STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

SUSAN M. SCHILLER, Complainant

CITY OF MENASHA POLICE DEPARTMENT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 8910089, EEOC Case No. 26G880893

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on June 18, 1991. Respondent filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, and after consultation with the Administrative Law Judge concerning his assessment of the credibility and demeanor of the witnesses, the Labor and Industry Review Commission hereby issues the following:

FINDINGS OF FACT

1. Respondent is the police department of the City of Menasha.

2. Complainant Susan Schiller, a female, was hired by the City of Menasha as a police dispatcher in 1969. In this position, Schiller was a civilian and not a sworn police officer.

3. Roman Rappert became Chief of the Menasha Police Department in 1973.

4. When he became Chief in 1973, one of Rappert's decisions was that he would change the then existing promotion procedure to one which would consider length of service (seniority) as a police officer, along with performance evaluations and examination scores, in making decisions on promoting police officers.

5. The general formula adopted by Rappert in 1973 was that rank on promotional register would be based on an overall score in which seniority figured 25 percent, performance evaluations figured 25 percent, and score on a written examination figured 50 percent.

6. After deciding to institute a promotion procedure which awarded promotions based on a weighted accounting of seniority, performance evaluations, and examination scores, Rappert maintained that procedure at all times material thereafter as a regular, continuing policy.

7. Rappert decided to consider seniority as one factor in promotion because it reflected the candidates' experience as police officers and contributed to loyalty, stability and general morale of the department.

8. At the time Rappert made the decision to adopt a promotion procedure that considered seniority as one factor, there were no female police officers employed by the Menasha Police Department.

9. At the time Rappert made the decision to adopt a promotion procedure that considered seniority as one factor, he did not consider the question of how such a procedure might affect the promotional opportunities of any females who might thereafter be hired as police officers. He did not adopt the procedure with any intention of impairing the promotional opportunities of any women thereafter hired as police officers.

10. In the summer of 1974 Schiller told Captain Aschenbrenner that she was interested in applying for a position as a police officer. He laughed and told her that he would tell the Chief. Schiller did not follow up on this contact by asking for or completing an application.

11. In July 1975 Schiller asked Captain Aschenbrenner for an application for a position as a police officer, and he gave her one. She completed the application, participated in the examination process, and in the fall of 1975 she was placed on the eligible list for hiring as a police officer.

12. In September 1976, after three males had been hired off the eligibility list before her, Schiller filed a complaint with the Equal Rights Division alleging that the police department had discriminated against her in hire because of sex. This complaint was subsequently resolved by a conciliation agreement entered into in April 1977 which called upon the police department to hire Schiller for the next available position as a police officer.

13. Schiller was hired by the Menasha Police Department as a police officer on July 1, 1978. She was the first woman hired by the Menasha Police Department as a police officer.

14. In 1980, Respondent announced and conducted examination procedures for promotion to the positions of officer in charge (OIC) and sergeant. As had been decided by Chief Rappert in 1973, the decision on promotion to these positions was made by selecting candidates in rank order off an eligible register which ranked the candidates by their cumulative scores in the examination process, that being a weighted combination of written examination, performance evaluation, and seniority factors.

15. Schiller did not seek promotion to either position at this time, as she did not meet the posted minimum eligibility requirements of five years experience as a patrolman for officer in charge and ten years police service for sergeant.

16. In February 1987, Respondent announced an examination process for promotion to the position of sergeant. In April 1987, Respondent announced an examination process for promotion to the position of officer in charge. Both processes involved the creation of an eligible list in which the candidates were ranked in order of their cumulative scores in the examination process, pursuant to the general system adopted by Rappert in 1973.

17. Schiller participated in both promotional competitions in 1987. She ended up ranked third on the OIC eligible list and seventh on the sergeants eligible list.

18. In April 1987, Rappert promoted two male officers, Stanke and Stenson, to sergeant, and another male officer, Schais, to officer in charge. They were promoted because they had the highest total scores on the eligible lists for these positions. Schiller was not promoted to either sergeant or officer in charge at this time for the sole reason that she was not ranked high enough on the eligible lists.

