CAROL WALLIS, Complainant
ST PAUL'S EVANGELICAL LUTHERAN CHURCH & SCHOOL, 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:
1. In the second sentence of paragraph number 4 of the FINDINGS OF FACT, the name "Cole Braun" is deleted and the name "Terry Otto" is substituted therefor.
2. In the first sentence of paragraph number 6 of the FINDINGS OF FACT, the months "February" and "March" are deleted and the months "April" and "May" are substituted therefor.
3. In the eighth line of paragraph number 7 of the FINDINGS OF FACT, the letters "B.S" are deleted and the letters "B.A." are substituted therefor.
4. The last sentence in paragraph number 8 of the FINDINGS OF FACT is deleted.
5. The last sentence in paragraph number 10 of the FINDINGS OF FACT is deleted.
6. In paragraph number 11 of the FINDINGS OF FACT, the second and third sentences are deleted and the following sentences are substituted therefor:
"As of June 1, 2004, working with a reduced budget, the goal of the Board of Education was to achieve a targeted budget of $786,000. Subsequently, however, the Board learned that it had to reduce its budget even further. Around this same time the Board also learned that John Dahm, who had initially agreed to go to 75% time, would not go to 75% time. Since Dahm was a "called teacher" and the Board did not have cause to change his call, Dahm's pay could not be involuntarily reduced to 75% by the Board. However, in view of the further reduction of the Board's budget, whether or not Dahm had agreed to go to 75% time, the Board had to make a reduction in staff. The Board therefore decided to look at peripheral subjects such as music, computers, art and physical education for things to eliminate."
7. Paragraph number 12 of the FINDINGS OF FACT is deleted and the following paragraph substituted therefor:
"The Board met in closed session on June 8, 2004. The Board decided that the best course of action to make its budget work was to eliminate Wallis's music teaching position and redirect her duties to other staff that had this experience and talent. Motions were made and passed to eliminate the position of Day School Music Teacher, to distribute the music curriculum amongst other teachers and to not renew Wallis's contract for the 2004-2005 school year."
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed August 25, 2010
wallica . rmd : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
This case arises from a discrimination complaint filed by Carol Wallis with the Equal Rights Division in which she alleged that the respondent, St. Paul's Evangelical Lutheran Church & School (St. Paul's), discharged her on the basis of her sex, age and a perceived disability in violation of the Wisconsin Fair Employment Act. An administrative law judge determined that there was not probable cause to believe that St. Paul's had violated the Act as alleged by Wallis. The commission agrees.
Beginning in the 2001-2002 school year Wallis worked for St. Paul's in Oconomowoc, Wisconsin as a contracted music teacher for grades pre-kindergarten through eight and she also provided assistance in other areas. Wallis had previously worked for the respondent from 1977 to 1991 as a regular elementary school teacher. At one point during this period she taught first grade and at another point she taught third grade. Wallis is a female. Wallis's date of birth is March 1, 1949. She was age 55 in June 2004.
Either just prior to or during the first half of the 2003-2004 school year one teacher (Gwen Nicholson) announced that she was retiring after the 2003-2004 school year and during the second half of the school year another teacher (Donna Laughlin) accepted a teaching position in another state, resulting in the need for St. Paul's to hire two teachers for the 2004-2005 school year.
Wallis, aware that the school's financial situation might not be able to support a music teacher position much longer, in October 2003 and again in January 2004 submitted letters to St. Paul's Board of Education indicating that she wanted to be considered for hire into a regular teaching position.
During the 2003-2004 school year St. Paul's employed Frederick Boldt as an interim principal (part time). Boldt initially shared the duties as principal with Terry Otto, and then when Otto passed away he shared principal duties with acting assistant principal, Sandra Bollinger. Boldt had previously served as the principal from July 1974 until the summer of 1995, when he began employment as a teacher for St. Paul's.
