BARBARA GAULKE, Complainant
SCHOOL DISTRICT OF STRATFORD, 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 adopts the findings and conclusions in that decision as its own, except that it makes the following modifications:
1. In the first line of paragraph 3 of the FINDINGS OF FACT, the year "1999" is deleted and the year "1998" is substituted therefor.
2. In the first line of paragraph 9 of the FINDINGS OF FACT, the phrase "some $7,000.00" is deleted and the amount "$6,954.00" is substituted therefor. Also, the last sentence in this paragraph is deleted.
3. In paragraph 11 of the FINDINGS OF FACT, the last two sentences are deleted and the following is substituted therfor:
"Gaulke wanted to meet with the board but Tuttle told her she couldn't. Gaulke went to the next scheduled board meeting in June 1997. Prior to the meeting Tuttle called her out into the hall and told her 'the board does not want to talk to you so save yourself some embarrassment.' Gaulke therefore gave each of the board members and Tuttle a copy of Tuttle's evaluation comments and her written rebuttal to them but received absolutely no response from the board or Tuttle."
4. In the second line of paragraph 4 of the CONCLUSIONS OF LAW, the words "younger males" are deleted and the words "a younger male" are substituted therefor.
5. The following is added as paragraph 5 of the CONCLUSIONS OF LAW:
"SDS violated the Wisconsin Fair Employment Act by discriminating against Gaulke on the basis of her sex and age with respect to the compensation she received as wage increases between 2000 and 2004, but she may only recover for the discriminatory salary increases she received no more than 300 days before she filed her complaint of discrimination on September 3, 2003, i.e., November 6, 2002."
6. The ALJ's ORDER is deleted and the following ORDER is substituted therefor.
1. Insofar as Gaulke's complaint alleges that SDS compensated her less than it compensated a younger male for performing substantially similar work this claim is dismissed.
2. SDS shall cease and desist from discriminating against Gaulke on the basis of her sex and age with respect to compensation awarded as wage increases.
3. SDS shall pay Gaulke as back pay what she would have received as wage increases from November 6, 2002, until she retired, had she been given the same percentages of wage increases that Paul Rozak received during this period. Gaulke shall also be awarded any other benefits she may have been entitled to as a result of these wage increases during this period. The respondent shall further provide Gaulke interest, at an annual rate of 12% simple interest, computed by calendar quarter, on such amount(s).
4. SDS shall pay Gaulke's reasonable attorney's fees and costs incurred based on her partial success. The check for this payment shall be made payable to Barbara Gaulke and Attorney Jacob P. Westerhof of DeWitt Ross & Stevens and mailed or delivered to Attorney Westerhof's law office.
5. "Within 30 days of the expiration of time within which an appeal may be taken herein, the Respondent shall submit a compliance report which provides details of the specific action it has 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. Wis. Stat. § § 111.395, 103.005(11) and (12) provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense."
The decision of the administrative law judge (copy attached), as modified, is affirmed in part and reversed in part.
Dated and mailed December 8, 2006
gaulkba . rmd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
In Schwinn v. Dodge County Cooperative (LIRC, 10/13/98), the commission stated the following with respect to claims of sex discrimination in compensation under the WFEA:
In evaluating complaints of sex discrimination in compensation under the Act, the commission has looked to the analysis followed under the federal Equal Pay Act. Sahr v. Tastee Bakery, ERD case no. 8800838 (LIRC, 1/22/91); and Anderson v. LIRC, case no. 87-CV-5338 (Wis. Cir. Ct. Dane County, 2/12/88), affirming Anderson v. City of Sheboygan Health Department, ERD case nos. 8104377 (LIRC, 8/20/87). Under the Equal Pay Act analysis, a complainant must show that the employer pays employes [sic] of different sexes differently for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions. If that showing is made, an employer is liable unless it proves that the pay differential is the result of: (a) a seniority system, (b) a merit system, (c) a system which measures earnings by quantity or quality of production, or (d) any factor other than sex. Sahr, supra; Anderson, supra, and Foss v. P.A. Bergner and Company, ERD case nos. 8950461 and 8951128 (LIRC, 03/04/91). The Equal Pay Act analysis has been described as a strict liability test in which it is not necessary to prove intent to discriminate: an employer who pays different wages is automatically liable unless it proves one of the defenses. Strecker v. Grand Forks County Social Services Board, 640 F.2d 96, 99, 24 FEP Cases 1019, 1020 footnote 1 (8th Cir. 1980).