19. In March 1988, an opening arose for one sergeant and one officer in charge. Rappert.decided to make promotions to those positions from the eligible lists that had been established for them in 1987.

20. Rappert's decision to use the existing eligible lists to make the promotions in March 1988 was not made with any intention to impair the promotional opportunities of Schiller, or any other woman, because of sex.

21. In March 1988, Rappert promoted two male officers, Hafner and Lingnofski to sergeant and officer in charge, respectively. They were promoted because they had the highest total scores on the eligible lists for those positions. Schiller was not promoted to either position at this time for the sole reason that she was not ranked high enough on the eligible lists.

22. Weighting of the written examination factor was achieved by using a written examination on which the maximum score was 100 and dividing that score in half, thus allowing a maximum of 50 points. Performance evaluation ratings were compiled by scoring on a scale allowing a maximum of 25 points. The weighting of the seniority factor, which is a factor that differs from tests and performance evaluations in that there is in theory no maximum score, was achieved by awarding 25 points to the promotional candidate with the highest seniority and then awarding the other candidates a fraction of 25 points equivalent to the ratio of their years of seniority to the actual number years of seniority of the most senior candidate. Thus, for example, if the most senior candidate had 17 years seniority, he or she would receive 25 points in the seniority category; another candidate with ten years seniority would receive 14.71 points (10/17 x 25 = 14.71).

23. The decision to use the weighting of seniority described above was made by Chief Rappert before any women were employed on the police force. The decision to use this method of weighting seniority was not made with any intention to thereby limit the promotional opportunities of Schiller, or any other women, because of sex.

24. When Schiller's seniority factor was computed in connection with her applications for promotion in 1987 and 1988, she was treated as having seniority extending back to 1977, even though she had not been hired as police officer until 1978, because this was viewed as consistent with the intent of the 1977 conciliation agreement resolving her hiring discrimination complaint. That agreement provided for payment to Complainant of the difference between her then wage and a police officer's wage, beginning in February 1977, until an opening for a police officer became available for her to be hired into.

25. When Schiller's seniority factor was computed in connection with her applications for promotions in 1987 and 1988, she was not given any credit for her service as a dispatcher. The decision not to treat service as an unsworn, civilian police dispatcher as equivalent to service as a police officer was not made with any intention to impair the promotional opportunities of Schiller, or any other woman, because of sex.

26. Three of the candidates for promotion to sergeant in 1987 had raw scores of less than 70 on the written examination. These three all ended up being placed on the eligible list which was created. Two ranked lower than Schiller on the eligible list; the third, Stenson, ranked higher than Schiller. If Stenson had not been placed on the eligible list for sergeant in 1987, Schiller would have ranked sixth instead of seventh.

27. While it had been announced in 1980 that there would be a minimum passing score of 70 on the examination for the position of officer in charge, the examination used in the competition for promotion to sergeant in 1987 was a different examination, and no announcement was ever made that there would be any minimum passing score on that examination. There was in fact no minimum passing score on the 1987 sergeants examination, and the three candidates who scored below 70 on that examination were placed on the eligible list for promotion without any belief on the part of those responsible that they were thereby disregarding any passing score requirement. The decision to place these three candidates on the eligible list for promotion to sergeant in 1987 was not made with any intention to impair the promotional opportunities of Schiller, or any other woman, because of sex.

28. Schiller was disappointed with her performance on the OIC examination in 1987, and she was eventually able to obtain and inspect her test papers. While she recognized based on this inspection that some of her answers had been erroneous, she also observed what appeared to her to be erasures on some answers. She brought this to the attention of the Chief, but he did not conduct any investigation into whether there had been tampering with the test, and he continued to use the scores obtained on the test as part of the basis for making promotions to OIC in 1987 and 1988.

29. The Chief's decision not to investigate whether there had been tampering with the 1987 OIC test, and to use those test results in promotion decisions, was not made because of any intention to impair the promotional opportunities of Schiller, or any other women, because of sex.