When interviewed by the Board of Education in January 2004 Boldt recommended that the replacement for Nicholson not be filled from within. Boldt testified that St. Paul's being a Christian church, music was a very important facet of its ministry and that Wallis was an excellent music person to help lead children's choirs. Boldt informed the Board that if there was any opportunity for Wallis to stay as the music teacher, he strongly recommended that and that she not be put in a homeroom, i.e., a regular classroom. Wallis was a specialty teacher. Boldt testified that he recommended against putting Wallis in a classroom because specialty areas, such as music, were important parts of St. Paul's ministry and it was very difficult to find a good music person.
Boldt testified that he also made a recommendation to the Board that it was important to have someone replace Laughlin who had the computer skills that Laughlin had.
Boldt further testified that after he left administration and went back to teaching, athletic leadership had been given to volunteer parents in the congregation and that he felt that it was important to get an athletic director back on staff. Boldt testified that most of the volunteers had employment outside of school, which limited their availability to do all aspects of the Athletic Director's job, and as a result there was not always someone available to make last-minute decisions when needed, such as cancelling a game because of the weather, notifying the other school and calling parents.
Cole Braun served as Director of St. Paul's Board of Education during the relevant time herein. Braun's two-year service as the director ended in June 2005. Braun had previously served as St. Paul's principal for a period of time.
The Board conducts interviews with incumbent teachers each year during the winter to determine what can be done to improve and/or help the school environment.
Braun submitted his Chairperson Report to the Board dated February 10, 2004, summarizing the interviews of the incumbent teachers. Included in the report were views that the athletic director needs to be someone in the school building, and worry about an all-female middle school faculty. Braun testified that when he raised the matter of the all-female middle school faculty with the Board that the Board was worried about this because they recognized the benefits of having a male influence and thought that having male teachers in the school would be a good role model.
By April 2004, Chris Nelson had agreed to become St. Paul's new principal for the 2004-2005 school year and was invited by the Board to attend its meetings.
The minutes of the April 20, 2004 Board meeting show that Boldt and Nelson felt that a male would be an excellent addition to the current mix of teachers at the respondent. Boldt testified that this was his opinion because the remaining two male teachers at St. Paul's, himself and John Dahm, were retiring in 2006 and there would be no male teachers on the staff for the 2006-2007 school year.
Braun testified that the Board concurred with Boldt.
The April 20, 2004 Board minutes also show that the Board of Education scheduled a meeting for Monday, April 26 to "outline needs for the new teaching position(s)" and that "A call committee would be established to recommend candidates based on these criteria."
Braun testified that the Call Committee was established in late April or early May 2004. Braun testified that by this time the respondent knew that it would need to fill two teaching positions. Braun testified that the first time the Call Committee met the Call Committee established what it was they were looking for. Braun testified that he wrote on the chalk board the characteristics, qualifications and expertise they wanted to see in the applicants and that it was someone strong in computers, including developing and managing a computer curriculum, and that it was also noted that another criterion was that the athletic director position needed to be filled by someone on staff.
Scott Allen, who was on both the Board of Education and the Call Committee, testified that they were looking for someone with the credentials that could take an assistant principal role and for someone who had recent, more extensive computer training, and was pretty recent out of school because of budget concerns. Allen further testified that the school had had difficulty for some time recruiting and retaining a principal.
Sandra Bollinger, the acting assistant principal who shared the principal's duties with Boldt during part of the 2003-2004 school year and was on the Call Committee, testified that one hiring criterion was that the school needed an assistant principal, which meant the individual would have to have a master's degree in administration, that another criterion was that an athletic director was needed and that a third criterion was that someone was needed who could expand on the school's computer curriculum and knew software and hardware well enough to teach this.
The minutes of the May 11, 2004 Board meeting (Exhibit C#17) show that new principal Nelson also wanted the Athletic Director position to be filled by a staff member rather than a volunteer.
