GWENDOLYN EZELL, Complainant
NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, 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 conclusions in that decision as its own, except that it makes the following modifications:
The following sentence is added to the first paragraph of the decision:
At hearing, the complainant withdrew her allegation of discriminatory discharge.
In numbered paragraph 1. of the FINDINGS OF FACT section, the word "brown" is changed to "black" to accord with the evidence of record.
The following sentence is added to numbered paragraph 12. of the FINDINGS OF FACT section:
Molloy also shared her impression that Ezell did not want to live in Milwaukee.
Numbered paragraphs 17. through 22. of the FINDINGS OF FACT section are deleted.
Numbered paragraphs 2., 3., and 4. of the CONCLUSIONS OF LAW section are deleted.
Exhibits #12, #14, #31, #42, and #44 are received into the hearing record. Evidence is received to the effect that Ezell attended the deposition of the individual she understood to be the successful candidate and to be named Sherry Noll, and this individual appeared to her to be white. The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed March 23, 2010
ezellgw . rmd : 115 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
During Molloy's supervision of Ezell, Molloy completed one evaluation of Ezell's performance, and stated in this evaluation that Ezell's performance met expectations. During this period of time, Molloy offered constructive criticism of Ezell's performance.
Also during this period of time, Ezell and Molloy disagreed about the promotion of Regina Anderson (Anderson), one of Ezell's subordinates. Molloy supported this promotion and Ezell opposed it. Anderson is African-American.
On April 12, 2007, Ezell informed Molloy that she would be resigning her position with Northwestern to take a position with Pepsi. Molloy asked Ezell whether there was anything she could do to induce Ezell to remain at Northwestern, and Ezell indicated there was not.
Ezell's last day of employment with Northwestern was April 27, 2007. She remained employed with Pepsi from April 30 through June 2, 2007.
During June 2007, Ezell noticed on Northwestern's website a posting for a Senior Risk Management Consultant position. Ezell contacted John Dowell, Northwestern's Director of Diversity, to inquire about the posting. After this contact, Molloy phoned Ezell and asked her to have lunch with her.
At their July 2, 2007, lunch meeting, Molloy told Ezell that her former position was vacant and had been elevated to a Level 19 level, and she was actively recruiting to fill the position. Molloy told Ezell that she was considering several candidates for the position, would prefer to hire someone who had not been trained by Williams, had been surprised to learn that Ezell had regularly met with Williams during the period of her supervision by Molloy, believed that Williams had been performing some of Ezell's responsibilities even though Ezell had taken credit for their completion, and had concerns regarding Ezell's ability to manage people, citing the Anderson situation as an example. Molloy also told Ezell that she did not believe Ezell had ever been committed to Northwestern, or intended to remain in Milwaukee.
Ezell was concerned about Molloy's statements, and contacted Dowell later on July 2. Dowell told Ezell he would get back to her to schedule a meeting some time the week of July 9. When Ezell did not hear from Dowell, she filed a charge of discrimination on Friday of that week, i.e., July 13, 2007.
Ezell did not file an application for the subject Level 19 position.
The complainant's charge alleges discrimination on the bases of race and color in regard to a discharge, a failure to promote, and a failure to rehire.
At hearing, the complainant withdrew her discharge claim. Her remaining allegations both relate to Northwestern's failure to appoint her to the Level 19 position in July 2007. Since the employment relationship with Northwestern had ended in April 2007, even if she had been hired for this position, it would not have been a promotion. Consequently, the only cognizable act of alleged discrimination is Northwestern's failure to rehire her in July 2007.
Procedural issues
Ezell objects to several of the ALJ's rulings.
Complainant's exhibits #12 and #14
These two exhibits were authored by Ezell during the period of her employment by Northwestern, and represent her descriptions of the duties and responsibilities of her position in October 2005 and March 2006. Although the weight to be accorded them is limited by the fact they were authored by Ezell, not her supervisor, since they relate to the nature and scope of her work experience, a factor to be considered in reviewing a hiring decision, the commission has overturned the ALJ's ruling and admitted them into the record.
