State of Wisconsin
Labor and Industry Review Commission
|
|
|
|
Fair Employment Decision[1] |
|
|
Complainant |
|
|
|
|
|
|
|
|
Respondent |
Dated and Mailed: |
|
|
|
|
ERD Case No. CR201201335 |
August 30, 2017 |
|
|
|
The decision of the administrative law judge (copy attached) is affirmed, subject to modifications. Accordingly, the complaint in this matter is dismissed with prejudice.
|
By the Commission: |
|
|
|
|
|
|
Laurie R. McCallum, Chairperson
|
|
|
|
|
|
|
|
|
David B. Falstad, Commissioner |
|
|
|
|
|
|
|
|
|
Procedural Posture
This case is before the commission to consider the complainant’s allegation that the respondent discriminated against her based upon her sex, age, and in retaliation for having filed previous discrimination complaints, in violation of the Wisconsin Fair Employment Act. An administrative law judge for the Equal Rights Division (ERD) of the Department of Workforce Development held a hearing and issued a decision. A timely petition for commission review was filed. The commission has considered the petition and the positions of the parties, and has reviewed the evidence submitted at the hearing. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, subject to the following:
Modifications
1. In paragraph 3 of the administrative law judge’s FINDINGS OF FACT the date “November 11, 1956” is deleted and the date “November 28, 1956” is substituted therefor.
2. The last sentence in paragraph 7 of the administrative law judge’s FINDINGS OF FACT is deleted and the following is substituted therefor:
“Her duties include, but are not limited to, placing orders with vendors in the United States and other countries, paying for invoices (in many different currencies), and communicating with appropriate parties to resolve any problems that arise during the ordering and receiving process.”
3. In paragraph 7 of the administrative law judge’s FINDINGS OF FACT the phrase “more than 50%” is deleted and the phrase “at least 50%” is substituted therefor.
4. In paragraph 16 of the administrative law judge’s FINDINGS OF FACT the name “Penero” is deleted and the name “Piñero” is substituted therefor.
5. In the second sentence of paragraph 18 of the administrative law judge’s FINDINGS OF FACT the date “February 8, 2016” is deleted, and the date “January 20, 2011” is substituted therefor.
6. Paragraph 20 of the administrative law judge’s FINDINGS OF FACT is deleted and the following is substituted therefor:
“OSER classifies employees in the specification where the majority (more than 50%) of their duties lie.”
7. In paragraphs 25-28 of the administrative law judge’s FINDINGS OF FACT the name “Berezine” is deleted and the name “Berezin” is substituted therefor.
8. In paragraphs 29 and 44 of the administrative law judge’s FINDINGS OF FACT the name “Innoway-Ronnie” is deleted and the name “Inoway-Ronnie” is substituted therefor.
9. The following sentence is appended to the end of paragraph 33 of the administrative law judge’s FINDINGS OF FACT:
“Nor is it clear that Graff-Schultz understood this to be a complaint of discrimination.”
10. In paragraph 44 of the administrative law judge’s FINDINGS OF FACT the name “Frazer” is deleted and the name “Frazier” is substituted therefor.
11. Paragraphs 51 and 52 of the administrative law judge’s FINDINGS OF FACT are deleted (and the remaining paragraphs renumbered accordingly), and the following paragraph is substituted therefor:
“The complainant maintained that Byrne began issuing letters of expectation to, and otherwise harassing, the majority of the employees in the unit, including herself, Linying Wu, Jackie Zook, Jeff Lanphear, Lois Milton and Carol Schlatter.”
12. In the last three paragraphs on page 13 and in the third paragraph on page 14 of the administrative law judge’s Decision (in the Memorandum Opinion), the name “Jeff Lanphear” is deleted and the name “John Berezin” is substituted therefor.
13. In the third paragraph on page 14 of the administrative law judge’s Decision (in the Memorandum Opinion) the name “Lingying Wu” is deleted and the name “Linying Wu” is substituted therefor.