Braun testified that around the middle of May the Board of Stewardship requested a first draft of the budget. With respect to the budget, paragraph 6e of the May 11, 2004 Board of Education minutes states: "All boards, including the BOE, have been asked to review their budget and recommend possible cuts. The BOE will review its budget after it has been determined whether one or two teachers will be hired for the 2004-2005 school year." Braun testified that the Board of Education had submitted a budget request that was virtually identical to the previous year's budget. The Board's budget for the previous year was $865,124. (Exhibit R#1.)
In May 2004 the Call Committee reviewed the resumes of forty some candidates, including Wallis's. The number of potential candidates was first reduced to ten and then eight. Wallis's application for a teaching position was rejected by the Call Committee. By May 24, 2004, the Call Committee had narrowed the number of candidates to four that the committee wanted to interview. Two were male: Benjamin Mueller and William Sitas. Two were female: Sherry Fleischfresser and Katherine Swem. However, Sitas decided to withdraw from further consideration. The interviews took place during the period of May 26 through May 28, 2004.
Apparently, some time before June 1, 2004, the Call Committee recommended that the Board offer contracts to Fleischfresser and Mueller. Bollinger testified that the Call Committee decided this on the Thursday before June 1, 2004, i.e., May 28, 2004.
Braun testified that around June 1, 2004, the Board of Stewardship told the Board of Education that its budget was too high and had to be reduced.
After the Call Committee's recommendation, on June 1, 2004, Braun sent an email to the Board members (Exhibit C#31), in which he presented as the Board's recommendation to the Parish Planning Council (PPC), that the respondent contract two teachers for the 2004-2005 school year. Specifically, that the Board offer Fleischfresser the positions of third grade teacher and assistant principal and offer Mueller the positions of physical education teacher and computer teacher, and to help with English and be the athletic director. The Board accepted the Call Committee's recommendation. Upon approval by the PPC, the hiring of the individual is voted on by the voters in the congregation.
In the email Braun sent to Board members on June 1, 2004 (Exhibit C#31), Braun stated that moves that allowed the Board to make the offers to Fleischfresser and Mueller, and to still attain its targeted budget of $786,000.00, were that John Dahm, Jill George, Wallis and Boldt would be at 75% time.
Braun testified that because Boldt was already at 75% the Board determined that the most creative and effective way of reducing its budget was to ask some other teachers to reduce their hours to 75% in order to cover the amount needed to be cut from the budget without cutting anyone's full position.
Scott Allen also testified that the Board received budgeting information that it had to make cuts based on the funds that were available to the Board and that the Board decided to ask several individuals to reduce their time.
Fleischfresser held a B.A. Degree in Lutheran Elementary Education, an M.S. Degree in Education (Administration) and was teaching third grade at St. John's Lutheran School. Fleischfresser was also the wife of one of the respondent's pastors who had been deployed to Afghanistan in February 2004.
Mueller was a December 2003 graduate from The Franciscan University with a B.A. Degree in Elementary Education (K-6), and endorsements in English/Language Arts (K-6) and Coaching. Mueller's resume expressed an interest in coaching.
Braun testified that as of June 1, 2004, the Board of Education believed Wallis would be a music teacher in the upcoming 2004-2005 school year.
Braun testified that it was not until after June 1, 2004, that the Board learned that additional budget cuts would be required. Allen also testified that the Board was later informed it would have to reduce its budget even further and that the Board would need to make recommendations potentially eliminating extracurricular or non-core teaching classes.
Braun testified that his June 1 email (Exhibit C#31) was what the Board intended to do but that it did not happen that way. Braun testified that it was John Dahm, Jill George, Carol Wallis and Jenny Braun (Cole's wife) who were asked to be reduced to 75% time. Jill George, Jenny Braun and Carol Wallis were all contract employees.
