SHERRIE LIDDELL, Complainant

KLEEN TEST PRODUCTS INC, 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 of fact and conclusions of law in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed April 11, 2014
liddesh_rsd . doc : 107 :

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

The complainant's petition for commission review included a general statement of disagreement with the ALJ's determination that no probable cause existed to believe that the respondent discriminated against the complainant on the basis of sex or race, with respect to terms and conditions of employment, compensation, promotion and termination from employment. The petition also raised two specific objections-that the complainant did not have legal representation at the hearing, and that all the facts were not presented at the hearing. After a synopsis of the hearing was prepared, the commission established a briefing schedule giving both parties a single deadline for submitting initial briefs, and a second deadline for reply briefs. The respondent filed an initial brief responding to the two specific objections, and making a brief comment that the record supported the ALJ's conclusions of no probable cause.

The complainant hired an attorney, who requested an extension of time to submit an initial brief. The commission granted the request, and the complainant, through her attorney, filed an initial brief confined to one issue-whether there was probable cause to believe the respondent discriminated against the complainant in terms and conditions of employment based on race or sex, with respect to the respondent's refusal to allow the complainant to work on test method validation procedures. The brief made no reference at all to the two specific objections in the complainant's petition. In reply, the respondent argued that the commission should consider the complainant to have abandoned the two specific objections stated in her petition, and should ignore the new specific issue that the complainant raised in her brief. The complainant filed a reply brief arguing that her argument regarding discrimination in terms and conditions should be considered, but making no argument countering the respondent's position that she had abandoned the specific objections in her petition.

With respect to the two specific objections in the complainant's petition for review-that the complainant did not have legal counsel and that not all the facts were presented at hearing-the commission agrees with the respondent and has treated those arguments as abandoned, especially since the complainant made no response to the respondent's assertion that she had abandoned them. Hentges v. State of WI, Dept of Regulation and Licensing, ERD Case No. 9203077 (LIRC Jan. 12, 1996), citing Reiman Assoc. v. R/A Advertising, 102 Wis.2d 305, 306 n.1, 306 N. W. 2d 292 (Ct. App.); Becker v. Automatic Garage Door Co., 156 Wis.2d 409, 419, 456 N.W.2d 888 (Ct. App. 1990).

The commission, however, will consider the complainant's argument that she has shown probable cause to believe that the respondent discriminated against her on the basis of sex and race in one aspect of the terms and conditions of her employment-the respondent's alleged failure to allow her to work on test method validation procedures.

The commission has noted:

Although the filing of a petition for review by either party vests the commission with jurisdiction to review the entire decision, the commission will generally not exercise jurisdiction over issues that are neither expressly nor implicitly raised in a petition for review. Dude v. Thompson, (LIRC, Nov.16, 1990).

Nunn v. Dollar General, ERD Case No. CR200402731 (LIRC Mar. 14, 2008). In Nunn, however, the parties' petitions clearly confined themselves to the issue of remedy, and did not explicitly or implicitly question the ALJ's decision on the merits. Likewise, in Dude v. Thompson, ERD Case No. 8951523 (LIRC Nov. 16, 1990), the petition for review was confined to remedy, so the commission restricted itself to reviewing only that issue. Here, however, the complainant's petition questioned the merits of the ALJ's no probable cause determinations, and although the petition contained no specific arguments on that point, the complainant's brief did. Under these circumstances the commission considers it appropriate to address the complainant's argument regarding the probable cause determination raised in the complainant's brief.
 

Test method validation procedures

The only issue raised by the complainant was whether the complainant showed probable cause to believe the respondent discriminated on the basis of race or sex by failing to permit the complainant to perform test method validation procedures.

In the course of the complainant's testimony, in response to the ALJ's question as to how the complainant believed she was treated adversely because of her sex or race, the complainant referred to being denied the opportunity to work on test method validation procedures. Although there was no clear description of this task in the record, it appears to have been a process of making sure chemical testing methods for products were valid. The complainant characterized this task as an additional responsibility that she sought permission to perform, that would have helped advance her employment. The complainant testified without dispute that she sent an e-mail to her supervisor asking for permission to perform this responsibility and did not get a reply. She also testified that a number of other chemists and some lab technicians performed this responsibility, including several male employees and several white employees.

The complainant argued that this evidence was sufficient to make a prima facie case of discrimination, which generally requires a showing that she was a member of a protected class, and that she was treated less favorably than similarly situated employees not in the protected class. Gruebling v. Wisconsin Bell, ERD Case No. CR200500835 (LIRC Aug. 26, 2011); Leonard v. County of Milwaukee, ERD Case No. 200500290 (LIRC June 15, 2007).

While recognizing the value of case law decisions setting out formulas for establishing a prima facie case, the commission has noted that those formulas are not necessarily determinative of a prima facie case, but serve as a framework for consideration of whether the complainant has demonstrated that an adverse employment action occurred under circumstances giving rise to an inference of unlawful discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Historically, the commission has followed this principle in analyzing a prima facie case without strict adherence to a formulaic methodology. For example, the prima facie case methodology set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973) was never intended to be mechanized or ritualistic but rather merely a sensible way to evaluate the evidence in light of common experience. Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996), citing Gentilli v. Badger Coaches (LIRC,07/12/90), aff'd sub nom. Gentilli v. LIRC, (Dane Co. Cir. Ct. 01/15/91).

The complainant's evidence in support of an inference of discrimination is not strong. First, there is no evidence that the respondent actually denied the complainant's request to do test method validation. There is only evidence that the complainant made a single request that went unanswered, and no evidence of a follow-up by the complainant or a response by the respondent. Second, there was no evidence that the respondent negatively evaluated the complainant because she did not perform test method validation, so the extent to which her employment was adversely affected was unclear. Third, although the complainant asserted that other employees performed test method validation, she provided little evidence that they were similarly situated to her, beyond having similar job titles. A similarly situated employee is one who is directly comparable to the complainant in all material respects. Gunty v. City of Waukesha, ERD Case No. 200401540 (LIRC Mar. 31, 2010). The complainant's evidence is not detailed enough to warrant a conclusion that employees who did test method validation and were not in her protected classes were similarly situated.

Even setting these weaknesses aside, there are the facts that at least one other woman was allowed to do test method validation, and that one Jamaican American, whose color was described as brown, was allowed to do test method validation. The fact that others within a complainant's protected category were treated favorably can be weighed against an inference of discrimination. Monpas v. MRS Machining Co., Inc., ERD Case No. CR200802653 (LIRC, Apr. 8, 2013). The commission in Monpas quoted the following from Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 524 (3rd Cir. 2003): "While not conclusive, an employer's favorable treatment of other members of a protected class can create an inference that the employer lacks discriminatory intent."

Considering the totality of the evidence presented, the commission concludes that it does not support an inference to a probable-cause standard of proof that either sex or race was a motivating factor in the respondent's not assigning the complainant to do test method validation procedures. The commission therefore affirms the decision of the ALJ.

cc:
Attorney Danielle Bailey
Attorney David J. B. Froiland

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