However, in part because the provisions of the state fair employment statutes and the federal Equal Pay Act are not identical, it is also appropriate to apply the conventional analysis on the issue of discrimination. The conventional analysis is particularly appropriate where the wage differential is sequential rather than simultaneous. Under the conventional analysis, the complainant must make a prima facie case by showing she was a qualified worker treated less favorably with respect to pay than workers of the other gender. The burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for the pay difference. If such a reason is articulated, the complainant must prove by a preponderance of the evidence that the proffered nondiscriminatory reason was not the real reason for the discrimination in pay but merely a pretext for discrimination. Currie v. DILHR, 210 Wis. 2d 380, 389-90 (Ct. App. 1997). The conventional and Equal Pay Act analyses differ not only in terms of allocation of proof, but also on the issue of employer intent which is the central focus of the conventional analysis. Sahr, supra. On the other hand, the federal courts have held that Title VII of the Civil Rights Act and the Equal Pay Act should be construed in harmony, and have stated that the basic analysis is the same under either theory. Strecker, supra, at 24 FEP Cases 1020.
It should first be noted that the respondent asserts that Barbara Gaulke has significantly narrowed her claims on appeal; that rather than arguing she was discriminated against on account of her age and sex, as she did before the ALJ, she now argues only that she was denied equal pay because she is a woman. As support, the respondent cites an instance in Gaulke's brief in support of appeal where she has requested reversal of that portion of the ALJ's decision concluding that her position of elementary principal and the high school principal are not substantially similar, and another instance where Gaulke asserts the ALJ's decision is erroneous and requires reversal because the ALJ dismissed her claim for one reason: allegedly not showing the sufficient similarity between these positions. However, as noted by Gaulke, on the very first page of her brief on appeal she asserted that she "filed this complaint with the Equal Rights Division alleging age and sex discrimination (and an equal pay claim) in violation of the Wisconsin Fair Employment Act." In addition, Gaulke's brief cited alleged evidence of discrimination against her based on age, asserting that the discriminatory treatment affected her salary increases. (See for example, Gaulke's brief on appeal at pages, 9, 15, 18 and 25.) In any case, the commission conducts a de novo review of the record upon appeal of an ALJ's decision, and, accordingly, all matters at issue, not simply those which form the basis for the petition, are properly within the scope of its review. Kanter v. Ariens Co., (LIRC, 09/23/05).
Under the equal pay analysis, Gaulke must first establish a prima facie case of wage discrimination by showing that she and junior/senior high school principal Paul Rozak were paid different base salaries for equal work on jobs the performance of which requires equal skill, effort and responsibility and which are performed under similar working conditions. It is true that Rozak's starting base salary in 1998 was higher than the salary Gaulke received at that time, and that his salary continued to be higher than hers as of September 3, 2003, when Gaulke filed her charge of discrimination. The question presented is whether this difference in pay was for equal work on the jobs the performance of which requires equal skill, effort, responsibility and is performed under similar working conditions. If that is found to be the case, the question then becomes whether the respondent has proven one of the stated four affirmative defenses.