30. The test used for the OIC examination process had been used for that purpose once before, in 1980. Of the seven males who competed with Schiller for the promotion to OIC in 1987, only two would have had the time in grade which had been required to examine for OIC in 1980. These two males ended up scoring second and sixth, respectively, on the 1987 examination for OIC. Even assuming that either or both of these officers had in fact taken that examination in 1980, there is no reason to believe that this conferred any significant advantage on them when they took the examination again in 1987.

31. The decision to use an OIC examination in 1987 which had been used once before in 1980 was not made with any intention to impair the promotional opportunities of Schiller, or any other women, because of sex.

32. Respondent's failure to promote Schiller to sergeant or officer in charge in 1988 was not caused or affected, in whole or in part, by any decision made by any agent of Respondent with any intention to impair Schiller's promotional opportunities because of her sex.

Based on the FINDINGS OF FACT made above, the Commission now makes the following:

CONCLUSIONS OF LAW

1. The Menasha Police Department is an employer within the meaning of the Wisconsin Fair Employment Act.

2. Complainant Susan Schiller failed to establish by a preponderance of the evidence that the City of Menasha Police Department maintained promotion practices which discriminate on the basis of sex, in violation of the Wisconsin Fair Employment Act.

3. Complainant Susan Schiller failed to establish by a preponderance of the evidence that the City of Menasha Police Department failed to promote her to sergeant or officer in charge in 1988 because of her sex, in violation of the Wisconsin Fair Employment Act.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission makes the following:

ORDER

That the complaint in this matter be dismissed.

Dated and mailed at Madison, Wisconsin January 14, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

MEMORANDUM OPINION

Notice of claim statute - Section 893.80, Stats. provides that "no action may be brought or maintained against any . . . political corporation, governmental subdivision or agency thereof . . ." unless written notice is served on it within 120 days after the happening of the event giving rise to the claim. Respondent argues that Complainant's conceded noncompliance with this statute bars her claim. It also argues that the earlier decision of the circuit court itself impliedly so holds, contrary to the decision of the Administrative Law Judge, which was that sec. 893.80, Stats. does not apply to charges of discrimination brought before the Equal Rights Division.

Notwithstanding its ultimate decision to dismiss the complaint on the merits, the Commission will nevertheless address this issue in order to remove any doubts it can be seen as creating concerning the Commission's power to even address the merits of the case.

The circuit court decision does not hold that sec. 893.80, Stats. applies to complaints of discrimination under the Fair Employment Act. The Complainant evidently restricted her arguments to the court to the position that Respondent had actual notice of the claim. The court's ruling against Respondent merely reflected its conclusion that factual issues bearing on the question of actual notice remained unresolved. In these circumstances the commission does not believe that the circuit court decision represents law of the case on this issue.

Turning to the issue of whether sec. 893.80, Stats. applies to claims of discrimination under the Fair Employment Act, the Commission concludes that it does not. That section only limits the bringing of an "action," a word conventionally used to refer to a civil lawsuit in court (see, e.g., sec. 801.01, Stats., providing that proceedings in the courts are divided into "actions and special proceedings"). Section 893.02, Stats. provides that for purposes of any provision which limits the time for commencement of an "action"--and sec. 893.80, Stats. can be viewed as such a provision--the "action" is commenced when the summons and complaint are filed with the court. Of course, such documents are not filed in the case of a complaint under the Fair Employment Act. Section 893.80, Stats. was enacted in response to the Wisconsin Supreme Court's decision in Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), abrogating the historic common law doctrine of municipal tort immunity. Harkness v. Palmyra Eagle School District, 157 Wis. 2d 567, 579, 460 N.W.2d 769 (App. 1980). The immunity being addressed by the court in Holytz was concerned with the municipality's liability for torts as opposed to other forms of action. Id. Section 893.80, Stats. does not apply to claims for equitable relief. Kayser v. City of Mauston, 99 Wis. 2d 345, 356, 299 N.W.2d 259 (App. 1980).That is the type of relief which is available under the Fair Employment Act. Remedies for violations of the Fair Employment Act are not common law remedies. Bachand v. Connecticut General Life Insurance Co., 101 Wis. 2d 617, 623, 305 N.W.2d 149 (App. 1981). Damages, as a remedy for mental distress, humiliation, and the like, are not available. Id. at 632-33.