Apparently, Braun spoke to the four teachers on or about June 4. Braun testified that Dahm stated that this would be acceptable and that neither George nor Braun was happy about it but would do what they would have to do. Braun testified that Wallis was not happy about it either and commented that if she had to go to 75% she was going to have to find somewhere else to work. Wallis testified that she told Braun she would have to talk to her husband about whether they could find a way to compensate for a lower income. Braun testified that four or five days later, Dahm came back and said that he would not go to 75%.
Braun testified that because Dahm was a "called teacher" and the Board did not have cause to change his call, Dahm's pay could not be involuntarily reduced to 75%. As noted above, Braun and Allen's testimony also indicates that it was after June 1, 2004, when the Board learned that it would have to reduce its budget even further and to make recommendations potentially eliminating extracurricular or non-core teaching classes. Braun testified that the Board therefore decided to look at peripheral subjects such as music, computers, art and physical education for things to eliminate. Braun testified that the Board decided that the best course of action to make its budget work was to eliminate Wallis's music teaching position and redirect her duties to other staff that had this experience and talent.
Allen testified that the Board ultimately determined that the music teaching position would be eliminated because the respondent had other teachers who could fill that need without employing a specific music teacher; that the decision to eliminate the music teacher position occurred after the decision was made to offer contracts to Fleischfresser and Mueller.
The minutes of the June 8, 2004 Board meeting show that motions were made and passed to eliminate the position of Day School Music Teacher and to distribute the music curriculum amongst the teachers, to transfer the responsibilities for the Day School Choirs to the Parish Music Director and to not renew Wallis's contract for the upcoming school year.
The following was included in Braun's June 8, 2004 Chairperson's Report (Exhibit C#33) to the Board:
"1. If the budget is approved on June 15th we will be formally offering two individuals positions at St. Paul's. Their primary areas of responsibilities will be in 2nd and 4th grades, computers, athletics and as Assistant principal.
2. The budget as resubmitted by the director of the board of education is below the requested budget from stewardship. ($786,000 in total) ..."
Exhibit R#1 shows that the Board of Education's budget for the 2003-2004 school year was $865,124 and that the Board's budget request that was eventually submitted to the congregation for a vote for the 2004-2005 school year was $777,541, a reduction of $87,583.
On June 10, 2004, Braun met with Wallis and gave her a letter notifying her that the position of Day School Music Teacher had been eliminated. The letter stated, in part, that "The elimination of this position was necessary due to the financial condition of the congregation. The budget for the 2004-05 year does not allow us to continue the Day School Music Teacher position."
Wallis testified that she asked Braun about the open teaching positions and that Braun said they were no longer an option. Wallis testified that Braun said one of the people hired was going to fill a primary position and possible administration, and that they wanted to fill the other position with a younger person, preferably a man.
On June 11, 2004, Braun met with the teaching staff to inform the staff about the budget issues and the elimination of Wallis's position.
Wallis testified that she was not invited to attend the staff meeting on June 11, but attended anyway. Wallis testified that at this meeting Braun stated that the respondent did not want her in one of the regular teaching positions because it preferred to have someone younger and preferred that it be a man. Wallis also testified that at this meeting questions were raised as to why she could not be given one of the two teaching positions. Wallis testified that Braun mentioned for the first time about something being in her personnel file, but would not discuss it, and said that that was why she was not considered for one of the teaching positions.
Wallis testified that after the June 11 meeting she looked at her personnel file and there was nothing negative in there.
Braun testified that the teaching staff already knew about the elimination of Wallis's position and that the meeting became very emotional very quickly; that there were multiple questions before he could get any response out. Braun testified that with respect to the question if they were going to hire a male he responded that the respondent was interested in looking at hiring a male teacher if he met all the necessary criteria because it was looking to the near future when the respondent would have no male teacher.
