I disagree with the implication that I did something wrong by not applying for the 2002 children's position. I did not apply for (sic) 2002 children's position because I intended to retire. Ms. Marquardt overheard a conversation I had with other staff in Spring (sic) 2002 when I mentioned that I was planning to retire that year. She did not corroborate with me when I intended to do so. Assuming retirement would be on my birthday, September 7, she began to inform the Board and write an ad in June for that date. I told her I would stay through December 2002. Apparently that upset things. She hoped to have hired a new person by September. She said she would not terminate my employment, but that I could stay on to train the new person and do odd jobs..."

In an initial determination issued on June 5, 2003, an equal rights officer for the ERD decided there was no probable cause to believe the respondent had discriminated against Maryelln Ebarp in her terms or conditions of employment, compensation or in promotion because of her age, or that the respondent had retaliated against her because she opposed a discriminatory practice under the Act. The equal rights officer's determination includes a finding acknowledging the respondent's assertion that "some of the Complainant's issues fall outside of 300 days of the date that preceded the date that the Complainant filed her complaint on December 3, 2202. The ERO determined that "the Complainant's issues are timely under the continuing violation theory. The Complainant has objected to her job title and hourly wage since the Respondent reduced her hourly wage and changed her job title, to the time that she made the decision to retire from employment."

Ms. Ebarp filed a timely appeal from the no probable cause determination, and a probable cause hearing was scheduled on her complaint of alleged discrimination for September 8, 2003. After a discussion of Ms. Ebarp's allegations at the hearing and prior to the taking of any testimony, the ALJ reached the following conclusions:

(1) The Division lacks jurisdiction over Ms. Ebarp's main allegation that she had been "promised by the director that I would shortly get the proper pay for my position." Ms. Ebarp claims that the CPL did not follow through with that promise. This is a contract action over which the Division has no authority.

(2) All allegations about actions taken or not taken by the CPL prior to 300 days before December 3, 2002 are untimely.

(3) Ms. Ebarp failed to allege when, where or to whom she claims to have engaged in an activity protected by the Act, so her allegation that the CPL violated the Act by discriminating against her because she opposed a discriminatory act must be dismissed.

(4) Ms. Ebarp does not allege the CPL to have taken, or failed to take, any specific action regarding her employment within 300 days prior to December 3, 2002.

Based on the above conclusions, the ALJ dismissed Ms. Ebarp's complaint.
  

Retaliation for opposing a discriminatory practice

In order to violate the prohibition against retaliation, an employer must have had a belief that the complainant was raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in the conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant proves that the employer was aware that she was engaged in protected activities. Cangelosi v. Robert E. Larson & Associates (LIRC, 11/09/90); Keller v. City of Brodhead (LIRC, 04/29/87); Matthews v. Bassett Bedding (LIRC, 10/27/93). Ms. Ebarp has failed to allege any facts that would show she had made it known to respondent that she was opposing any alleged discriminatory activity by the respondent. Since Ms. Ebarp failed to allege any facts to show that the respondent was aware she was engaged in protected activity, her claim of retaliation fails.
  