In addition to the Wisconsin Fair Employment Act, there are numerous other statutes applicable to municipal employment under which employes may engage in administrative proceedings as a result of which an administrative agency may order the municipality to provide some kind of remedy to the employe including the payment of money. See, e.g., sec. 101.055, Stats. (Public Employe 's Right-To-Know Law), Ch. 102 (Worker's Compensation), sec. 103.10, Stats. (Family and Medical Leave Act), Ch. 109, Stats. (Wage Claims), sec. 111.70, Stats. (Municipal Employment Relations Act). Despite this, there has never been any reported holding by any court that sec. 893.80, Stats., or its predecessor, applies to the commencement of such administrative proceedings.

Even if sec. 893.80, Stats. were found to apply to administrative proceedings, it would still be inapplicable to proceedings under the Wisconsin Fair Employment Act. In Kurtz v. City of Waukesha, 91 Wis. 2d 103, 118, 280 N.W.2d 757 (1979), a case in which an attempt was made to bring a lawsuit in court on a cause of action claimed to arise under the WFEA, the Wisconsin Supreme Court held that by amending the WFEA to apply to state employes with causes of action arising under the Act, the Legislature consented to suit under the provisions of the Act, and that consent extended to municipalities. Therefore, the court held, the general provisions of what is now sec. 893.80, Stats. (it was then numbered sec. 895.43, Stats., prior to its renumbering by 1979 Assembly Bill 326) are superseded by the specific authority of the Fair Employment Act.

Procedural issues including scope of complaints - The parties disagree in a number of respects concerning the scope of the issues presented. This subject is complicated by the procedural history of the case.

The original charge was ambiguous as to whether it complained of discrimination in the April 1987 promotions (two to sergeant and one to OIC) or the March 1988 promotions (one each to sergeant and OIC). Although the complaint alleged, "I was not selected for either the OIC or sergeant positions in 1987 or 1988," it also specifically alleged that openings announced for sergeant and OIC in 1988 had not been filled. In fact, they had been filled at the time the complaint was filed.

The original charge was also ambiguous as to whether what was alleged was direct, intentional discrimination because of sex, or "disparate impact" discrimination arising from use of a facially neutral selection device (seniority) having a disparate impact on females.

An investigator interpreted the complaint as referring solely to the 1987 promotions, and ordered it dismissed because it was filed more than 300 days after those promotions were made. Complainant appealed this dismissal, and the Administrator of the Division ruled that (1) the complaint referred solely to the 1987 promotions, so that any claim concerning the 1988 promotions would have to be raised by an amended complaint; (2) the complaint was untimely insofar as it alleged that denial of promotion to Complainant in 1987 was discriminatory; and (3) the complaint also contained an allegation that Respondent was engaged in a continuing violation of the Act by its maintenance of an ongoing practice of testing and evaluation which discriminated against females, and because this alleged violation was continuing the complaint was timely.

Complainant took the advice given in the Administrator's decision concerning the filing of an amended complaint to add an allegation concerning the 1988 promotions, but she did so too late: her amended complaint was filed only on January 17, 1989, more than 300 days after March 11, 1988, the day on which the Menasha Police and Fire Commission formally confirmed the promotional appointments complained of in the amended complaint.

Thereafter in the course of the investigation, there continued to be a lack of clarity on the question of whether disparate treatment or disparate impact was being alleged. Judging from statements in the Initial Determination, it appears that the investigator understood the case as presenting the issue of whether Respondent's use of seniority as a factor in promotion had a disparate impact on females. The investigator also acknowledged, but did not expressly resolve, the issue concerning the timeliness of the allegation about the 1988 promotions.

After the Initial Determination was issued but before hearing, Respondent went to court seeking a writ of mandamus requiring the Division to dismiss the complaint on a number of grounds: (1) that Complainant had not complied with sec. 893.80, Stats., (2) that the complaint was untimely on various grounds, (3) that the complaint was barred by a conciliation agreement entered into by Complainant and Respondent in 1976 to resolve an earlier complaint concerning hire, and (4) that the complaint was inadequate as a matter of law because bona fide seniority systems were protected from findings of discrimination unless they were actually intended to discriminate. The court ruled against Respondent, and its ruling serves to define to some extent what the issues in this case are.