Citing Fallon v. Illinois, 882 F.2d 1206, 1209 (7th Cir. 1989), Gaulke states, "The crucial finding on the equal work issue is whether the jobs to be compared have a 'common core' of tasks, i.e., whether a significant portion of the two jobs is identical. (Quoting sources omitted.) If a plaintiff establishes this 'common core,' the question then becomes whether any additional tasks make the jobs 'substantially different.' " (Quoting source omitted.) Gaulke then argues that the only evidence she needed to make a prima facie showing that the two principal jobs were substantially similar was former school board member John Zeulke's "admission" that the positions were "essentially the same." The alleged admission by Zeulke was his response, "Yeah", to the question, "And the elementary principal's job is essentially the same (as the high school principal's job) but for the elementary school?" November transcript, 42.
As noted by the respondent, however, what Zeulke said is not an admission by any means. Zeulke was asked by Gaulke's counsel to state his general opinion regarding the school principals' duties. There was no foundation laid to establish that Zuelke had the specific knowledge necessary for an in-depth evidentiary comparison between the functions of the principals' positions. Further, in a generalized sense, a school principal is a school principal is a school principal, and Zeulke's general personal opinion reflects that generic point of view.
Indeed, critical to Gaulke establishing a prima facie showing seems to be whether the two jobs required similar effort and involved similar responsibility. First of all, with respect to responsibility, the job description for the two principal positions showed that Rozak had had several additional responsibilities that were not required of the elementary principal. These included screening, completing and bringing up to date all senior records, establishing the yearly schedule of classes for the high school, ensuring the scheduling of all high school students' programs of classes, etc., as listed in Complainant's Exhibit 7. There was no evidence presented one way or another regarding the significance of these additional junior/senior high school principal's duties relative to the responsibilities of the elementary school principal's responsibilities. More important though, in terms of the effort required to perform the junior/senior principal's job duties, while there is evidence regarding the effort required to perform the duties of junior/senior high school prinicipal [by way of the number of 8-hour days Rozak has typically logged each year for his first six years to perform the duties of junior/senior high school principal-301.4 eight-hour days vs. 220 contracted days (Complainant's Exhibit 117)], the record is silent with respect to the typical number of eight-hour days logged each year by Gaulke to perform the duties of elementary principal. And while Gaulke also performed some additional duties, as noted by the ALJ, "some specifics on the extra duties and hours would go a long way toward determining whether or not the positions are substantially similar." Gaulke presented absolutely nothing with respect to the number of hours' work required to perform her reading specialist duties, or her duties associated with the PTA meetings, an activity which has been dormant periodically. (1)
Gaulke attempts to argue that Rozak's extra hours logged are of no legal consequence because he receives extra compensation, in addition to his base salary, for his additional duties such as supervision of athletic events, serving as senior class moderator and for being a coach, whereas she also has additional duties including serving as the reading specialist for the District, the RIFF coordinator and the Title I coordinator but is only minimally compensated for serving as Title I coordinator. Gaulke's arguments fail. The evidence shows that the hours Rozak receives compensation for supervision at athletic events are not included in the typical number of eight-hour days he logged each year. Complainant's Exhibit 117. Also, Rozak testified that he had been the girls' head basketball coach as of the last winter (i.e., the 2003-04 school year), whereas his log of hours represents his typical hours worked since first commencing work with the respondent in 1998. Rozak's additional duty as senior class moderator is one of his extra-curricular activities, for which he receives remuneration. Rozak indicated that he received only $21.65 for about three hours work for extra-curricular activities, however. November transcript, 17. While Gaulke asserts that she was minimally compensated for serving as Title I coordinator, Gaulke testified that she received $2,000.00 per year for performing the Title I Coordinator duties, and that she puts in an additional two days for which she is paid this additional sum per the agreement. July Transcript, 70. Furthermore, as noted above, Gaulke presented absolutely nothing with respect to the number of hours' work required to perform her duties as reading specialist and her duties associated with the PTA meetings.