Complainant's exhibit #42
This document is a position description authored by Ezell during the period of her employment by Northwestern describing the duties and qualifications for a lower level position than hers. The complainant offered this exhibit to support her contention that, since this lower level position required a bachelor's degree, it is implicit that the subject higher level Level 19 position did so as well, and that the successful candidate for the Level 19 position could not have met this educational requirement since she did not have a bachelor's degree. Even though, as discussed below, Ezell did not prove that the Level 19 position required a bachelor's degree or that the successful candidate did not possess one, this exhibit has certain limited probative value, and the commission has overturned the ALJ's ruling and admitted it into the record.
Complainant's exhibit #31
This is an evaluation of the complainant's work performance during 2005 authored and signed by Williams, but also signed by Molloy, apparently due to Williams' supervision of Ezell during most of 2005. The ALJ excluded this exhibit because it was not authored by Molloy. However, it is relevant as a prior supervisor's opinion of her work performance in a position related to the Level 19 position at issue, and, consequently, to her experience and qualifications for the subject position. The commission has overturned the ALJ's ruling and admitted it into the record.
Ezell's testimony as to the "accuracy" of Molloy's statements during their July 2 lunch meeting
Ezell testified, as relevant here, that Molloy made the following statements during their July 2 lunch meeting (see pages 42-45 of transcript):
1. She felt that certain of the candidates she was considering for the Level 19 position would be more successful in the position than Ezell because they had not been trained by Williams, and would have no need to interact with Williams if they were hired.
2. She did not believe that Ezell was responsible for certain of the work for which she had taken credit, but instead believed that, during their monthly meetings, Williams had dictated how Ezell should complete this work and Ezell then acted "as a puppet" in carrying out his directives. When Ezell responded that she had in fact completed all of the work for which she had taken credit, Molloy responded that, "I know that Jeff Williams was behind all of it."
3. Ezell had not shown leadership in managing people, citing as an example Ezell's opposition to the promotion of Anderson.
4. Ezell was never committed to the company, and was only concerned about advancing her career.
5. Because Ezell had not purchased or rented a home in Milwaukee, it did not appear she was committed to staying in the Milwaukee area
The ALJ excluded Ezell's testimony as to the "accuracy" of these statements by Molloy, based upon Northwestern's argument that their accuracy is irrelevant as long as Molloy actually believed them.
One of the deficiencies in Ezell's argument here is that these statements do not represent facts so much as they represent perceptions or opinions drawn from circumstances in which Ezell and Molloy were involved. Ezell does not explain, for example, what testimony she herself could possibly offer to establish that Molloy's perception that Ezell was not committed to the company was in fact not Molloy's actual perception, or, despite the fact that Ezell decided to leave Northwestern to work for another company, was a perception with no reasonable factual basis.
Similarly, Ezell does not explain what testimony she could offer to establish that Molloy's perception that Ezell was not committed to staying in Milwaukee, based upon her failure to purchase or rent a home in the area, was not in fact Molloy's perception or had no reasonable factual basis.
Presumably, Ezell and Molloy had discussed Anderson's qualifications for promotion while they worked together, and had simply formed different opinions based upon the same facts. Ezell does not explain what testimony she could offer to establish that Molloy's opinion was not in fact her opinion or had no reasonable factual basis.
Finally, Ezell does not explain what facts she could offer to establish that Molloy's view of Ezell's working relationship with Williams was not in fact her view or, given that Ezell continued to meet regularly with Williams after he was no longer her supervisor, had no reasonable factual basis.
Consequently, Ezell has failed to offer sufficient specificity in her offer of proof or in her argument to the commission to establish, as discussed above, that the ALJ's exclusion of this testimony constitutes reversible error, i.e., that Ezell would have offered testimony that would have led to a different result.
Ezell's testimony as to statements by Dowell that African-Americans were underrepresented in management positions at Northwestern
The commission could not locate this offered testimony/exclusion in the transcript, and, although Ezell cites to pages 30-32 of the transcript in her argument, these pages do not reflect the offer of this testimony. Moreover, such testimony, if offered, would have been properly excluded since this is a disparate treatment case, not a disparate impact case, and underrepresentation is not relevant to the central question in a disparate treatment case,
i.e., the question of the intent of the decision-maker.
Ezell's testimony as to the candidacy of Terri Minik
Terri Minik (Minik) was claimed by Ezell to be a candidate for the Level 19 position. Ezell wanted to offer testimony to the effect that Minik, a white individual, was offered the subject position. When asked the basis for her knowledge, Ezell testified that Minik had told her this. The ALJ properly excluded this testimony because it constituted uncorroborated hearsay evidence.