First, the court held (contrary to the earlier decision of the Division Administrator) that the original complaint could be considered to raise the issue of the 1988 promotions. Since the amended complaint was filed only a few weeks after the 1988 promotions were finalized, it was clearly timely. The court also rejected the Respondent's argument that the complaint was untimely even as to an allegation of ongoing maintenance of a discriminatory promotion practice.

Second, the court held that the complaint did raise the issue of intentional (i.e., disparate treatment as opposed to disparate impact) discrimination.

The Notice of Hearing which had been issued prior to that time stated that the hearing would be held to determine whether Respondent discriminated against Complainant, as alleged in the attached complaint, because of sex in promotion, terms of employment and conditions of employment. As clarified and interpreted by the circuit court's decision, which was not appealed by Respondent and is the law of the case on the express holdings described immediately above, Respondent was thereby given adequate notice that the issues for hearing would be whether it intentionally discriminated against Complainant because of her sex in denying her promotion in 1988 and whether it violated the Act by maintaining a promotion system which discriminated on the basis of sex. (1)

The scope of the issues before the Commission is further affected by specific rulings of the Administrative Law Judge and by the failure of the Complainant to seek review from those rulings adverse to her. Specifically, the ALJ ruled that the "continuing violation" claim of maintaining a discriminatory promotion system (as contrasted to the claim of a specific discriminatory decision concerning promotion in 1988) involved only the issue of the Respondent's use of seniority as a factor in promotion. Furthermore, the ALJ ruled that the Complainant had failed to prove either that the use of seniority as a factor in promotion was intended to discriminate because of sex, or that it had a disparate impact on females. He therefore expressly rejected that "continuing violation" claim. Respondent's use of seniority as a factor in promotion was thus found by the ALJ, as a general matter, to have been lawful. Complainant did not seek review of this finding. The Commission agrees that the evidence in the record is entirely inadequate to show that use of seniority as a factor in promotion had a statistically significant disparate impact on the promotional opportunities of females. The Commission also agrees that the evidence fails to show that when Chief Rappert decided in 1973 to consider seniority as a factor in promotion he did so with any intent to discriminate on the basis of sex. In these circumstances, the commission will not disturb the ALJ's conclusion of law concerning the allegation of an ongoing practice of maintaining a promotional system which discriminates on the basis of sex. Because of this, it is unnecessary to address Respondent's arguments concerning the effect of the 1976 conciliation agreement on Complainant's right to bring a claim that use of seniority as a factor was improper. Issues about whether state or federal law allow a finding of discrimination in connection with the operation of a bona fide seniority system also become irrelevant.

Thus, the only substantive issue remaining in this case, is whether intentional discrimination because of sex was involved in Respondent's failure to promote Complainant to sergeant or officer in charge in 1988.

Merits - Ultimately, of course, Complainant's failure to be promoted in 1988 was for an indisputably sex-neutral reason: her numerical rank on the eligible lists. The question is whether there were any acts taken by agents of Respondent, because of Schiller's sex, which caused her rank to be lower than it otherwise would have been. The Administrative Law Judge decided that there were indeed a number of such acts: (1) placing Stenson on the sergeant's eligible list given his raw score of 69 on the written examination; (2) using the written examination for OIC which had been used before; (3) using the results of the OIC written examination despite Schiller's claim that there may have been tampering with her answer sheet; (4) not giving Schiller seniority credit for service as a dispatcher; and (5) using a method of computing the seniority element of the score by which the most senior applicant always received a full 25 points with the other applicants receiving a fraction of 25 points proportional to the ratio of their seniority to the senior candidate's seniority.