Braun testified that when asked directly why Wallis's position was being eliminated and why Wallis was not going to be offered one of the two teaching positions, he responded that the position was being eliminated because they had been told by the Board of Stewardship that the budget was too high and that they needed to take out "X" amount of dollars; that the best way to do that, considering that the respondent had other music talent on the staff, was to redistribute those duties. Braun testified that Dahm asked what in Wallis's personnel file was so bad that she should not be offered a position. Braun testified that he could not believe the question was asked that way, so he responded saying, "Are you asking me to open up a personnel file that is confidential and personnel? I can't do that."
Braun testified that they continued to ask about Wallis's file. Braun denies ever saying that there was anything bad in Wallis's personnel file.
On June 15, 2004, there was an informational meeting regarding the budget which was held with the entire congregation. Wallis testified that questions were raised about why she was not hired to fill one of the open teaching positions, and that it again came up that something in her personnel file prevented her hire.
Braun testified that the budget was not approved because two distinct issues remained outstanding: (1) concern over the music teaching position; and (2) the budget was too high.
Braun testified that the elimination of the music position was discussed with the entire congregation and that there were two attempts to keep the music teacher position in the budget. One was a congregation member's motion that Wallis remain in the music position and get it put back in the budget, but this motion was not allowed to be heard because such a motion could not be made at this meeting. The second was a motion by Braun to increase the budget, as presented, by the sum of $10,000 in order to avoid elimination of Wallis's music teaching position, which was seconded, but which was ultimately voted down.
Allen testified that the congregation ultimately voted to pass the budget, but not at the first meeting. Allen testified that at the meetings there was a small group of people who were very vocal about their unwillingness to approve the budget if Wallis's position as music teacher was eliminated, and another group of people who would not approve an increase in the budget and pushed for a balanced budget. Apparently the congregation ultimately voted to pass the budget on July 17, 2004. (Exhibit R#1.)
DISCUSSION
Wallis requests that the commission reverse the decision of the ALJ and find that there is probable cause to believe the respondent "engaged in illegal discrimination and terminated her employment based on her sex and age." Wallis argues that despite the direct evidence of sex and age discrimination, the ALJ dismissed her case at the end of the hearing and failed to address the direct evidence of sex and age discrimination in his decision.
As stated by the court in Cowan v. Glenbrook Security Services, Inc., 123 F.3d 438 (7th Cir. 1997):
Direct evidence is "evidence which if believed by the trier of fact, will prove the particular fact in question without reliance on inference or presumption." Plair [v. E.J. Brach & Sons, Inc.], 105 F.3d [343] at 347 [7th Cir. 1997] (internal quotation omitted). This evidence "must not only speak directly to the issue of intent, it must also relate to the specific employment decision in question." Randle v. LaSalle Telecomm., Inc., 876 F.2d 563, 569 (7th Cir. 1989); see also McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686 (7th Cir. 1991).
Wallis argues that she presented five witnesses, not counting herself, who testified that Braun stated in public that St. Paul's wanted to hire someone young, or male, or both. For example, referencing her testimony, Wallis asserts that when Braun met with her "to inform her that her position was eliminated, he also told her that she would not be receiving one of the open homeroom teacher positions because the Board wanted to fill the position with a younger person, preferably a man." Wallis also cites the testimony and written statements provided by John Dahm and Barbara Allwardt indicating that the Board wanted to hire a young male, Nicholson's testimony that she heard that St. Paul's was looking for a male teacher, Joan Emery's testimony that at the all-congregation meeting "[i]t was discussed as to the need for hiring a male teacher" and her written statement that at this meeting "A retiring teacher stated that at a recent faculty meeting that the staff needed 'a young, male teacher' that could be athletic director as well", and Sherie Smith's testimony that at the informational meeting on June 15, 2004, the people were told "the school needed a young male."
As noted by the Cowan case cited above, however, direct evidence "must not only speak directly to the issue of intent, it must also relate to the specific employment decision in question." Cowan, 123 F.3d at 443. (Emphasis added.)