Assuming for purposes of argument that Gaulke has established a prima facie case, however, the evidence shows that there were factors other than gender that accounted for the difference in Rozak's base salary and Gaulke's salary. First of all, Rozak testified that there was a shortage of high school principals when he was negotiating for the position at the respondent and that he told the school board that he needed a salary of $68,000.00, which was somewhere in the middle range of what high school principals were getting according to AWSA, a state professional association. Further, Zeulke, a school board member at the time Rozak was hired, testified that "We had in mind what we'd like to offer him. Mr. Rozak come (sic) in with a higher figure than what we were looking at offering him. We decided at the time that if we wanted him, we'd have to step up and meet that expectation of his." November transcript, 39. "An employer may consider the marketplace value of the skills of a particular individual when determining his or her salary." (Quoting source omitted.) Cullen, 338 at 703. Second, as noted by the ALJ, Rozak's assertion, "everyone knows high school principals are paid more than elementary school principals" seems to be supported by exhibit 114, an excerpt from an Administrative Salaries Report produced by the Wisconsin Department of Public Instruction. In all but one of the school districts with a high school and elementary school principal(s), based on a 1.FTE calculation for the positions, the high school principal's salary was greater than that for the elementary school principal.
Gaulke argues that "To the extent ALJ Olstad relied, if at all, on [the Administrative Salaries Report from the Wisconsin Department of Public Instruction] to support his conclusion that the two jobs are not substantially similar, the conclusion was erroneous." Gaulke, in an attempt to minimize the significance of the DPI report, then makes a number of assertions as though the DPI report contained "average" salaries for elementary and high school principals. For instance, Gaulke asserts that only two school districts showed a greater wage disparity between high school and elementary principals than the respondent did, and that any analysis of Exhibit 114 would be irrelevant in any event because she is not an "average" elementary school principal; she has approximately forty-one years' experience and received wide recognition for her accomplishments. Whether the DPI report was used to support a conclusion that Gaulke's and Rozak's jobs are not substantially similar, or is more appropriately evidence of a market factor in the determination of elementary and high school principals' salaries, Gaulke's argument fails. First of all, the DPI report did not show average salaries, it was a report regarding actual salaries. Second, when Rozak was hired at a salary of $65,000.00, Gaulke's salary was $57,650.00, a difference of $7,350.00 between the two positions. (2) Based on a 1.FTE calculation for the DPI positions listed, contrary to argument by Gaulke, there were seven other school districts that showed a greater wage disparity between high school and elementary school principals than what existed in the respondent's school district. The wage differences in these seven school districts ranged from a low wage difference of $7,364.00, all the way up to a high wage difference of $17,774.00. In addition, there were three other school districts where the high school principals' salary was higher by $3,904.00, $5,965.00 and $6,466.00. Third, while the DPI report showed that Gaulke had 41 years' experience, it showed that Rozak had 29 years' experience, a difference of 12 years' experience. Just focusing on the seven school districts with greater wage disparities between the high school and elementary principals, in four of those school districts the elementary principal had greater experience than that of the high school principal that ranged from 10 to 22 years. Also, in the other three school districts where the high school and elementary principals' wage difference was slightly lower than the difference between Gaulke and Rozak's wages, in two of those districts the elementary school principal had 10 years' more experience than that of the high school principal.
The evidence fails to support a showing that Gaulke has proven she was discriminated against with respect to the salary differential based on Rozak's starting pay and what she was being paid under an Equal Pay Act analysis.
Similarly, Gaulke's claim fails under a conventional analysis of disparate treatment with respect to her salary. Again, assuming for purposes of argument that Gaulke established a prima facie case by showing she was a qualified worker treated less favorably with respect to her salary in comparison to Rozak's salary, the respondent has articulated as a nondiscriminatory reason for the difference in salaries that this was caused by market forces. Further, the respondent introduced evidence that tends to show that high school principals are paid more than elementary school principals. Gaulke has not shown that either of these explained reasons for the differences between her salary and Rozak's base salary amounted to a mere pretext for sex or age discrimination.