Putting Stenson on the sergeant's register - Complainant claims that Stenson should not even have been put on the register because he scored 69 on the written examination and there was a passing score of 70. However, there is no persuasive evidence that there was a "passing score" cutoff. Complainant relies on the undisputed fact that there was a passing score cutoff of 70 on the 1980 examination for officer in charge. However, this was a different examination. While the announcement of the OIC examination in 1980 specifically indicated that there would be a passing score of 70 on the examination, the notice for the sergeant's examination in 1980 contained no such indication, and there was also no such indication on the notice for the sergeant's examination in 1987. Complainant relies almost exclusively on the testimony of Chief Rappert, which she contends is to the effect that the "procedures" were the same for all of the tests. She thus claims that there must have been a passing score cutoff on the 1987 sergeant's exam. Rappert's testimony is confusing at best. Complainant's counsel was trying hard to lead him to this result, and the generic references in counsel's questioning to the "procedures" for the tests could have been understood by Rappert as referring to process more than standards (i.e., the general pattern of there being a posting, examination, and ranking), or to the other similarities (in all cases a similar weighting of 50% examination, 25% seniority and 25% performance was used) . While Rappert did testify at one point that the "procedures" were the same on all the tests, the commission does not believe this testimony should be given great weight. He was clearly confused about many of the details, and obviously did not remember much about the specifics of the examinations. There is no clear indication that he was closely involved with the details of the processes in either 1980 or 1987. Also, the present Chief of Police, Stanke, who was a patrol officer at the time and who participated in the examinations, testified that he had no understanding in 1987 that there was a 70% passing score on the sergeant's exam, and that nothing was ever said to him about there being such a passing score.

Finally, in order to support the ALJ's decision, it would be necessary to conclude that, even if there was in fact a passing score cutoff in the 1987 promotional process for sergeant, Chief Rappert promoted Stenson on that occasion despite knowing that he had not "passed" the exam because he wished to prevent Complainant's promotion to sergeant due to her sex. Yet the fact that Complainant was ranked 7th at that time, and would have only had a rank of 6th if Stenson had not been allowed on the register, makes it seem doubtful that this was the motive. While it is true, as the ALJ reasoned, that enforcing a passing score cutoff of 70 on the 1987 sergeant ranking "would have moved [Complainant] closer to promotion," she would still have been too far away from it to think that this could have motivated the Chief. It is difficult to see Chief Rappert "planning" to prevent Complainant from being promoted by effectively bumping her from 6th to 7th place. For one thing, this apparently unnecessary move would require the Chief to improperly advance another officer, not only ahead of Complainant, but also ahead of five other male officers who were "closer" to promotion than her and were thus even more entitled to be angered by the move. For these reasons, the Commission does not believe it was persuasively demonstrated that there was a 70-point cutoff on the 1987 sergeant's examination, or that, whether or not there was such a cutoff, concerns about Complainant's promotional opportunities played any part in the decision to allow Stenson on the sergeant's register in 1987.

Using a test for OIC that had been used before - It was the express theory of Complainant, expressly adopted by the ALJ, that there was sex discrimination in the decision to use the same test rather than using a new test. The assumption implicit in this is that officers who had taken the test before had a competitive advantage over those who had not. Also implicit in the conclusion that there was discrimination, of course, is the supposition that the decision to use the old test was made for this reason and with the intention to thereby disadvantage Complainant (the only female officer with the time in grade adequate to compete for OIC) because of her sex.

The implausibility of this as a method of discriminating, and the general weakness of the evidence that this was the purpose of the decision, leave the Commission unpersuaded as to the validity of this theory.

There is persuasive evidence of only one previous administration of a test, seven years before. A reasonable person would not predict that persons who had taken that test seven years before would be significantly advantaged in taking it again, especially where (as here) there is no evidence that the people who took it in 1980 were able to see their own test results including correct answers. Also, there is actually no direct evidence that any of the officers who took the OIC examination in 1987 had taken it in 1980. In fact, there is evidence that most did not: of the 7 males who took the OIC exam with Complainant in 1987, 5 could not have taken it in 1980 because, like Complainant, they did not at that time have the five years as a patrol officer required to participate in the examination. The only two officers taking the OIC exam in 1987 who could theoretically have participated in 1980, scored 2nd and 6th, respectively, on the 1987 exam. This hardly suggests that use of the same test conferred any significant advantage.