Ezell's testimony as to the application of Sherry Noll (Noll) for the Level 19 position, and Noll's qualifications for the position
The proposed testimony and rulings at issue here are set forth at pages 52 through 56 of the transcript. Ezell was asked the name and race of the successful candidate, and whether this individual had a bachelor's degree. When Northwestern objected to this testimony, Ezell explained that she had acquired this knowledge from attending the deposition of Noll. The ALJ excluded this testimony.
Ezell was competent to testify that she attended the deposition of the individual she understood to be the successful candidate and to be named Sherry Noll, and this individual appeared to her to be white. The commission has added evidence to this effect to the record. This does not, however, establish that this individual was in fact the successful candidate, is white, or is named Sherry Noll.
Ezell was not competent to testify, based solely upon her attendance at a deposition, as to the substance of the deposition, including the name of the deponent, her race, or her candidacy. Such testimony constitutes hearsay evidence, and was properly excluded.
Ezell implies in her argument that Noll's application (exhibit #44) was not received. It is not clear from the record whether it was received or not. The commission has clarified that it was received, but notes that the record does not establish that the individual who prepared this application, Sherry Noll, was in fact the successful candidate for the position.
Northwestern's response to Ezell's request to admit #6
During the hearing, Ezell offered Northwestern's response to Ezell's Request for Admission #6. Northwestern objected because the discovery response had not been noticed as a potential hearing exhibit. The ALJ sustained the objection.
Request for Admission #6 asks Northwestern to admit or deny that Ezell was qualified for the "newly restructured Level 18 position." Northwestern's response is that she was qualified. Although it is not clear to what position this request is referring, it is more reasonably interpreted as referring to Ezell's former Level 18 position, since the position at issue was a Level 19 position. It would appear to be undisputed that Ezell was qualified for her former position since Northwestern placed her in it. This admission does not establish, as urged by Ezell, that she was qualified for the subject Level 19 position. Consequently, the ALJ properly excluded the discovery response based upon Ezell's failure to notice it is a potential hearing exhibit, but, even if it were admitted, it would establish only that Ezell was qualified for her former position, a fact which appears to be undisputed.
Probable cause
The issue, as discussed above, is whether probable cause exists to believe that Ezell was discriminated against on the basis of her race or color when she was not rehired by Northwestern in July 2007.
In reviewing a failure to hire case such as this one in which disparate treatment 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 was rejected under circumstances which give rise to an inference of unlawful 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 respondent to articulate some legitimate, nondiscriminatory reason for the complainant's rejection. Should the respondent articulate such a reason, the complainant must then prove that the reason offered by the respondent was a pretext for discrimination. Burdine, supra.; Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).
The first question then is whether the complainant succeeded in establishing a prima facie case of race/color discrimination.
The record shows that Ezell is a member of a protected class on the basis of her race and color.
Northwestern argues that the record does not show that Ezell was qualified for the Level 19 position because it does not show what the assigned duties and responsibilities of the Level 19 position were. The specific duties/qualifications of the Level 19 position are not established in the record. However, for purposes of analysis, and because it is a reasonable inference from the record that the core responsibilities of this position were effectively equivalent to those of Ezell's former Level 18 position, it is assumed that the record establishes that Ezell was qualified for the Level 19 position.
Northwestern further contends that the record does not establish that Ezell applied for the Level 19 position.
Ezell's response to this contention is interesting. She first argues that, although she did not complete a formal written application, she did in fact apply for the position by means of her expression of interest to Dowell, and her "interview" by Molloy at their lunch meeting. The record, however, does not support a finding that the lunch meeting was intended or carried out as an interview, or that Ezell in fact applied for the Level 19 position.
Ezell then goes on to argue that, even though she did not apply for the position, despite arguing earlier that she had, her claim is cognizable because she was effectively de-selected for the position before she had a chance to make a formal application. The commission agrees. Under the circumstances present here, when the hiring authority tells a potential candidate why she would not be a good fit for the position, the individual should not be required to go through the sham of applying for the position in order for an adverse action to be established.
