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



ERD Case No. 9200216, EEOC Case No. 26G920639

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:

1. The following paragraphs are inserted after paragraph 17 of the administrative law judge's FINDINGS OF FACT:

"18. The complainant had about ten years department experience.

"19. Lt. Wilkinson, the shift captain on the complainant's shift, gave his approval of the complainant's application for the position. He did so because he believed the complainant had some skills that might be important to the position and that she would make a capable FTO.

"20. Although the respondent's guidelines state that candidates for the FTO position will be interviewed, and the chief of police testified that when more than one officer expresses an interest in the position it is the respondent's practice to grant interviews, no interviews were held for the FTO position.

"21. On or about July of 1991 the respondent offered the FTO position to David Gomoll. Gomoll, a male, began his employment with the respondent on July 3, 1989, but his service was interrupted when he went to serve in the Desert Storm operation for about eight months thereafter. Several years prior to beginning his job as a police offer, Gomoll had also worked for the respondent for two years as a community service officer, a nonsworn position within the police department. No evidence was presented to establish whether or on what basis Gomoll was considered to have two years `department experience.'

"22. Another male police officer, Stephen Weyers, was also encouraged by Wilkinson to apply for the position, in spite of the fact that he did not yet have the requisite two years experience with the department.

"23. The complainant was never given any explanation as to why she was not selected for the position."

2. Paragraphs 18 and 19 of the administrative law judge's FINDINGS OF FACT are deleted and the remaining FINDINGS OF FACT are renumbered accordingly.

3. The following paragraph is inserted after paragraph 5 in the administrative law judge's ORDER:

"The Respondent shall pay to the Complainant the reasonable attorney fees and costs incurred in connection with replying to the respondent's petition for commission review."

4. Paragraph 6 of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708."


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

Dated and mailed: April 9, 1998
foustpa.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


Promotion to Field Training Officer (FTO)

In order to state a prima facie case of discrimination by failure to promote the complainant must show that she belongs to a protected group, that she was qualified for and applied for a promotion, that she was denied the promotion, and that other employes of similar qualifications, who were not in the protected group, were promoted instead. Freeman v. Lewis, 675 F.2d 398, 400 (D.C. Cir. 1982). The complainant, however, need not prove at the initial stage that she was the most qualified person for the promotion in order to make out a prima facie case. See Bolden v. Wisconsin Telephone Co. (LIRC, August 4, 1981).

The complainant, a female, applied for a position for which she satisfied the objective qualifications set forth in the respondent's Field Training Officer Guide, in that she had two years experience in the department, but was rejected in favor of a male applicant who did not clearly meet that objective minimum requirement. In addition, the complainant established that the respondent disregarded its own policy with respect to conducting interviews for the FTO position in this case. Given these factors, the commission is satisfied that the complainant submitted sufficient prima facie evidence of discrimination to shift the burden of proof to the respondent.

In its brief to the commission the respondent contends that the complainant did not meet her burden of establishing a prima facie case because she did not show that she met the minimum qualifications to serve as an FTO, which require her to be "above average for those standards which are utilized to evaluate the probationary officer." The commission does not find this argument compelling, for a number of reasons. First, given that Lt. Wilkinson approved the complainant's application for the FTO position and specifically testified that she had some skills that may be important to the position and would be a capable FTO if she applied herself, the commission believes that the respondent basically conceded the complainant was qualified for the position and cannot now reasonably be heard to argue that she was not.

Second, the respondent's argument that the complainant did not meet the minimum qualifications to serve as an FTO are based upon a contention that the complainant does not get along well with other officers and with the public, a matter which is highly subjective, and which therefore should not be used to defeat the complainant's prima facie case. The burden of establishing a prima facie case of disparate treatment is not intended to be onerous. The policies served by the prima facie case are to eliminate the most common nondiscriminatory reasons for the adverse employment decision and to provide an opportunity for the complainant to prove discriminatory intent indirectly. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 115-116 (1981); Jayasinghe v. Bethlehem Steel Corp., 760 F.2d 132, 37 FEP Cases 817, 818 (7th Cir. 1985). Requiring proof of subjective qualifications at the prima facie phase of the analysis does not serve either of these policies. Rather, forcing the complainant at the outset to prove subjective qualifications subverts the indirect method of proof by requiring proof of the subjective standards and motives of the employer, and has the effect of collapsing the three-step McDonnell Douglas analysis (1)   into a single step at which all issues would be resolved. See Jayasinghe, at 818-819; Fowle v. C&C Cola, 868 F.2d 59, 49 FEP Cases 253, 255 (3rd Cir. 1989). Therefore, the argument that the complainant lacks certain subjective qualifications is a matter that should be considered as part of the second or third prongs of the McDonnell Douglas analysis.