Complainant claims after the exam when she was discussing it with the Chief, he told her that he had used it two or three times already, and that some of the guys had taken it two or three times and knew it by heart. The Chief was not directly asked about this testimony and so it is not denied, but even if he made these statements the Commission does not believe they were accurate. It is simply too inconsistent with the evidence that there had been only one prior administration of the test. The Commission suspects that the Chief did say something to the Complainant about some candidates having taken the test before, but that it was overstated, probably in an effort to make her feel better about having gotten the lowest grade among all those who wrote the exam in 1987.

The Commission therefore concludes that it is no more than mere speculation to assert that a choice was made to use the old OIC exam in order to disadvantage Complainant because of her sex.

Using the OIC test despite Complainant's claim of "irregularities" - Complainant insists that when she inspected her OIC test after it had been graded she found that, although there were some questions that she acknowledges she simply got wrong, there were others where it "appeared" that there had been erasures. She has introduced no other evidence supporting a claim that her examination was tampered with, and she has in fact really not made this claim directly, but she instead focuses on the fact that the Chief decided to use the OIC register resulting from this test, with knowledge of her asserted suspicions, instead of at least investigating them or running another examination in 1988 when another opening arose.

It is the Complainant's theory and the ALJ's finding that the Chief did this in order to impair Complainant's promotional opportunities because of her sex. This does not rise above the level of speculation. In the absence of any evidence of tampering apart from Complainant's claim that she saw what "appeared" to be erasures and that she did not remember making any erasures on the test, it is more probable that either (1) what she thought were erasures were not in fact erasures, or (2) she had in fact made erasures on the test, changing her own mind about answers. Chief Rappert may have had much the same response to these types of claims. Certainly, this is not an unjustified response to complaints from a person disappointed with a poor test score.

Not crediting Complainant for seniority time as a dispatcher - It is the ALJ's theory that service as a dispatcher would provide experience similar to that of a patrol officer, so that it would make sense for that experience to be considered when developing an experience ("seniority") factor in promotion, so that (in turn) it can.be concluded that sex bias must have led the Chief not to do this thing which the ALJ thought would make sense. The commission does not find this theory persuasive.

First, the Commission believes that the proposition that service as a police dispatcher would provide experience equivalent to that of a patrol officer, such that that experience should be afforded equal weight in consideration for promotion, is not one that most unbiased police officers or chiefs would agree with. It is by no means such an obviously correct viewpoint that bias should be suspected on the part of anyone who does not share it.

Second, there is no evidence that any males were given seniority credit for any type of prior service other than service as a patrol officer.

Third, there are institutional reasons why service as a dispatcher was probably never even considered for a moment as a potential creditable factor in these promotions. The dispatchers were originally in no union at all, and in the mid 1970s, apparently before Complainant became an officer, the WERC "accreted" the civilian (unsworn) police department staff, including dispatchers, to an AFSCME bargaining unit of city hall employes. Police officers, by contrast, were represented by a local of the Wisconsin Professional Police Association. The concept of "seniority" is absolutely central in labor relations, and one principle which is universally recognized is that seniority is accrued by service in the bargaining unit. It would be highly unusual for an employer with union-represented employes to hand out promotions in part based on "seniority" and to then count service in another bargaining unit as seniority for use in the bargaining unit in question. The Commission is confident that, for reasons having nothing to do with sex bias or any desire to discriminate against Complainant, it would never even have occurred to Chief Rappert to consider service in some other position, outside of the bargaining unit, as "seniority" towards these promotions.

"Curving" seniority - Respondent has for years followed the practice of promoting in rank order based on a composite score reflecting three factors: a written examination, performance ratings, and seniority. A difficult problem is presented in "weighting" seniority properly. Unlike the situation on a test or a performance rating system, there is no "maximum" seniority, so it may exceed 25 years. It is more a relative rather than an absolute factor. There is no ideal solution to this problem. In this case, the City adopted the method of "curving" the range by giving the most senior candidate 25 points, with everyone else's points computed accordingly. What it did was something like "curving" test results by giving the highest raw score an "A" and grading the other scores relative thereto.

