KAREN L KLOTH, Complainant

STATE OF WISCONSIN, Respondent

An administrative law judge for the Department of Workforce Development issued a decision in the above-captioned matter on February 29, 2008, dismissing the complainant's complaint of discrimination based upon gender and retaliation. The complainant has filed a timely petition for review of the administrative law judge decision.

Based upon a review of the applicable law, records and evidence in this case, the Commission hereby issues the following:

The decision of the administrative law judge is set aside and this matter is remanded to the Division for continued proceedings before this administrative law judge, and, after the presentation of all the evidence by the parties, the issuance of a new decision on the complainant's complaint of discrimination.

Dated and mailed November 14, 2008
klothka . rrr : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The complainant brought this action under the Wisconsin Fair Employment Act alleging that she was denied a promotion and subjected to unfavorable terms and conditions of employment because of her sex and in retaliation for opposition to discriminatory practices.

This matter came before the administrative law judge, and is now before the commission, on probable cause. The complainant's burden in a probable cause proceeding is a lesser one than in a case on the merits. The standard of proof at a probable cause hearing has been described as "low." See, Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).

At the close of the complainant's case-in-chief the administrative law judge, on his own motion, dismissed her complaint for lack of probable cause. Although the respondent did not request a dismissal and was prepared to go forward with the presentation of its case, the administrative law judge decided that the complainant's evidence was insufficient to meet her initial burden and dismissed the complaint without consideration of the respondent's evidence.

The commission has repeatedly cautioned against the premature dismissal of a complaint before both parties' evidence has been heard. In Roberge v. Department of Agriculture, Trade and Consumer Protection (LIRC, May 31, 2005) the commission stated, in relevant part:

A dismissal at the close of the complainant's case-in-chief contemplates a circumstance in which it is clear that, whether or not the respondent introduces any evidence on its behalf, there is simply no way in which the complainant can reasonably prevail. The commission is of the view that, in all but the clearest and most unambiguous of circumstances, the best practice is to require the respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. . . .

See, also, Holcomb v. American Convenience Products (LIRC, March 25, 1988)("Caution must be exercised in granting a request to dismiss at the close of a complainant's case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing."); Cappelletti v. Ocean Spray Cranberries, Inc. (LIRC, Feb. 25, 2008)("[T]he commission strongly recommends that mid-hearing dismissals be granted only after careful consideration and in the most narrow of circumstances.)

In this case, the administrative law judge's dismissal of the complaint at the close of the complainant's case was in error. As the administrative law judge observed, the complainant's evidence is extremely thin. However, as thin as the evidence may be, the commission is nonetheless unable to conclude that there is no way in which the complainant could reasonably prevail. While the commission does not disagree with the administrative law judge that the complainant failed to present evidence that would support a finding of retaliation, it believes that her evidence is sufficient to meet her initial burden with respect to the issues of failure to promote and discriminatory terms and conditions of employment and that the respondent should have gone forward with the presentation of its defense.

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 employees of similar qualifications, who were not in the protected group, were promoted instead. Foust v. City of Oshkosh Police Dept. (LIRC, April 9, 1998), citing Freeman v. Lewis, 675 F.2d 398, 400 (D.C. Cir. 1982). The complainant 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, demonstrated that she applied for a promotion to sergeant, was interviewed for the position, but was not selected. The complainant further established that three male employees applied for the same promotion and that at least two of the male applicants were promoted while she was not. The complainant also demonstrated that she later spoke with one of the members of the three-member interview panel, who told her she had done well. This is sufficient prima facie evidence to shift the burden to the respondent to present a legitimate non-discriminatory explanation as to why the complainant was not selected and which, if left unrebutted, would warrant a conclusion that the complainant's sex was a factor in the decision. The administrative law judge's dismissal of the complaint without hearing that explanation was in error.

Turning to the issue of disparate terms and conditions of employment, the administrative law judge found that the complainant's complaint centered exclusively on placement in a mentoring program, which the administrative law judge concluded was not a term or condition of employment and which, moreover, she failed to demonstrate was because of her sex. Although the commission does not agree with the administrative law judge that a mentoring program is not a term and condition of employment, it does agree that the complainant failed to present any evidence of disparate treatment with respect to the mentoring program. The evidence indicates that the complainant was placed in the mentoring program because of communication issues and, although her witness stated he was unaware of any males sent to a mentoring program, there is no evidence that other males had similar communication issues. Consequently, the commission does not believe that, even in the absence of any evidence from the respondent, the complainant could prevail on this issue.

However, the mentoring program was not, in fact, the only disparate term and condition of employment alleged. To the contrary, the complainant also contended that she was discriminatorily removed from "vigil" assignments, while male employees who violated the same safety rules were not. At the hearing the complainant presented evidence demonstrating that for several months her job assignments were altered due to concerns about her safety, apparently related to threats against her by inmates. The complainant's witness, a male, testified that his life has been endangered or threatened on numerous occasions, but that his job assignments have never been altered as a result. The burden on probable cause is meant to be a low one, and the commission believes that the evidence establishing the complainant's job assignments were altered based upon threats to her life, while a male employee who is a frequent recipient of inmate threats was treated differently, is sufficient to satisfy the complainant's initial burden. It is hard to conclude that no discrimination occurred without hearing the respondent's explanation as to why a female employee's job assignment was manipulated to address concerns about her personal safety whereas a comparable male employee's was not.

Finally, with respect to the retaliation issue, the administrative law judge correctly noted that, although the complainant complained to the respondent that she was being harassed, her complaints did not reference harassment based upon sex. While in the complainant's petition she asserts that she told the respondent on several occasions she believed the harassment was based on her sex, this assertion is unsupported by any evidence in the hearing record. Consequently, the complainant's evidence is insufficient to establish probable cause on the issue of retaliation.

cc: Attorney Deborah Rychlowski

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