Having concluded that the complainant has established a prima facie case of discrimination, the question is whether the respondent has met its burden of articulating a legitimate, non-discriminatory reason for its decision not to offer the complainant the FTO position. Although the respondent's burden is not an exacting one, the respondent has nonetheless failed to meet it in this case. The respondent was unable to identify the individual or individuals responsible for the adverse employment decision and, consequently, failed to present any explanation for its reasons for not selecting the complainant, for disregarding the interview process, or for selecting a candidate who arguably did not satisfy the minimum objective qualifications for the job.

The only witness who attempted to provide any explanation as to why the complainant was not selected for the position was Lt. Wilkinson, who indicated that he did not believe the complainant was the best person for the job and that the individual selected had experience outside the department that he considered important. However, while this might explain why Wilkinson would not have selected the complainant as an FTO had he been given the choice, Wilkinson repeatedly insisted he was not the decision-maker. Moreover, it is clear from Wilkinson's testimony that the above-cited reasons for the hiring decision were based upon his own impressions, and not on any statements made to him by the person or persons in charge of the selection process. Consequently, Wilkinson's opinions as to why the complainant was not selected amount to mere speculation and do not satisfy the respondent's burden of producing a nondiscriminatory explanation for its actions.

In its brief to the commission the respondent suggests that the same nondiscriminatory reason which led it to pass over the complainant for the Police Officer-Specialist position -- namely, the complainant's asserted inability to get along well with others -- also disqualified her from serving as an FTO. However, the respondent did not introduce any evidence in support of this at the hearing, and it cannot meet its burden of articulating a legitimate nondiscriminatory reason through the argument of counsel. Burdine, supra, 25 FEP Cases 113, 116. The respondent was on notice of the issues raised in the complaint and if, in fact, its decision not to make the complainant an FTO was because of poor communication and interpersonal skills, it should have been prepared to present evidence on this point at the hearing. It would not be equitable to permit the respondent to meet its burden of production by articulating reasons in its brief to the commission which were not presented at the hearing and which the complainant had no opportunity to rebut at that time.

In its petition the respondent also argues that David Gomoll did meet the requirement of two years experience in the department based on his prior work as a nonsworn community service officer, and further, that it does not require two years of uninterrupted service, so that Gomoll's absence to serve in Operation Desert Storm did not count against him. Again, however, the respondent failed to identify the decision-maker in the FTO selection process, and it is not possible to ascertain if and on what basis Gomoll was deemed to satisfy the requirement that he have two years department experience. More importantly, even if Gomoll was qualified for the position, the respondent has nonetheless failed to present any competent evidence regarding its reasons for selecting him instead of the complainant. The mere fact that the successful male candidate was minimally qualified is insufficient to rebut the presumption of discrimination raised by the complainant's prima facie evidence.

Having concluded that the complainant established a prima facie case of discrimination and that the respondent did not meet its burden of production, the final question to decide is whether these factors warrant a decision in favor of the complainant. The commission believes they do. Although the respondent argues vehemently that there is no "presumption of guilt" in discrimination cases and suggests that there is something `Kafkaesque' about the decision in favor of the complainant, these arguments indicate a misunderstanding of the burden- shifting analysis involved in the resolution of discrimination cases. In the very decision which the respondent urges the commission to consider in support of its argument for reversal, the United States Supreme Court stated that, where no question of fact exists as to whether the complainant has established a prima facie case, a respondent's failure to present any legitimate nondiscriminatory reason for its actions warrants a decision in favor of the complainant as a matter of law. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 62 FEP Cases 96, 100 (1993). Similarly, the commission has held that a finding in the complainant's favor will result when the prima facie case of discrimination, raising the presumption that discrimination occurred, is not rebutted by the articulation of a nondiscriminatory reason. Ray v. Ramada Inn-Sands West (LIRC, March 5, 1991); Jorgensen v. Ferrellgas, Inc. (LIRC, January 10, 1992). That is precisely what occurred in this case.

The complainant established a prima facie case of discrimination based upon her gender, and the respondent failed to place into evidence any legitimate nondiscriminatory explanation for its failure to offer her the position of FTO. Absent such an explanation, the commission agrees with the administrative law judge that the strongest inference to be drawn is that the complainant's sex was indeed a motivating factor in the respondent's decision not to offer her the position in question. (2)

Terms and Conditions

In its petition for commission review the respondent also challenges the administrative law judge's finding that the complainant was discriminated against when she received supervisor's log entries for being in the records room without obtaining permission.