Reallocation Decision
In her petition for commission review the complainant argues that the administrative law judge mischaracterized her complaint by stating that the respondent’s denial of her request to have her position reclassified from a paraprofessional to a professional position and OSER’s decision to reallocate her position to a paraprofessional title were two independent transactions. The complainant maintains that her allegation is that the respondent discriminated against her both by refusing to reallocate and to reclassify her position. However, while the complainant has devoted much of her petition to issues relating to reallocation, her complaint was focused primarily on reclassification and contained only a passing reference to the reallocation process. Moreover, the evidence presented at the hearing does not support a conclusion that the respondent was responsible for the reallocation decision. Nancy Graff-Schultz, the Associate Director for Business Administration in the General Library System (GLS), testified that the Office of State Employment Relations (OSER) makes the decision about how job titles are changed or altered as a result of a survey it performs. While in her petition the complainant insists that reallocation has been delegated to the respondent since 1996, she did not present any evidence to support that assertion at the hearing. To the contrary, even the complainant’s own testimony and that of her witness, Linying Wu, indicates that OSER was responsible for the reallocation decision. The complainant testified that the reallocation process was initiated by OSER and was separate from the reclassification process, while Ms. Wu testified that OSER was tasked with updating the LSA classifications for the respondent, and elaborated that “the OSER reallocation survey” was one way she thought she could address the problem of her classification.
In her petition the complainant also repeatedly references her “Motion for Perjury,” filed with the administrative law judge on March 23, 2015, in which the complainant asserted that Ms. Graff-Schultz lied under oath when she attributed the reallocation decision to OSER alone, and provided evidence purportedly indicating that both reallocation and reclassification have been delegated to UW-Madison by OSER for many years. The complainant’s arguments with respect to her motion are without merit. The administrative law judge denied the complainant’s motion in a letter dated April 1, 2015, in which she correctly noted that she had no jurisdiction over the complainant’s allegation that a witness committed perjury. See, Bedynek-Stumm v. Department of Administration, ERD Case No. CR200303298 (LIRC Feb. 8, 2008)(a claim that a person has committed perjury concerns a criminal matter and, consequently, is a matter over which neither the ERD nor the commission has any authority). The complainant’s opportunity to challenge the credibility of a witness at a proceeding before the ERD is not through a “Motion for Perjury” filed after the hearing, but at the hearing itself. The commission’s review of the record indicates that the complainant was given an opportunity to cross-examine Ms. Graff-Schultz at the hearing and to present evidence establishing that assertions made by Ms. Graff-Schultz were inaccurate or untruthful, if such evidence existed. However, the complainant not only failed to call into question Ms. Graff-Schultz’s testimony on that point, her own testimony was consistent with Ms. Graff-Schultz’s. Moreover, the documents the complainant submitted to support her “Motion for Perjury,” which she contends establish that the respondent was responsible for the reallocation decision, were not presented at the hearing and are not part of the hearing record.[2]
Reclassification Decision
The complainant filed a reclassification request on January 19, 2011, asking to be moved from a paraprofessional classification to a professional classification. Eight months later, her request was denied on the ground that the respondent had determined the majority of the complainant’s work time was spent on paraprofessional duties. The respondent explained that it considered the librarian specifications and concluded that the complainant’s position does not primarily serve library patrons and other libraries, and that positions that primarily provide support to professional librarians and are responsible for cataloging acquisitions and keeping records are excluded from the librarian specifications. The respondent also pointed out that other similar academic institutions did not have academic librarians performing acquisitions. The respondent further noted that having duties in a foreign language did not render a position “professional.” The complainant vehemently disagrees with the respondent’s assessment. Referring to Wis. Stat. § 111.81(5), the statutory definition of “professional employee,” the complainant argues that her work is “predominantly intellectual,” requires judgment and problem solving, cannot be standardized, and requires her to use her specialized Cyrillic language and expertise acquired at an institution of higher learning at least 50% of the time. The complainant also contends that she is performing the same duties that were performed by Milan Radovich, an academic librarian, prior to his retirement. However, while some of the complainant’s points may be arguable, the commission is unable to evaluate the accuracy or appropriateness of the respondent’s reclassification decision; the only issue that the commission may decide is whether the complainant’s age, sex, or the fact that she filed previous discrimination complaints were factors in that decision.[3] The commission, like the administrative law judge, sees no reason to believe this was the case.
