SHARLEEN M LEONARD, Complainant
COUNTY OF MILWAUKEE
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:
The last sentence of numbered paragraph 8. in the FINDINGS OF FACT section is deleted and the following substituted:
Leonard told Sheriff Clarke that a meeting was being set up by Minnie Linyear, and Sheriff Clarke told Leonard that she could decide after the meeting whether she was going to resign.
In the second sentence of numbered paragraph 13. in the FINDINGS OF FACT section, the word "assistant" is changed to "associate."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed June 15, 2007
leonash . rmd : 115 : 9
/s/ James T. Flynn, Chairman
/s/ Robert Glaser, Commissioner
In her charge, the complainant alleges that she was discriminated against based on her sex when:
(a) she was treated less favorably than coworker Montgomery in regard to certain terms and conditions of her probation;
(b) on May 20, 2004, the working title and reporting relationship of her position were changed;
(c) she was harassed by coworker Montgomery; and
(d) she was discharged on June 8, 2004
Wisconsin courts, in the absence of the Fair Employment Act's (WFEA) establishment of a specific procedure by which a complainant must prove a claim of disparate treatment, such as that advanced here, have adopted the basic allocation of burdens and order of presentation of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172- 173, N.W.2d 372 (Ct. App. 1985); Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003).
The first step in this analysis requires the complaining party to establish a prima facie case of discrimination. In general, to establish a prima facie case of discrimination, a complainant must show that she was a member of the protected group, and that she was treated less favorably than others not in the protected group.
The complainant first alleges that, unlike coworker Montgomery, a male physician who successfully completed probation, she was not provided a performance evaluation at the midpoint of her probationary period and was not provided sufficient information and training to enable her to successfully complete probation.
However, the complainant failed to establish in the hearing record that Montgomery or any other male probationary physician was evaluated at the midpoint of his probationary period, or was provided different information or training than she was. As a result, the complainant has failed to establish a prima facie case of sex discrimination in regard to this allegation.
The complainant also alleges that she was discriminated against on the basis of sex when, on May 20, 2004, she was demoted, i.e., the title of "Associate Medical Director," was removed as the working title of her position, and Montgomery, her peer, became her immediate supervisor.
The complainant, however, did not show that this action constituted a demotion, i.e., did not show that her classification, assigned work duties, or compensation actually changed.
Moreover, even if this change in working title/reporting relationship qualifies as a cognizable adverse employment action, the complainant failed to show that she was treated less favorably in this regard than similarly situated male employees.
The complainant does not appear to dispute that, as a probationary physician, she failed to satisfy the productivity goal established by the respondent for the number of patient visits she was expected to complete. In addition, the complainant acknowledges that she needed to acquire additional training in certain medical areas. In an email (exhibit #6) dated April 24, 2004, she stated to Grebner that she planned to review "the areas I believe I am weak in as a result of my limited focus working in urgent care and stress testing, specifically pain management, psychiatry, diabetes, and addiction/withdrawal." Moreover, the complainant acknowledges that she did not understand her job duties and expectations, believed that her initial training/orientation had been incomplete, and needed to acquire additional familiarity with the policies and procedures of the health services unit.
The complainant did not establish that any male physician with a comparable productivity record, and need to acquire additional medical training and familiarity with his assigned job duties and the respondent's policies and procedures, had retained his working title and reporting relationships during his probationary period.
As a result, the complainant has failed to establish a prima facie case of sex discrimination in regard to the alleged demotion.
To establish a prima facie case of a discriminatory discharge, the complainant must show that: (1) she was a member of the protected group; (2) she was discharged; (3) she was qualified for the job, and (4) either she was replaced by someone not within the protected class or others not in the protected class were treated more favorably. Puetz, supra.
The complainant was discharged because she failed to report for work on June 7, 2004, in violation of her agreement with Grebner.
The complainant failed to show either that she was replaced by a male, i.e., the only reference in the record to a successor physician is to a female, a Dr. Levin; or that any male physician was retained under comparable circumstances. As a result, the complainant did not establish a prima facie case of sex discrimination in regard to her discharge.
If the complainant had established a prima facie case, the burden would then shift to the respondent to articulate a legitimate, nondiscriminatory reason for her discharge. McDonnell Douglas Corp., supra. The respondent articulated such a reason, i.e., the complainant's deliberate failure to report to work on June 7, 2004, to begin her reorientation program.
The burden would then shift to the complainant to show that this reason was a pretext for sex discrimination.
The complainant did not report to work on June 7, 2004, because she disagreed with certain elements of the reorientation program developed by Montgomery and approved by Grebner. However, it was the respondent's, not the complainant's, prerogative to determine the components of this program. The complainant acknowledges that she needed to acquire additional familiarity with, and clarification of, the requirements of her position and with the respondent's policies and procedures, as well as additional medical training in certain areas. The respondent developed a reasonable program to provide such information and training and to evaluate the complainant's mastery of it, and was reasonably justified in discharging the complainant when she deliberately flouted one of its key requirements, i.e., that she report to work on June 7 to begin the program.
The complainant failed to sustain her burden to demonstrate pretext in regard to her discharge.
Finally, the complainant alleges that she was sexually harassed by Montgomery. This harassment, according to the complainant, took the form of a series of emails outlining the parameters of the reorientation program as well as the reference in these parameters to possible disciplinary action for any failure by the complainant to comply.
None of these actions have a sexual component within the meaning of Wis. Stat. § § 111.32(13) and 111.36(1)(b).
Moreover, the only actions which could arguably qualify as harassing in nature, rather than as discrete employment actions or terms and conditions of employment, were remarks which the complainant apparently considered demeaning or dictatorial. However, these remarks were clearly not sufficiently severe or pervasive to constitute actionable sexual harassment within the meaning of Wis. Stat. § 111.36(1)(br).
The complainant has failed to sustain her burden to prove that probable cause exists to believe that she was discriminated against based on sex as alleged.
cc: Attorney Roy L. Williams
Appealed to Circuit Court. Affirmed February 28, 2008.
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