Timeliness of complaint allegations

The basis for the ALJ's dismissal of Ms. Ebarp's complaint cited under (4) is incorrect. Ms. Ebarp does allege that the respondent failed to take specific action regarding her employment within 300 days prior to December 3, 2002. Ms. Ebarp alleges that on "1/1/02 - 11/11/02" that she was not promoted to the position of Children's Librarian. First of all, however, contrary to Ms. Ebarp's apparent assertion, a failure to promote is a discrete act of alleged discrimination. National R.R. Passenger Corp. (AMTRAK) v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061 (2002) ("Discrete acts...[are] termination, failure to promote, denial of transfer, or refusal to hire...") Ms. Ebarp's only allegation of a failure to promote that occurred within 300 days of the date she filed her complaint occurred on 11/11/02, when someone other than she was hired for the position of Children's Librarian. The respondent's hiring of someone on November 11, 2002, to fill the position of Children's Librarian occurred only 22 days prior to the discrimination complaint Ms. Ebarp filed on December 3, 2002. However, Ms. Ebarp herself admits Ms. Marquardt told her that if she wanted the Children's Librarian position she needed to apply for it but that she never applied for the position because she intended to retire. Ms. Ebarp's own admissions establish that there is no basis on which she can prevail on a claim of alleged age discrimination with respect to a failure to promote. An Administrative Law Judge may dismiss a complaint prior to hearing if it appears that, even if what the complainant claims is true, a decision in favor of the respondent is required by law. Schaefer v. New Berlin Realty (LIRC, 06/10/93); Administrative Law Judges have the authority to dismiss complaints without a hearing where that action would be legally justified even if the facts were as asserted by the complainant. Castiglione v. Giesen & Berman (LIRC, 06/25/97). Therefore, Ms. Ebarp's claim of promotion discrimination must be dismissed.

Ms. Ebarp does not claim that she was unlawfully terminated after Ms. Marquardt learned that she planned to retire. In fact, she admits that Ms. Marquardt said she would not terminate her employment and allowed her to continue working until the date on which she specified she would retire. 
  

Compensation

Ms. Ebarp asserts that Ms. Reitman had promised her in 1997 that she would get "proper pay." However, as noted by the ALJ, the ERD lacks jurisdiction over this issue, as it is a contract issue. Based upon Ms. Ebarp's assertions, however, she apparently contends that her failure to receive "proper pay" constituted a continuing violation. However, if this is her assertion it fails because her failure to receive what she considers to be proper pay relates entirely to the erroneous wage rate and job title she was initially offered and/or promised by Ms. Reitman, who did not have the authority to make such offer. Moreover, Ms. Ebarp knew by the end of 1997 that Ms. Reitman did not have the authority to hire her at $10.75 per hour. Ms. Ebarp knew at the very latest by the time of her November 1999 performance evaluation that her position was not that of Children's Librarian, but that her position was that of Assistant Librarian-Children's. If, on the other hand, Ms. Ebarp is merely alleging that she was discriminated against on the basis of age because her 2002 annual wages would be $2,000.00 less than the younger person's starting annual wages as Children's Librarian, this argument likewise fails because Ms. Ebarp was not similarly employed as a Children's Librarian.
  

Terms and conditions of employment

Finally, Ms. Ebarp's assertions regarding her terms and conditions of employment center on her dissatisfaction with her performance evaluations and "the Respondent's stance that I was a merely adequate employee, not a Children's Librarian." In addition, Ms. Ebarp has asserted that Ms. Marquardt used to ask her about policy and had invited her to meetings of the volunteer groups, but sometime in 1998 Ms. Marquardt began to chronicle only the negative things she could find, that this is when the retaliatory behavior began. Ms. Ebarp's own assertions indicate the untimeliness of these allegations. Ms. Ebarp admits that she had not received an evaluation for her performance at any time in the year 2002. She also admits knowing at least since November 1999 that the respondent classified her as an Assistant Librarian-Children's, and not as a Children's Librarian. Ms. Ebarp is in essence asserting that she was transferred or demoted to a lower classification, which represents a discrete act of alleged discrimination.

The only other assertion Ms. Ebarp could be claiming as a basis of age discrimination in her terms and conditions of employment is her assertion that Marquardt "found many ways in her attitude and form of address to put me down, always when alone with her." However, Ms. Ebarp makes no direct or indirect reference to her age in this assertion. Furthermore, the following comment in Ms. Ebarp's letter appeal of the initial determination is particularly instructive with respect to this issue: "The issue of age discrimination came up occasionally, usually in a joking manner between me and Director Mary Marquardt, never formally declared. I did not tell my age to patrons or staff. I did not support staff birthday observations and asked that my birthday not be celebrated in their traditional style." (Italics emphasis added.)

cc: Attorney Kaye Vance

Appealed to Circuit Court.

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