Northwestern also argues that the record does not present an inference of discrimination because it does not establish the identity or race/color of the individual hired for the Level 19 position. However, again, for purposes of analysis, it is assumed that Ezell sustained her burden to establish an inference of discrimination, and, consequently, a prima facie case of race/color discrimination.
Ezell argues that, if she sustained her burden to establish a prima facie case of discrimination, the ALJ's ruling to grant Northwestern's motion to dismiss is required to be overruled and this matter remanded for further hearing.
This has generally been the practice if the record did not include evidence as to the respondent's articulated reason for the subject action. In this case, however, as acknowledged by the complainant, this reason was established. In particular, Ezell states in her February 27, 2009, brief:
In addition, in her April 14, 2009, reply brief, Ezell states:
As the court held in Flowers v. Crouch-Walker Corp., 14 FEP Cases 1265, 1267, 1268 (7th Cir. 1977), relied upon by the commission recently in Traska v. Mid States Express, ERD Case No. CR200603452 (LIRC Jan. 22, 2009), so long as the complainant is made aware of the respondent's asserted justification for the discharge, the complainant cannot complain that she has not been afforded the opportunity in her case in chief to show that the respondent's asserted reason for discharging her was pretextual. See, also, Cortez v. City of Milwaukee, ERD Case No. 199802055 (LIRC Jan. 31, 2001).
As characterized by Ezell, the reasons offered by Molloy were her beliefs that certain of the other candidates she was considering would be more effective in the position because they had not been trained by Williams, Williams had directed or completed certain of the work for which Ezell had taken credit, Ezell had not shown leadership in managing people, and Ezell was not committed to the company or to staying in Milwaukee. These reasons are legitimate and non-discriminatory on their face.
The burden would then shift to the complainant to establish that these reasons were a pretext for discrimination. Although Ezell argues on page 9 of her February 27, 2009, brief that, "The ALJ erred in dismissing this case because there was no evidence to establish that the respondent's proffered reason was nondiscriminatory," it is not the respondent's burden to prove it did not discriminate, but instead the complainant's to prove that the respondent did discriminate.
Ezell argues that pretext is demonstrated by the fact that the reasons offered by Molloy were "false," i.e., that they had no reasonable basis in fact, and Molloy did not and could not have actually held them.
The record does not show that Molloy lacked a reasonable basis in fact for having formed such beliefs. For example, the record shows that Molloy had discovered that Ezell had regular meetings with Williams even after he was no longer her supervisor, Ezell left her employment with Northwestern and left Milwaukee in order to build her resume and increase her compensation, and Molloy and Ezell had disagreed as to the promotion of Anderson.
Moreover, even if Molloy's beliefs were mistaken, the question of whether an employer's asserted nondiscriminatory reason for the subject action is objectively correct can be considered irrelevant if it appears that the employer genuinely believed it to be true. See, Moncrief v. Gardner Baking, ERD Case No. 9020321 (LIRC July 1, 1992); Turner v. Manifold Services, Inc., ERD Case No. 200000679 (LIRC Jan. 31, 2002); Ford v. Lynn's Hallmark, Inc., ERD Case No. CR200301184 (LIRC June 27, 2005) The trier of fact need only determine that the employer in good faith believed in those reasons and that the asserted reasons for the action were not a mere pretext for discrimination. See, Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996). The record here does not show that Molloy did not actually hold these beliefs, and, as discussed above, Ezell's offers of proof were not sufficiently specific to merit reliance upon them to support a different conclusion.
In addition, the record does not establish a connection between the opinions/perceptions expressed by Molloy on July 2 and Ezell's race/color. In fact, the evidence suggests otherwise. For example, after Molloy became Ezell's supervisor, she promoted her within the year. As a further example, when Molloy learned of Ezell's intent to resign, Molloy asked Ezell what she could do to induce her to stay. The logical inference from these circumstances is that Ezell's decision to leave her employment with the respondent, or information Molloy acquired after Ezell left, not Ezell's race/color, led Molloy to form the belief, as she expressed at lunch, that Ezell was no longer a good fit for a Senior Risk Management Consultant position at Northwestern Mutual.
Ezell failed to demonstrate pretext, and failed to sustain her burden to prove that probable cause exists to believe that she was discriminated against on the basis of race/color.
cc:
Attorney Alan C. Olson
Attorney Judith A. Williams-Killackey
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