To begin with, the complainant failed to demonstrate that the decision-makers, Nancy Graff-Schultz, the Associate Director for Business Administration, and Linda Weber, a Human Resource Specialist Senior in Classified Human Resources, were aware of the fact that she had engaged in prior protected activity. Ms. Weber did not testify at the hearing, and no evidence was presented to establish that she had any reason to be aware of the discrimination complaints the complainant filed with OED (the respondent’s Office of Equity and Diversity) or the ERD in 2002 and 2003. Ms. Graff-Schultz testified that when she started at GLS (the General Library System) in 2010 her predecessor informed her that the complainant had filed a case regarding the hiring of the Slavic librarian, in which she did not prevail. However, it was not established that Ms. Graff-Schultz understood that this involved an allegation of discrimination.[4] Although the complainant filed a more contemporaneous discrimination complaint with the OED on July 22, 2011, the record did not establish that either Ms. Graff-Schultz or Ms. Weber learned of that complaint before they issued their decision denying the complainant’s reclassification request on August 3, 2011. Indeed, Ms. Graff-Schultz testified that she believed the complaint was not filed until after the decision had been made. Absent any evidence to establish that Ms. Weber or Ms. Graff-Schultz were aware that the complainant had filed a discrimination complaint or complaints, there is no basis under which it could be found that the complainant’s reclassification request was denied in retaliation for protected activity.
That leaves the question of whether the complainant was discriminated against based upon her age or sex with respect to her reclassification request. In support of her contentions that she was discriminated against based upon her sex, the complainant points out that a male employee, John Berezin,[5] was treated more favorably with respect to reclassification, in that his reclassification was handled quickly and without a specific request on his part. However, the respondent offered a reason for handling Mr. Berezin’s reclassification differently than the complainant’s that is completely unrelated to gender: whereas the complainant was seeking to have her position reclassified from a paraprofessional position to that of a professional academic librarian, reclassifying Mr. Berezin was simply a matter of moving him to another paraprofessional title in the same series, from LSA-Senior to LSA-Advanced. The respondent explained that Mr. Berezin was already performing the duties of the LSA-Advanced title and that it wanted to reclassify him before OSER’s reallocation survey was completed. However, because the complainant was requesting reclassification into an entirely different job title, the respondent needed to perform an audit of her current position in order to determine whether and how many of her job duties were performed on a professional level. While it is understandable that the complainant might have found it frustrating that a colleague could be reclassified in a week while her request took months to process, the commission can see no reason to believe that either the speed with which the respective matters were handled or the differing end results were related to gender.
The complainant has provided no examples of other employees who were treated more favorably in the reclassification process or who performed tasks similar to those the complainant performed but were classified as professional librarians rather than as paraprofessionals, and the commission can find no reason to suspect that discriminatory motives were at play with respect to the complainant’s job classification. While in her petition for review the complainant makes reference to events occurring in 1995 and 1996, when she contends the respondent refused to grant her an interview for a professional Slavic cataloger position before hiring a younger male, and again in 2001 when it hired a younger male for the professional Slavic selector position, suggesting that this is evidence of ongoing discrimination against her based upon her age and sex, the 1995, 1996 and 2001 hiring decisions included a different set of decision-makers and are too remote in time to constitute evidence of an intent to discriminate against the complainant with respect to the denial of her reclassification request in 2011. Lacking any reason to believe that the respondent’s handling of the complainant’s reclassification request was in any way affected by considerations of age, sex or prior protected conduct, the commission agrees with the administrative law judge that this allegation should be dismissed.
