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

SHARON E KELLEY, Complainant


ERD Case No. CR200302818, EEOC Case No. 26HA200014

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:

Because it is not necessary for the decision of this matter, and draws a conclusion not supported by the evidence of record, footnote 5 on page 12 is deleted.

The ALJ's Memorandum Opinion is deleted, and the following substituted, in order to more closely reflect the commission's decision rationale:

Briefly, the complainant, a white female, who had previously been an unsuccessful candidate for other management positions in the Department of Revenue (DOR), including a counterpart section chief position, (1)  applied for, was certified for, and was interviewed for the position at issue here (2) in November of 2001. Frank Humphrey, the Director of the Bureau of Local Financial Assistance, who had effective hiring authority, ranked complainant second after the interviews, and offered the position to his top-ranked candidate, Anthony Timmons, a black male, who accepted the offer. At the time, the complainant was working in a Senior Accountant position for DOR, and Timmons in a Capital Finance Officer position in the Department of Administration (DOA).

In reviewing a failure to hire case such as this one, in which disparate treatment on the basis of sex and race is alleged, the commission has utilized the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). Within this framework, the complainant has the initial burden to establish a prima facie case of discrimination by showing that she applied for an available position for which she was qualified, but she was rejected under circumstances which give rise to an inference of unlawful sex discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981). If the complainant succeeds in establishing a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the complainants' rejection. Should the employer articulate such a reason, the complainant must then prove that the reason offered by the employer was not the true reason but was a pretext for discrimination. Burdine, supra. See, also, Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

It is undisputed that the complainant was qualified for the Taxation District Section Chief position. By showing that she applied for this position, but that it was offered instead to a black male, the complainant has established a prima facie case of race and sex discrimination.

The reason offered by the respondent for its decision, i.e., that, based on the selection criteria, the effective hiring authority considered Timmons to be a better qualified candidate than the complainant, is legitimate and non-discriminatory on its face.

The burden then shifts to the complainant to demonstrate pretext.

Complainant argues in this regard that, since 10% of the position's time is directly related to carrying out supervisory responsibilities, and 70% indirectly related, the fact that she had prior supervisory experience and Timmons did not demonstrates pretext. However, the complainant's supervisory experience was of relatively short duration (seven months for the Wisconsin Department of Health and Social Services, and two years as controller for Four Lakes Label), and remote in time from the recruitment/selection process at issue here (1992 for the state position and 1993-94 for the controller position). As a result, respondent's failure to consider complainant's prior supervisory experience a controlling factor would not establish pretext.

Complainant also argues that the fact that she had experience working for DOR, and Timmons did not, also establishes pretext. However, although the complainant explains that this experience generally acquainted her with DOR's policies, procedures, and systems, she fails to explain how this would differ to any significant extent from experience gained in another state agency. Moreover, she fails to explain how her experience preparing annual financial reports for the Wisconsin Lottery better qualifies her for the subject position than Timmons' experience directing the issuance and sale of Clean Water Fund revenue and general obligation bonds.

Complainant further contends that the fact that she is a Certified Public Accountant (CPA), and Timmons is not, better qualifies her for the subject position. It should first be noted that this certification is not specified as a requirement for either the subject position or the other Section Chief position in the Bureau of Local Financial Assistance (BLFA). In addition, although Tews, the other interviewer and the assistant to the administrator of the division of which the BLFA is a part, testified that being a CPA better qualified the complainant for the position, Humphrey, the subject position's supervisor, who is presumably more familiar with the position's duties and responsibilities, credibly testified that he considered Timmons' M.B.A. in finance at least as strong a qualification. It should also be noted in this regard that, in his testimony on this point, Tews appeared to be confused as to the actual position under consideration, i.e., he appeared to be under the impression that the subject position was the other section chief position in the bureau which Humphrey acknowledged may have benefited from an incumbent who was a CPA.

Complainant argues that Humphrey did not give her proper credit for certain of her responses to the interview questions, as demonstrated by Tews' scoring, and by the superiority of certain her responses to those of Timmons which Humphrey scored as high or higher than hers.

However, the complainant implies in the first part of this argument that Tews, a white person evaluating a white candidate, is necessarily more objective than Humphrey, a black person evaluating a black candidate. Although the complainant cites to the fact that Humphrey and Timmons were acquainted as the result of their membership in certain community and civil rights organizations, Tews and the complainant were also acquainted through their work together at DOR, and, in fact, Tews and his wife approached the complainant after the hiring decision was made to express their concern. As a result, in the absence of other supporting evidence, the fact that Tews awarded the complainant a higher score on certain interview questions than Humphrey does not establish pretext.