First, the respondent suggests that there can be no finding of discrimination on this issue because the supervisor's logs were not disciplinary and, therefore, did not constitute an adverse employment action. However, while not considered a formal means of discipline, a supervisor's log does constitute a written notation of an officer's deficiencies which is placed in the officer's file, and may be grieved through the union. Consequently, the commission believes that the supervisor's logs are properly characterized as disciplinary in nature and can be considered an adverse employment action.

Next, the respondent argues that the complainant was not treated differently than her male co-workers. Although the respondent apparently does not dispute the fact that male employes were routinely found in the records room without being disciplined or written up as a result, it suggests that the complainant did not receive the logs for being in the records room without permission, but for sitting and doing police reports there. To this end, the respondent contends that there was no evidence that other officers "routinely parked themselves in Records to write their reports as Ms. Foust did." The commission does not find this argument persuasive. While it is true that the supervisor's logs did make reference to what the complainant was doing while in the records room, it is apparent that they were designed to reprimand her for simply being in the records room without permission. In one of the supervisor's logs, Sgt. Burton indicated that the complainant was sitting in the records room doing reports and was told she "[did not] belong up there." In the other, Lt. Wilkinson indicated that, although he had informed all officers that they should not be in the records room without his permission, he nonetheless found the complainant in the records room checking the files. The complainant testified that, when Wilkinson saw her in the records room, he yelled at her both about her radio being off and about being in the office. Under the circumstances, it seems clear that the complainant's mere presence in the records room without permission was part of what triggered the supervisors' actions, and the commission is satisfied that the complainant has submitted sufficient evidence to establish a prima facie case of disparate treatment with respect to this question.

The next question is whether the respondent presented a legitimate nondiscriminatory reason for its actions in writing up the complainant when male employes were frequently in the records room without permission but without being written up and, if so, whether the complainant has demonstrated that such reason was a pretext for discrimination. While the respondent's attorney offers the explanation that the reason the complainant was written up while her male co-workers were not is that she was the only one "parking" herself in the records room to write her reports, this explanation was not submitted into evidence at the hearing and, as previously discussed, the respondent cannot meet its burden solely through the argument of counsel. Further, as stated above, the record does not support a finding that the complainant was written up solely for her actions in doing work in the records room.

The only evidence in the record that might arguably satisfy the respondent's burden with respect to this issue is the testimony of Lt. Wilkinson, who stated without further elaboration or explanation, that the reason he wrote the complainant up for something other workers frequently did was because he had talked to her on several occasions. (3)    Presuming that this explanation would be sufficient to meet the respondent's burden of production as to the supervisor's log issued by Wilkinson, the commission nonetheless believes that the complainant has succeeded in showing it to be pretextual. The complainant testified that she could not recall any previous conversations about her presence in the records room, and her testimony on this point is supported by the fact that in the supervisor's log Wilkinson specifically mentioned having informed all officers on the shift to stay out of the records room without permission, but made no reference to any individual discussions with the complainant. Had Wilkinson discussed the matter with the complainant on prior occasions, it seems likely that his notation would have included some reference to these conversations. Further, even if the respondent had demonstrated that Wilkinson talked to the complainant on prior occasions, this still begs the question of why no male employes were called on the carpet for being in the records room, in spite of the fact that male employes frequently violated the same rule.

For these reasons, the commission affirms the administrative law judge's finding that the complainant was discriminated against with respect to the supervisor's logs.

Attorney Fees

The administrative law judge reduced the complainant's requested attorney fees by 60% in order to account for the fact that roughly 60% of the total litigation represented work relating to the complainant's unsuccessful claim with respect to the Police Officer-Specialist position. The complainant has petitioned for commission review of this aspect of the decision, contending that she should have been awarded the full amount of attorney fees requested.

It is a well-established principal of law that, under the Fair Employment Act, a prevailing complainant will be eligible for reasonable attorney fees. Watkins v. LIRC, 117 Wis. 2d 753, 345 N.W.2d 482 (1984). However, there are various considerations that may lead to an upward or downward adjustment in the fees. For example, where a complainant's success has been only limited, it is appropriate to reduce the allowed fee. Cangelosi v. Robert E. Larson & Assoc. (LIRC, November 9, 1990), citing Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169, 1173 (1983).