The specific unlawful employment decision alleged by Wallis in her discrimination complaint is that the respondent "discharged her because she is older and female." (1)
Wallis has not presented evidence which speaks directly to the respondent's intent to discharge her because of her age or because she is female.
Wallis attempts to accomplish this, however, by claiming that the only way the respondent could hire two new teachers, one of which was a young male, was for the respondent to discharge her. Citing Braun's June 1, 2004 email (Exhibit C#31), Wallis asserts that by June 1, 2004, the recommendation from the Board of Education was to hire Sheri Fleischfresser and Ben Mueller, and reduce John Dahm, Jill George, Carol Wallis and Fred Boldt to 75% time-in essence cutting one teacher position in order to have the funds to hire two teachers instead of just one. Wallis then argues that "When some of those teachers refused, as they had the right to do, the School Board decided to eliminate Wallis's position and not renew her contract."
Wallis misstates the sequence of events regarding the funding available to the Board for its 2004-2005 school year budget and the action taken by the Board. Initially, the Board had submitted a budget request of $865,124, which was virtually identical to its budget for the 2003-2004 school year. Braun testified that around June 1, 2004, the Board of Stewardship told the Board of Education that its budget was too high and had to be reduced. Braun testified that at the time he wrote Exhibit C#31 on June 1 the Board was making its budget tighter, not eliminating a position. At that time, as indicated in Exhibit C#31, the Board's proposal was to reduce several employees to 75% time in an effort for it to "still attain its targeted budget of $786,000." Allen testified that the Board decided to ask several individuals to reduce their time because the Board received budgeting information that it had to make cuts based on the funds that were available to the Board.
Braun testified that as of June 1, the Board believed that Wallis would be a music teacher for the 2004-2005 school year. While the Board did subsequently learn that Dahm had decided not to go to 75% time, the Board also subsequently learned that it had to reduce its budget even further.
Braun testified that it was after June 1, 2004, but sometime before June 15, 2004, that it was determined that additional budget cuts would be required and that a position would have to be eliminated. Like Braun, Allen testified that the Board was later informed that the Board would have to reduce its budget even further. In view of the required further reduction in the Board's budget, whether or not Dahm had agreed to go to 75% time, the further reduction in the Board's budget required it to make a reduction in its staff. As previously noted, in Exhibit C#31 what was seeking to be done as of June 1, 2004, was a move that allowed the Board to "still attain [its] targeted budget of $786,000." As shown in Exhibit R#1, the Board's budget request that was eventually voted on by the congregation on June 17, 2004, was $777,541. This was a reduction of $87,583 from the Board's budget for the 2003-2004 school year.
Allen testified that the Board determined that the music teaching position would be eliminated because the respondent had other teachers who could fill that need without employing a specific music teacher; that the decision to eliminate the music teacher position occurred after the decision was made to offer contracts to Fleischfresser and Mueller. Allen testified that the Board's decision to offer contracts to Fleischfresser and Mueller occurred prior to June 8, 2004. Further, referencing Braun's June 8, 2004 Chairperson's Report (Exhibit C#33) to the Board, wherein Braun states that "If the budget is approved on June 15th we will be formally offering two individuals positions at St. Paul's", Allen testified that the approval on June 15th was the formality when it goes to the congregation for approval based on the budget that's approved.
The record fails to show evidence which speaks directly to an intent on the part of the respondent to discharge Wallis because of her age or because she is female.
Wallis further argues, however, that she presented indirect evidence that St. Paul's discriminated against her on the basis of her sex and age. Wallis argues that she presented evidence regarding the failure to hire her for a regular teacher position as a similar discriminatory act by St. Paul's to show that it terminated her based on her sex and age. She notes that complainants in employment discrimination cases may show that it is likely that the respondent engaged in illegal discrimination by showing that the respondent has engaged in other illegal discrimination, either against the complainant or against other employees who belong to protected categories, citing Becker v. ARCO Chemical Co., 207 F.3d 176 n.8 (3rd Cir. 2000).
