STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JAMES F ALLEMANG, Complainant

COUNTY OF MILWAUKEE, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200304692


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, except that it makes the following modifications:

In numbered paragraph 15. of the findings, the reference to "her" is modified to "his."

Numbered paragraphs 2. and 3. of the Conclusions of Law section are deleted.

DECISION

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

Dated and mailed August 26, 2005
allemja . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION


Conduct of Hearing

The hearing was conducted by the same administrative law judge (ALJ) who conducted the hearing in Roberge v. DATCP, ERD Case No. CR200303360 (LIRC May 31, 2005). In Roberge, the commission held that the procedural irregularities permitted by, and, in fact, precipitated by, the ALJ resulted in a denial of due process and merited a new hearing before a different ALJ.

In the instant case, although the ALJ engaged in some of the same conduct, i.e., requiring the parties to devote more than an hour of hearing time to an unnecessary and often confusing discussion of the underlying facts, the parties' theories of recovery, and the ALJ's at times mistaken understanding of the governing law, and conducting the initial direct examinations of the pro se complainant and his witnesses, the commission does not find a denial of procedural due process here.

The complainant, in his charge of discrimination, alleged both disparate treatment and disparate impact. In regard to the evidence offered by the complainant as to his disparate treatment by respondent, the ALJ's rulings and explanations were essentially correct, and the manner in which he conducted the hearing, although certainly not optimal, was sufficient to withstand a due process challenge.

However, the ALJ did not permit the complainant to prosecute his charge of disparate impact. The ALJ stated as follows in this regard (see page 29 of transcript):

If you're claiming that this decision by Milwaukee County had a disparate impact on a class of older people, that's a different kind of claim and one I can't hear here...Maybe a federal claim...I don't know.

The ALJ implied in his musings that he based this conclusion on his understanding that, since disparate impact claims are only cognizable in class actions, and, since class actions may not be brought under the WFEA, then, ipso facto, a disparate impact claim is not cognizable in a WFEA action.

The commission disagrees.

In Racine Unified School District v. LIRC, 164 Wis.2d 567, 476 N.W.2d 707 (Ct. App. 1991), a Wisconsin Fair Employment Act (WFEA) action, the court, citing Wisconsin Tele. Co. v. DILHR, 68 Wis.2d 345, 228 N.W.2d 649 (1975), stated that, "Wisconsin law recognizes two theories of employment discrimination - the disparate impact theory and the disparate treatment theory."  The commission has issued numerous decisions in WFEA actions applying and analyzing disparate impact claims. See, e.g., Moncrief v. Gardner Baking Co., ERD Case No. 9020321 (LIRC July 1, 1992) (disparate impact theory has been recognized as being applicable to the WFEA); Bedynek-Stumm v. County of Dane, ERD Case No. CR200100053 (LIRC Oct. 10, 2003); Kaczmarek v. City of Stevens Point, ERD Case No. 20020370 (LIRC Aug. 12, 2003); Abaunza v. Neenah Foundry, ERD Case No. 9000749 (LIRC March 30, 1993).

The question then becomes whether the ALJ's actions so prejudiced the complainant that a remand for further hearing before a different ALJ on the disparate impact claim should be ordered.

The commission's understanding of the complainant's disparate impact claim is that he is alleging that the County Executive's decision to order budget cuts, including cuts in personnel expenses, had a disparate impact on those older employees, like the complainant, who were approaching retirement eligibility; that the County Executive's decision to order that $1 million in these cuts be borne by the Parks Department had a disparate impact on older employees who were disproportionately represented in this department; that the Park Department's decision that the Parks Maintenance Worker I classification, which included the complainant's position, would bear the brunt of the personnel cuts had a disparate impact on older employees who were disproportionately represented in this classification; and that the respondent's decision that Parks Maintenance Worker 1's (PMW 1)would, for layoff purposes, be considered in a different classification than Parks Maintenance Workers-Seasonal (PMWS), had a disparate impact on those older workers, like the complainant, who, given his seniority, would not have been laid off if PMW 1 and PMWS had been considered a single classification.

Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has a disproportionately adverse impact on a protected group. Griggs v. Duke Power, 401 U.S. 424 (1971). Under the circumstances present here, in order to make out a prima facie case, the complainant would be required to establish, through expert evidence, that the practices at issue had a statistically significant, disproportionately adverse, impact on protected age workers. See, Racine Unified School District, 164 Wis. 2d at 594-96; Abaunza v. Neenah Foundry, ERD Case No. 9000749 (LIRC March 30, 1993); Moncrief v. Gardner Baking Co., supra..

It is apparent from the witnesses and exhibits noticed by the complainant that he was not prepared to present such evidence even if he had been permitted to do so by the ALJ. The raw data in the exhibits noticed by the complainant was incomplete, and these exhibits contained no expert statistical analysis of relevant data. In addition, none of the witnesses noticed by the complainant appears to be a statistical expert, and the complainant does not assert that any of them were prepared to offer such expert evidence.