Gaulke's claim of discrimination in compensation also encompasses claims of sex and age discrimination with respect to raises. The commission acknowledges that Gaulke's claim of sex and age discrimination with respect to salary increases-salary increases which were almost exclusively determined by the board's reliance on Tuttle's recommendations-presents a closer question because despite evidence of Tuttle's discriminatory attitude and his discriminatory treatment of Gaulke on the basis of sex and age, Gaulke was still being given significant salary increases, at least early on, compared to what Michael Young and Rozak, the junior/senior high male principals were receiving. For example, for the 1996-97 year Gaulke was given a 2.78% salary increase whereas Young was given a 2.58% salary increase. After failing to receive a salary increase for the 1997-98 year (Young received a 2.71% increase that year) allegedly because the board felt she was disloyal, for the 1998-99 year she was given a 3.92% salary increase, and for the 1999-00 year she received 3.91% salary increase, whereas Rozak received a 3.47% salary increase that year.
The question that arises, though, is why was Gaulke given minimal salary increases for the 2000-01 and 2001-02 school years and no salary increases for the 2002-03 and 2003-04 school years? Gaulke was given a 1.71% salary increase for the 2001-02 year and a 1.64% salary increase for the 2001-02 year. Rozak was given a 4.20% salary increase for the 2000-01 year; a 5.14% increase for the 2001-02 year, a 1.27% increase for the 2002-03 year and a 2.68% salary increase for the 2003-04 school year. Gaulke argues that it was during the period between 2000 and 2004 that Tuttle's discriminatory treatment of her began to affect her salary.
The commission concludes that the preponderance of the evidence supports Gaulke's argument. First of all, the evidence showed that Tuttle continued to exhibit a discriminatory attitude toward Gaulke based on her age and sex and that he continued to treat her differently on the basis of age and sex during the period from 2000 to 2004. For example, in January 2003, "out of the blue" Tuttle asked Gaulke if she was considering retirement. July transcript, 59. Also, in explaining why he had never talked to Gaulke about alleged complaints by board members, Denise Marg, the elementary school psychologist, or by other people, Tuttle stated that he thought Gaulke's personality was "fixed" and that she was "past being able to be corrected." Id. at 21. In addition, Tuttle testified that he thought Gaulke was "stubborn", "combative" and had a "very strong personality", "[e]specially for a woman." Id. Further, Tuttle never talked to Gaulke regarding decisions he made that affected the elementary school, while most of the time he would talk to Rozak to get his input before making a decision affecting the high school. Moreover, despite repeated requests to meet with the board to discuss her compensation/raises (Complainant's Exhibit 16, 18) neither the board nor Tuttle ever explained to Gaulke why she was not getting raises. Id. at 56-57.
Second, that poor job performance on Gaulke's part could have been the cause for her receiving minimal or no salary increases is not supported by the record. As noted by the ALJ in his memorandum opinion, "The district's witnesses marched in virtual lock step. All agreed Ms. Gaulke was a terrible principal but could not point to any performance issues to support that assertion. They agreed Ms. Gaulke was the subject of numerous parental complaints but could not specifically recount any." Indeed, John Southworth, a board member since the 2001-02 school year admitted that he had no knowledge whether or not Rozak's performance was any better than Gaulke's since he has been on the board. November Transcript, 64. In addition, as the ALJ also noted, "it was the school board's position that since Ms. Gaulke had self-renewed her contract the members assumed she was happy with her pay and there was no need to address the matter. None of the board members could reconcile that view with the record showing letters from Ms. Gaulke, requesting to meet with the board to discuss adjustments in salary, during each of the last three contract extensions..."
LIMITATION ON GAULKE'S ABILITY TO CHALLENGE DISCRIMINATORY PAY RAISES
Wisconsin Statute § 111.39(1) provides in relevant part as follows:
The department may receive and investigate a complaint charging discrimination...in a particular case if the complaint is filed with the department no more than 300 days after the alleged discrimination...occurred."