Harassment
The complainant has also contended that her supervisor, William Byrne, harassed her based upon her sex, age, and in retaliation for having filed prior discrimination complaints. Specifically, Mr. Byrne is alleged to have notified the complainant she could no longer talk about her reclassification request during working hours, inspected the complainant’s work area to see if she was creating her purchase orders correctly, held a meeting with her to discuss her productivity, and issued “letters of expectation” regarding her productivity and the tone of her e-mails. In addition, Byrne imposed strict rules with regard to taking leave time and making changes to work schedules. However, while it appears that Mr. Byrne may have employed a more hands-on or authoritarian management style than the complainant was accustomed to, the record provides no reason to conclude that he singled out the complainant for discipline or adverse treatment in order to harass her based upon her sex, age or because she filed prior discrimination complaints.
To begin with, as with Ms. Graff-Schultz and Ms. Weber, the record contains no evidence to establish that Mr. Byrne was aware of the complainant’s prior discrimination complaints. Mr. Byrne became the complainant’s supervisor in 2005, years after the 2002 and 2003 complaints were filed, and the record contains nothing to indicate that he knew about those complaints.[6] In addition, the vast majority of the alleged instances of harassment by Mr. Byrne took place prior to the filing of the most recent OED complaint in July of 2011. While it might be presumed that Mr. Byrne did become aware of that complaint at some point--although the record does not specifically establish this was the case--the fact that his alleged adverse treatment of the complainant predated that complaint suggests that retaliation for protected activity was not the reason for his actions. Further, it appears that Mr. Byrne issued “letters of expectation” or reprimands to virtually every member of the staff, including males, people under 40, and those who had never filed prior discrimination complaints, and imposed the same strict attendance rules on everyone in the unit. Consequently, the commission can see no basis to conclude that Mr. Byrne singled the complainant out for harassment based upon her protected status. While the complainant speculates that other people in the unit were being harassed to cover up the fact that she and Ms. Wu (a colleague whom the complainant contended was also being discriminated against) were being targeted, this theory strains credulity and is wholly without evidentiary support in the record.
The commission notes that the complainant has suggested another reason for Mr. Byrne’s alleged adverse treatment of her: animosity based upon the fact that she filed a reclassification request. The complainant contends that the harassment by Mr. Bryne started immediately after she filed her reclassification request on January 19, 2011, and maintains that his attempt to impose a “no talking rule” was retaliation for having filed the reclassification request. However, assuming for the sake of argument that Mr. Byrne was upset that the complainant filed a reclassification request and treated her more harshly as a result, filing a reclassification request is not a protected activity under the Wisconsin Fair Employment Act and harassment related to having filed such a request would not constitute a violation of the statute.
The commission has considered the remaining arguments raised by the complainant in her petition, but finds them similarly unpersuasive. For the reasons set forth above, the commission agrees with the administrative law judge that the complainant failed to establish probable cause to believe that she was discriminated against in the manner alleged. The commission has modified the administrative law judge’s decision to correct errors identified by the complainant and to more clearly set forth the relevant findings. These modifications notwithstanding, the administrative law judge’s decision is affirmed.
|
cc: |
Attorney Sierra Beckles-Young |
[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.
Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.
[2] In her petition the complainant also argues that the fact the administrative law judge made no reference to her “Motion for Perjury” in the decision, while referencing the respondent’s “Motion in Limine to Exclude Irrelevant Evidence” demonstrates “unreasonable prejudice in favor of the employer.” However, the administrative law judge’s reference to the respondent’s motion in the introduction to the decision was solely for the purpose of pointing out that the motion was filed just a few days prior to the hearing and therefore would not be considered. The administrative law judge’s refusal to consider the respondent’s motion cannot be construed as evidence of prejudice in favor of the respondent.
[3] “The focus of a pretext inquiry is whether the employer’s stated reason was honest, not whether it was accurate, wise, or well-considered. We do not sit as a superpersonnel department that reexamines an entity’s business decision and reviews the propriety of the decision. Our only concern is whether the legitimate reason provided by the employer is in fact the true one.” Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000).
[4] “In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the complainant prove that the employer was aware that the complainant engaged in protected activities.” Cangelosi v. Robert E. Larson and Associates. Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990).
[5] Mr. Berezin is older than the complainant.
[6] In her petition the complainant argues that Byrne “probably knew” about the complaints because he was a GLS administrator. However, the commission cannot assume this was the case absent either documentary evidence or testimony from Byrne confirming that fact.