Even if the complainant had been prepared to offer such expert evidence, the record supports a conclusion that the respondent's reasons for ordering budget cuts, requiring the Parks Department to absorb some of these cuts, selecting a relatively large number of positions in the PMW 1 classification for reduction, and regarding PMW 1 and PMWS as separate classifications, were reasonably justified given fiscal and program considerations, and, as such, not a pretext for discrimination. See, Dothard v. Rawlinson, 433 U.S. 321, 53 L.Ed.2d 786 (1977). Specifically, respondent, at the time the cuts were ordered, was facing a significant budget shortfall which was not only well-documented but well-publicized. It was reasonable to expect the Parks Department, as a large county department, to bear part of the burden of the budget cutbacks. The PMW 1 classification was the lowest level of permanent park worker, and the incumbents of these positions generally considered the least knowledgeable and most expendable. It was reasonable, given the county's fiscal situation, for permanent classifications to be targeted for layoff rather than seasonal classifications which the respondent could utilize on a less expensive and more flexible as-needed basis. Finally, as the respondent's human resources expert testified, the PMW 1 and PMWS positions were not considered a single classification for layoff purposes because, not only were they separate classifications within the county's civil service system, but they differed as to required hours of work each week, weeks worked each year, and benefits. The complainant does not detail here the nature of any evidence that he was prevented from offering in this regard that would have supported contrary conclusions.

As a result, the ALJ's actions in regard to the disparate impact claim did not prejudice the complainant, and no remand for further hearing is merited.

In his petition, the complainant references Sue Baldwin's failure to appear as a witness despite his attempt to subpoena her. First of all, the complainant admits that he did not effect service of this subpoena. Moreover, even if he had and Baldwin had failed to appear, neither ERD nor the commission have the authority to enforce a subpoena. Josellis v. Pace Industries, Inc., ERD Case No. CR199900264 (LIRC Aug. 31, 2004);WWester v. Charter Media/Communications, ERD Case No. CR200003872 (LIRC Oct. 15, 2004). The complainant could have initiated an enforcement action in circuit court but apparently failed to do so.

Complainant also references in his petition disruptive conduct on the part of respondent's counsel. Respondent's counsel stated her frustration both with the manner in which the ALJ conducted the hearing and with the fact that he repeatedly addressed her as "ma'am" even after she requested that he not do so. As the hearing progressed, she became more aggressive and confrontational, and her conduct added to the length of the hearing she had legitimately protested had run too long due to the ALJ's conduct. However, her actions did not prejudice to any extent the complainant's opportunity to present his case. 
 

Disparate Treatment

The complainant failed to prove his claim of disparate treatment. The record does not support a conclusion that the layoff, seniority, or other relevant provisions of the applicable collective bargaining agreement and governing county ordinances/rules were not followed in effecting the subject layoffs.

The complainant alleges that respondent selected the PMW 1 classification for layoff and selected the number of layoffs in this classification in a manner which would assure the complainant's layoff, in order to avoid his impending eligibility for retirement. First of all, as concluded above, the record supports a conclusion that the selection of the PMW 1 classification for layoff was reasonably justified. Moreover, there is simply no evidence in the record which would tend to support the complainant's theory as to the reason for the inclusion of his position in the PMW 1 layoff group. However, even if the complainant's position had been included in this group for the reasons he posits, this action would not be attributable to complainant's age but instead to the status of his eligibility for retirement. See, Smith v. City of Jackson, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005), citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 12 L.Ed.2d 338 (1993) for the proposition that an employee's allegation that he was discharged shortly before his pension would have vested did not state a cause of action under a disparate treatment theory because the motivating factor was not the employee's age but instead his years of service).

The complainant also argues in this regard that the selection of the PMW 1 classification rather than the PMWS classification for layoff, which resulted in the retention of younger seasonal PMW's after the complainant's layoff, constituted disparate treatment based on age. However, as concluded above, the selection of the PMW 1 classification rather than the PMWS classification for layoff was reasonably justified, and positions in these separate classifications were not required to be treated as a single layoff group. The simple fact that younger workers performing tasks similar to those the complainant had been performing prior to his layoff were retained does not, given the county's fiscal situation and the requirements of the applicable collective bargaining agreement and civil service system, without more, support a conclusion of age discrimination. Respondent chose to retain those in the PMWS classification because, in contrast to those in the PMW 1 classification who were required to be employed, and paid, on a full-time basis throughout the year, these seasonal employees were not guaranteed either a certain number of hours of work each week or a certain number of weeks of work each year and could, as a result, be called upon to work at only those times their services were actually needed. This was reasonably projected to result in significant savings to the county. The complainant's allegation that selecting the PMW 1 classification rather than the PMWS classification for layoff violated certain bargaining agreement and civil service requirements is not apparent from the evidence of record and, even if true, does not tend to establish age discrimination but instead a contract or rule violation.

cc: Attorney Mary Ann Grimes



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