In support of her argument that her fees should not have been reduced, the complainant maintains that both of her promotion claims involved a common core of facts. She states that the selection criteria for the FTO position and the Specialist position are similar, and that for both positions she had to show she was qualified. The complainant maintains that a substantial amount of the testimony at the hearing involved the oral interview process for the Specialist position, but that the same proof was necessary for her to prevail on her claim regarding the FTO position. The commission does not find this argument compelling. This is not a case in which the complainant challenged a single adverse employment action under two separate legal theories and prevailed only under one of those theories--in which case a full award of attorney fees might be warranted--but is a case in which the complainant challenged two separate promotions involving two separate positions and prevailed on only one. Moreover, the complainant's assertion that the proof presented with respect to these separate promotions was the same is simply not accurate. While the record contains exhaustive testimony regarding the complainant's qualifications for the Specialist position, her success on her FTO claim was not based upon an analysis of that evidence. Rather, the complainant prevailed on her FTO claim because she showed that she satisfied the objective qualifications set forth for the position and had the approval of the shift commander, that she was not afforded an interview as provided for in the respondent's policy, and that a male was selected instead who did not clearly satisfy the respondent's objective criteria. Although it could be argued that some of the evidence presented with regard to the Specialist position addressed the subjective criteria for the FTO position, this evidence was not necessary to the litigation of her successful claim.

Further, even if the commission were to conclude that both claims did involve similar facts, this alone would not mandate that the complainant receive a fully compensatory fee award. Even where there is a common core of facts and much of counsel's time is devoted generally to the litigation as a whole, "the [decision- maker] should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley, supra, at 31 FEP Cases 1169, 1173-1174. "If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith." Id.

This leads to the complainant's next argument--that she is entitled to fully compensatory fees because she proceeded in good faith. The complainant maintains that under "the Radford standard," where the winning party has achieved substantial success, a fully compensatory fee should be awarded if the unsuccessful claims were brought and pursued in good faith. Radford v. J.J.B. Enterprises, Ltd., 163 Wis. 2d 534, 550, 472 N.W.2d 790 (Wis. Ct. App. 1991). This argument is also unavailing. While the commission does not doubt that the complainant proceeded in good faith, she has not achieved "substantial success" such as would warrant fully compensatory attorney fees. While the complainant avers that the gravamen of her claim is that she was denied promotions for discriminatory reasons, the FTO position was clearly the less substantial promotional opportunity. Indeed, the complainant acknowledged in her brief that the compensation paid to an FTO is not substantial and that the compensatory losses for this discrimination are not significant. Because the complainant did not prevail on what was clearly the most significant aspect of her claim--the promotion to Police Officer-Specialist--the complainant has failed to achieve "significant success" in this case. See Roden v. Federal Express (LIRC, June 30, 1993).

The commission has considered the other arguments raised by the complainant in support of her demand for full attorney fees, but finds these similarly unpersuasive. Because the commission believes that the administrative law judge was correct in reducing her fees to account for her limited success, and because it is satisfied that a 60% reduction in the requested fees reasonably correlates to the time spent litigating the issues with regard to the Police Officer-Specialist position, the commission upholds the fee award arrived at by the administrative law judge.


PAMELA I. ANDERSON, Concurring in Part and Dissenting in Part:

I write separately because I find that the employer did not rebut the complainant's prima facie case on the Field Training Officer position. The employer was unable to say who made the decision to hire David Gomoll, so it is unable to explain why the decision- maker found him more qualified. Given this problem, it does not matter whether it was sufficient for Gomoll to have met the experience requirement outside the Oshkosh Police Department.

I did not find that the write-ups on the supervisor's log were discrimination in the conditions of employment. There was no discipline as a result of the write-ups although the complainant had an opportunity to grieve them. Some of them were merely recording of a conversation her supervisor had with her which mentioned an area where she could improve. I found it more than reasonable to issue a memo to the log when she had her radio turned off and the dispatcher could not reach her. The record does not show that the complainant grieved this write-up although she knew how to file a grievance. The employer could have filed an oral or written reprimand which would have been discipline and would have more likely supported her position that they were discriminating against her. For these reasons, I dissent in part but concur in the finding of discrimination. I agree with the majority on attorney fees.

Pamela I. Anderson, Commissioner

Frederick J. Mohr
James R. Korom

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(1)( Back ) McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973).

(2)( Back ) While the complaint also alleged a retaliatory motive, the administrative law judge did not find in favor of the complainant on that issue and the complainant has not petitioned for commission review of that aspect of the decision. Although the filing of a petition for review by any party vests the commission with jurisdiction to review the entire decision, as a general practice the commission will not exercise that jurisdiction to address issues that are neither expressly nor implicitly raised in a petition for review. Dude v Thompson (LIRC, November 16, 1990). Consequently, the commission has not considered whether the denial of the FTO position was in retaliation for the complainant's statutorily protected activity.

(3)( Back ) Sgt. Burton did not appear at the hearing, and the record contains no explanation for his decision to make the complainant and Perry the first to receive a supervisor's log for a commonplace offense.