CAROL E ALLEN, Complainant
STATE OF WISCONSIN / OSER, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge (copy attached) is affirmed.
Dated and mailed February 12, 2007
allenca . rsd : 125 : 9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The complainant, Carol Allen, has been an employee of the State of Wisconsin, working at the University of Wisconsin-Eau Claire since 1971. Allen's date of birth is August 11, 1945. She is a member of the Wisconsin State Employees Union (WSEU) in the Administrative Support Unit (ASU). Prior to May 2003, Allen's position was classified as Program Assistant 4, pay range 2-11. On May 17, 2003, a new collective bargaining agreement between the WSEU and the State of Wisconsin became effective. This new agreement, negotiated by the WSEU and the Office of State Employment Relations (OSER), included among other things, a change in certain job classifications and a stratification pay increase dependent on the employee's amount of seniority.
Under the new agreement, effective on May 18, 2003, employees in the Program Assistant (PA) series positions, PA-1, 2, 3 and 4 at non-doctoral campuses in the University System were reallocated to a new classification-Dean Assistant, pay range 2-11. Also on May 18 pursuant to the new agreement, only employees in certain classifications (with 10 years of seniority), which did not include Allen's new Dean Assistant classification, were eligible for the stratification pay increase.
Included in Allen's complaint alleging she was discriminated against on the basis of her sex and age, was a claim of sex and age discrimination because of her ineligibility for the stratification pay increase, but she has since dropped that portion of her complaint due to the approval of a subsequent contract awarding the market stratification increase to employees who had not previously received it.
As indicated by the ALJ, the gist of the remaining portion of Allen's claim is an assertion that her reclassification from her position in the multi-level Program Assistant series to the single level Dean Assistant classification resulted in males and females under the age of 40 who were reclassified to Dean Assistant being favored, in compensation and terms and conditions of employment, over females over the age of 40. Further, she asserts that the failure of her Dean Assistant reclassification to consider experience and the type of work performed resulted in the disparity being exaggerated.
The ALJ found that Allen had presented no statistical evidence, and that the record was devoid of any sort of statistical analysis, suggesting the reclassification resulted in a disparate impact on the pay and/or terms and conditions of employment she claims. Accordingly, the ALJ concluded there was no probable cause to believe the respondent discriminated against the complainant with respect to the terms and conditions of her employment or her compensation, in violation of the WFEA, when it implemented the reclassification as required by the 2003 labor agreement.
On appeal, with respect to the ALJ's finding regarding statistical evidence, Allen appears to assert that several individuals who "work in statistics" with whom she has discussed her claim of age discrimination agree with her claim, and thus she is in a quandary over the ALJ's decision regarding statistics.
Under the disparate impact theory of discrimination, 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. Disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. Rosneck v. University of Wisconsin Madison, (LIRC 08/10/06) (1), citing Racine Unified School District, 164 Wis. 2d 567, 594-95, 476 N.W.2d 708 (1991); Abaunza v. Neenah Foundry (LIRC 03/30/93); Kaczmarek v. City of Stevens Point (LIRC 08/12/03).
The record fails to establish that the complainant's reclassification resulted in a disparate impact on those in the protected age group with respect to compensation and/or terms and conditions of employment. First of all, as noted by the respondent, all employees in the Program Assistant series were moved into the Dean Assistant classification with the same pay range, 2-11, whether they were over or under age 40. See Exh. R-1B. Further, even if one analyzes the pay increases employees received in the Dean Assistant classification, there was only one member of that group who is under age 40 and who received a greater pay increase than Allen. One person out of all the employees in the Dean Assistant classification is statistically insignificant.
In addition, as noted by the respondent, an examination of other employees further shows that neither age nor seniority had anything to do with the wage increases they received. For instance, the evidence shows that: Employees who were older and had more seniority than Allen received a greater increase than Allen; there was one employee who was 2 years older but had 5 years less seniority and received almost the same pay increase as Allen; there was one employee who was 2 years younger and had 4 years less seniority but received almost the same pay increase as Allen; there was one employee who was 5 years younger and had 1 more year of seniority but received almost the same pay increase as Allen; there was one employee who was 1 year older but had 6 less years of seniority who received about the same pay increase as Allen; there was one employee who was 3 years younger but with 5 months more seniority who received exactly the same pay increase as Allen; there was another employee who was the same age who had about 1 year less seniority who received a pay increase of about $1.04 more than Allen.
Finally, as also noted by the respondent:
"As proof that Ms. Allen was not discriminated based on age in respect to the pay range she is in [2-11], one can examine what happened to incumbents of positions identified in this record who were placed in the 02-12 pay range that Ms. Allen now claims she should be in. An example of that would be positions previously in the Program Assistant series that were reallocated into the Medical Program Assistant and Medical Staff Assistant classifications at the same time Ms. Allen was moved into the Deans (sic) Assistant classification. (Resp. Exh. 1F, p. 4; Resp. Exh. 1J) Of those 247 employees (2) only six (6) were moved into the 02-12 pay range (Medical Staff Assistant classification) that was negotiated between the Union and the State; the rest were moved into classifications that were at the same or lower pay ranges than Ms. Allen's position. Not only were those six (6) all females, but all were over 40 years of age and all had less seniority to varying degrees (1 year to 27 years) than Ms. Allen."
(Emphasis in original.)
For the reasons stated above, the commission has affirmed the decision issued in this matter by the administrative law judge.
cc: Attorney David J. Vergeront
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