In Amtrak v. Morgan, 536 U.S. 101, 122 S. Ct. 153 (2002), where the Court considered whether, and under what circumstances, a Title VII plaintiff could file suit on events that fell outside the time filing period, the Court held that the statutory language of Title VII precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period. (3) In Amtrak, the Court, as prior commission decisions have noted, identified the following as examples of discrete acts: termination, failure to promote, denial of transfer, refusal to hire, denial of training, written counselings, award of compensation. See for example Kanter, supra; Wodack v. The Evangelical Lutheran Good Samaritan Society (LIRC, 08/05/05); Koenigsaecker v. City of Madison (LIRC, 03/11/05); Lau v. Latec Credit Union (LIRC, 02/07/03). Further, in Amtrak, the Court stated:
...discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.
536 U.S. at 113.
Prior to Morgan, many circuits, some relying on the continuing violation doctrine, held that a plaintiff could challenge her initial wage rate as unlawful, even though it had been established outside the limitations period, because she continued to receive pay checks within the limitations period. Ledbetter v. Goodyear Tire and Rubber Co., Inc., 421 F.3d 1169, 1181 fn 17 (and accompanying text)(11th Cir. 2005).
Since Morgan, however, a number of circuits that have considered claims of discriminatory compensation, including the Seventh Circuit, have limited recovery in such actions to discriminatory paychecks received within the limitations period. For example, in Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014 (7th Cir. 2003), the court stated:
Using Morgan as our guide, therefore, we must conclude that each of Dr. Hildebrandt's paychecks that included discriminatory pay was a discrete discriminatory act, not subject to the continuing violation doctrine. [At this point in a footnote the court noted that another panel of this court had reached the same conclusion regarding Morgan's effect on discriminatory pay claims, citing Reese v. Ice Cream Specialties, Inc., 347 F.3d 1007 (7th Cir. 2003.] Therefore, Dr. Hildebrandt may only recover for the discriminatory pay received within the statute of limitations period.
Similarly, in Ledbetter, the court stated, "Under Morgan, therefore, Ledbetter can state a timely cause of action for disparate pay only to the extent that the 'discrete acts of discrimination' of which she complains occurred within the limitations period created by her EEOC questionnaire. Any acts of discrimination affecting her salary occurring before then are time-barred." 421 F. 3d at 1180. (4) (The Supreme Court has granted Ledbetter's petition seeking review of the Eleventh Circuit's decision. U.S. No. 05-1074, 126 S. Ct. 2965 (June 26, 2006).
Thus, under what appears to be the prevailing current law, since Gaulke filed her complaint of discrimination on September 3, 2003, she may not recover for the discriminatory pay raises she received that are more than 300 days before September 3, 2003. That is, she may not recovery for any discriminatory pay raises before November 6, 2002.
The commission has issued a general order requiring the respondent to pay Gaulke's reasonable attorney's fees and costs because the commission has reason to believe the parties may be able to reach a consensus on the matter of attorney's fees and costs. First, the commission notes that at page 4 of the respondent's counsel's post-hearing brief to the ALJ that counsel stated: "If the Department rules the school district discriminated against Ms. Gaulke with respect to her compensation, it will determine how many paychecks it paid to her within the 300-day limitation period and during the pendency of this action; it will then calculate (consistent with the Department's ruling) what salary payment properly should have been; and, will further determine whatever ancillary amounts are needed to make the complainant whole." In other words, counsel's comments here suggest that the respondent would not be an obstacle to the parties arriving at consensus on this matter. The commission also notes that Gaulke's attorney has never responded to the respondent's arguments about the limitations of her relief to discriminatory paychecks during the statutory limitations period.
NOTE: The commission's determination that the respondent discriminated against Gaulke, in violation of the WFEA, on the basis of age and sex with respect to the raises she was given between 2000 and 2004, was not based on a differing assessment of witness credibility but as a matter of law since the ALJ found, and the commission agrees, that Gaulke (and possibly Rozak) was the only truthful witnesses.
cc:
Attorney Jacob P. Westerhof
Attorney Joel L. Aberg
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