Wallis argues that St. Paul's claim that she did not meet St. Paul's needs for teachers with administrative or computer skills and that St. Paul's hired Sheri Fleischfresser because she had administrative skills and Ben Mueller because of his computer skills, are pretexts for discrimination.
With respect to Fleischfresser, Wallis asserts that while not necessarily illegal St. Paul's claim that she was hired to fill the role of assistant principal is pretextual. Wallis argues that Fleischfresser was hired because she is the wife of a pastor of St. Paul's church, who had been called to service in Afghanistan as a chaplain.
Fleischfresser's husband usually drove their children to school at St. Paul's. Fleischfresser was a teacher in Mayville, north of Oconomowoc. Wallis argues that Boldt asked Fleischfresser to apply for a position prior to her husband's departure in February 2004 when Boldt learned that Fleischfresser was anticipating difficulties getting her children to school, but at that time he had no knowledge of Fleischfresser's administrative and training skills. Wallis argues that it is therefore logical to conclude that Boldt thought that having Fleischfresser teach at St. Paul's would be a good way to assist the family of the pastor.
With the above as her premise, Wallis argues that it is also logical to conclude that the Call Committee thought that having Fleischfresser teach at St. Paul's would be a good way to assist the family of the pastor, as well. Wallis argues that Fleischfresser applied for a teacher position by letter dated February 1, 2004, and that the "board" did not meet to set its criteria for what skills it wanted in the teacher hires until "April 24, 2004", after it had received Fleischfresser's application for employment. Further, Wallis argues that the Call Committee did not advertise for a teacher with administrative skills and that Fleischer indicated in her interview that she was not interested in taking on administrative duties.
Wallis's arguments fail. First, although it would not necessarily have been unlawful sex or age discrimination had the respondent hired Fleischfresser to assist her family situation, Wallis has not presented a scintilla of evidence that the Call Committee thought that having Fleischfresser teach for the respondent would be a good way to assist the Fleischfresser family. No testimony or evidence exists to establish this claim. What is established by the record, however, is that the respondent was in need of someone capable of handling the administrative duties for the respondent. Allen testified that Fleischfresser's administrative qualifications were so attractive because the school had had difficulty for some time recruiting and retaining a principal. Indeed, even Boldt acknowledged that as of 2003 the respondent had been "in the process over the last several years of trying to find a full-time administrator who would be there for a longer term than some previous administrators." Furthermore, the record does provide evidence that administrative qualifications was one of the criteria considered in determining who would be hired for the 2004-2005 school year. Specifically, Sandra Bollinger, who at the time was acting assistant principal and on the Call Committee, testified that one of the hiring criteria was someone qualified to be an assistant principal. Also, Board member and Call Committee member Allen testified that the criteria in looking for candidates included someone with the credentials that could take an assistant principal role.
Second, it not surprising that the Call Committee did not set its criteria for hiring until April 26, 2004, after Fleischfresser's February 1, 2004 application. The record shows that it was not until months after February 1 that the Board even established a Call Committee to set its hiring criteria for the teaching positions.
Third, the fact that a particular characteristic is not mentioned in a job announcement as being desirable does not mean that the employer's subsequent reliance on that characteristic as being important was pretextual. Walstrom v. Wisconsin Dairy Herd Improvement Cooperative (LIRC, 11/29/90). See also, Phillips v. Green Co. Sheriff Dept. (LIRC, 01/16/87).
Further, while Fleischfresser did state during her interview that she was not particularly interested in being "a full-time principal" because she wanted to be a teacher first, Bollinger testified that Fleischfresser did express interest in an assistant principal position.
With respect to Mueller, Wallis asserts that according to Braun the Call Committee had determined the school needed "someone strong in computers, including developing and managing computer curriculum. It had been noted that the athletic director position needed to be filled by someone on staff so that was another criterion for the applicants to fill."