In addition, the record does not show that the complainant's responses to these questions merited a higher score from Humphrey. It is apparent that Humphrey, who authored the interview questions and the benchmarks, relied primarily upon these benchmarks in scoring the candidates' responses. He carefully checked off the benchmarks mentioned by the candidates in their responses, and noted in writing those aspects of their responses he considered sufficiently equivalent to the benchmarks to justify the award of additional credit. Tews, on the other hand, testified that he had not reviewed the interview questions and benchmarks before the interviews and was not familiar enough with them as a result to rely upon them in scoring the candidates' responses. He apparently relied instead upon his understanding of the duties and responsibilities of the position. This would certainly account for the difference in scoring, and does not establish pretext.

It should also be noted in this regard that Humphrey testified, in regard to two of the interview questions on which he awarded the complainant a lower score than Tews, that the complainant had stated, in addressing the hypothetical presented in the question, that she would apply the "problem analysis" approach, but, because she did not provide sufficient further detail from which he could ascertain exactly what steps she would follow, he did not consider her answer sufficiently complete. His notes, and, in fact, Tews' notes, tend to support Humphrey's testimony, and Tews, when asked whether the complainant detailed the steps she would follow in applying such a "problem analysis" approach, testified that he could not recall (pages 25 and 54 of Tews' deposition which, as complainant's exhibit #31, was received into the record, upon stipulation of the parties, in lieu of his hearing testimony). A general explanation of the steps in the "problem analysis" approach rather than an explanation of the specific steps to be followed in addressing the hypothetical fact situation set forth in the interview question could reasonably merit a lower interview score.

The complainant also argues, by implication at least, that Humphrey drafted the second interview question to provide Timmons a competitive advantage since it asks the candidate to explain the process he or she would follow in incorporating into the section a program transferred from another state agency, and Timmons was working at the time at DOA, the agency in the process of transferring a program to DOR. However, both the question and the benchmarks were phrased in general terms, and knowledge that a particular program was being transferred would not provide a candidate with any particular advantage.

The complainant contends that Humphrey's failure to follow certain affirmative action procedures in effecting the subject recruitment/selection demonstrates pretext. It should first be noted that these procedures (utilizing at least three individuals on the interview panel, including at least one woman on the panel when the position is underutilized for females, providing notice to Tews that the position was underutilized for females, and having the agency affirmative action officer review the interview questions and the hiring decision before implementation) are guidelines, not requirements. Although the failure to follow these guidelines may be probative of pretext, it does not establish pretext. See, Balele v. DOC et al., Case No. 97-0012-PC-ER (Wis. Personnel Comm'n. Oct. 9, 1998); Balele v. UW System, Case No. 91-0002-PC-ER (Wis. Personnel Comm'n March 9, 1994), aff'd Balele v. George et al., No. 94-CV-1177 (Wis. Cir. Ct. Dane County Feb. 17, 1995).

Here, Humphrey had just a few days, after receiving final approval to fill the position and before the effective date of the impending hiring freeze, to assemble a panel, schedule interviews, develop interview questions, make a hiring recommendation, and obtain hiring approval. Although he asked three women to serve as the third member of the interview panel, none of them was available on such short notice. He opted not to ask any of the women who had served on a recent panel because several of the same candidates were competing for the current position and it was his policy to utilize panel members, other than the supervisor of the position, who could offer a fresh perspective.

The record shows that, although Humphrey did not provide the agency affirmative action officer with an opportunity to review the interview questions prior to their use, this failure resulted from tight time constraints. More importantly, not only had two of these questions been recently reviewed as part of the recruitment/selection for the counterpart section chief position, but each of the interview questions developed by Humphrey was gender- and race-neutral.

Moreover, it is not clear what difference it would, or could, have made if Tews had been made aware that the position was underutilized for females. He scored the female finalist higher than the male finalist. Moreover, an employer is not required to offer the position to a woman when it is underutilized for females. To impose such a requirement would convert an affirmative action goal to a quota, which is prohibited.

Finally, the record shows that affirmative action approval was sought and obtained from the supervisor of the agency's diversity officer by Humphrey before he offered the position to Timmons.

The complainant did not establish pretext in regard to respondent's failure to follow certain recruitment/selection guidelines. The complainant does not satisfy her burden by showing that, from a personnel perspective, a better recruitment/selection process could have been utilized, but instead by showing that Humphrey, the effective hiring authority, was motivated by a discriminatory animus in crafting and implementing the process that was utilized. The complainant failed to make this showing. The interview questions and benchmarks were reasonably job-related and were gender-neutral and race-neutral, Humphrey's scoring of the complainant's and Timmons' interviews was reasonable given the benchmarks and the candidates' responses, and Humphrey's hiring recommendation was consistent with this scoring.

The complainant failed to sustain her burden to prove that she was discriminated against on the basis of sex or race when Timmons was selected for the subject position.


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

Dated and mailed September 23, 2005
kellesh . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Attorney Sally A. Stix
Attorney Mark Zimmer

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]


(1)( Back ) Chief of the General Purpose Government Section of the Bureau of Local Financial Assistance.

(2)( Back ) Chief of the Taxation District Section of the Bureau of Local Financial Assistance.


uploaded 2005/09/28