Wallis then argues: "Thus, for the non-administrative teacher position, the most important criteria was supposedly computer skills. Ben Mueller's resume does not indicate that he had any computer skills. C. Ex. 35(D). Yet, he was chosen for an interview." (Bold text emphasis in original.) Wallis argues that Braun's notes of the interviews with the candidates do not indicate that Mueller was asked any information about his skills or abilities with computers; rather it was Fleischfresser who was asked about this. Further, Wallis argues that if the Call Committee really was looking for someone who had computer skills, they might have at least interviewed her, as her resume included information about her training in computers.
In addition, although acknowledging that the athletic director duties had become increasingly important for the respondent and that Mueller's resume notes he was a student athlete for two years and basketball captain for one year, which made him more attractive as a candidate, (2) Wallis argues that St. Paul's attempt to point to Mueller's qualifications for a position as an athletic director as the reason he was hired for a teacher position does not help it, as in doing so St. Paul's has strayed from its normal procedures. Wallis argues that it is well settled law that departures from established practices may evince discriminatory intent, citing Nabozny v. Podlesny, 92 F.3d 446, 455 (7th Cir. 1996) (citing Village of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 267 (1997). Wallis argues that St. Paul's regular practices allowed for the Athletic Committee to identify candidates for the position of Athletic Director, that the Athletic Committee had reaffirmed its responsibility in that regard on February 10, 2004, but still had not accomplished its task by May 11, 2004, and instead Braun claims that by June 1, 2004, the Call Committee had decided to offer Mueller the Athletic Director position in addition to a position as teacher.
Again, Wallis's arguments fail. First of all, with respect to departing from its normal procedures, while it had been the Athletic Committee's responsibility to identify candidates and to present to the Board the most qualified candidate to hire, Bollinger testified that at the direction of the Board, a criterion the Call Committee was asked to consider in finding a teacher was the ability to be the Athletic Director.
Second, the evidence fails to support Wallis's argument that computer skills were the most important criteria for the non-administrative teacher position. As previously noted, Bollinger testified that there were three criteria used to determine who would be hired. Bollinger testified that one hiring criterion was that the school needed an assistant principal, which meant the individual would have to have a master's degree in administration, that another criterion was that an athletic director was needed and that a third criterion was that someone was needed who could expand on the school's computer curriculum and knew software and hardware well enough to teach this. In fact, if anything, the evidence shows that the respondent's need for an athletic director was equal to that of its need for someone with computer skills. Indeed, even Boldt testified that he felt that it was important to get an athletic director back on staff. Boldt testified that after he left his administration position in 1995, the athletic leadership was given to volunteer parents in the congregation. Boldt explained that having volunteers do the athletic director job resulted in there not always being someone available to make last-minute decisions, such as cancelling a game because of the weather, notifying the other school and calling parents. Boldt explained that this was so because most of the volunteers had employment outside of school, thus limiting their availability to do all aspects of the job. Furthermore, Bollinger testified that the duties of Athletic Director included coaching the school's teams that were without coaches and refereeing games for which referees could not be found.
Thus, the increasing importance of having an athletic director on staff, Mueller's athletic abilities, endorsement in coaching, and his expressed interest in coaching made him a desirable candidate for the non-administrative teacher position. Furthermore, while Braun's notes taken of the interviews with the candidates may not indicate that Mueller was asked any information about his skills or abilities with computers, Allen and Bollinger both testified that they learned of Mueller's computer expertise/skills during his interview.
Third, while Wallis's resume included information about her training in computers, her resume shows that her training in computers consisted of a computer class in 1988, which was 15 to 16 years before the mid-2004 application/interview process in this case.
For all of the foregoing stated reasons, the commission has affirmed the administrative law judge's decision finding no probable cause to believe that the respondent violated the WFEA by terminating the complainant's employment because of her age and sex.
cc:
Attorney Brenda Lewison
Attorney Thomas C. Simon
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