One obvious effect of this is that, while no one is likely to achieve a perfect score on the written exam or the performance ratings, someone (the most senior employe) will always achieve what amounts to a perfect score (25) on the seniority portion of the competition. The theory of the Complainant and the ALJ is that this unfairly gives seniority greater weight than it should have.

However, there is nothing inherently unfair or inequitable in the City's method. It is one way of dealing with the situation which requires melding two different types of ratings (ratings on an absolute scale, as in the case of tests, and ratings on an open scale without a top) into one final score. The reasoning of the Complainant and the ALJ may be that the description in the postings of a 50%, 25% and 25% "weighting" was not entirely accurate. However, as the City argues, it could just as well have established a promotional system in which seniority was weighted at 100%. The question of what weight seniority "should have" was for the Respondent to determine. The fact that seniority ends up having somewhat greater significance to the outcome than Complainant may have initially understood when she contemplated the postings is not legally significant, particularly in view of the ALJ's separate ruling that the City did not violate the law by using seniority as a factor in promotion.

Clearly, some method of "weighting" seniority had to be adopted. What is missing is the critically important proof that the particular method of weighting seniority was adopted with the purpose and intent of impairing Complainant's promotional opportunities because she is female. Here the ALJ's ruling that it was not illegal to use seniority as a factor is also critical. The ALJ's rationale in arriving at that result was that the decision to use seniority as a factor in promotion was made in 1973 when Rappert became Chief of Police and changed the then-existing promotional process. At that time, the 50% test/25% performance rating/25% seniority standard was adopted. The ALJ noted that 1973 was well before there were any females on the force. He concluded that there was no evidence of consideration at that time of the effect of such a practice on female officers.

The ALJ found, however, that Chief Rappert's decision to "curve" that portion of the examination relating to seniority was made after Complainant was hired. This allowed him to identify it as a separate decision made because of sex and with the intention of limiting Complainant's promotional opportunities. The Commission can find no support for this finding. Chief Rappert testified that the policy he set up in 1973 remained the same through the 1987 process which established the register used in 1988. He testified that the 50%/25%/25 % process was used before Complainant became an officer. Complainant's brief is unable to cite any support for the ALJ's finding that the decision to "curve" seniority was made after Complainant was hired; it simply points to the fact that "the testimony of the Chief regarding the implementation of [the] promotion policy was less than crystal clear," and that given that testimony, the ALJ was correct in determining that the "curving" was begun after Complainant was hired. However, this reverses the burden of proof. The ultimate burden of proving that some decision was made because of sex is on the Complainant. The ALJ's finding is also without direct support in the record, and it cannot reasonably be inferred from any other evidence. At best, it is speculation.

For all these reasons, the Commission is unpersuaded that any of the decisions focused on by the Complainant and the ALJ, even if they had any effect on the ultimate ranking of the Complainant on the eligible lists, were made with any intention to thereby discriminate on the basis of sex

The Wisconsin Supreme Court has held that where the Commission reverses an Administrative Law Judge, making contrary findings, and credibility of witnesses is at issue, due process requires that the Commission consult of record with the ALJ to obtain his or her personal impressions of the material witnesses based on observation of their demeanor. (2)  Braun v. Industrial Commission, 36 Wis. 2d 48, 56-57, 153 N.W.2d 81 (1967), Carley Ford, Lincoln, Mercury, Inc. v. Bosquette, 72 Wis. 2d 569, 576, 241 N.W.2d 596 (1976), Hamilton v. DILHR, 94 Wis. 2d 611, 621, 288 N.W.2d 857 (1980). Because of the Commission's inclination to make findings contrary to those of the Administrative Law Judge on the issues of credibility in this case, it was required to and did conduct a telephone conference with the ALJ in which he was invited to describe any impressions he drew concerning witness credibility based on observation of witness demeanor while testifying.

In response to this invitation, the ALJ informed the Commission that Rappert's demeanor "strongly supported" the conclusion that he had strong ideas about the roles of women and men, that his demeanor "strongly supported" the conclusion that he engaged in the discriminatory conduct found by the ALJ, that the ALJ did not find Rappert's denials credible, and that the ALJ did consider Schiller's testimony credible.

The Commission has also given particular consideration to those parts of the ALJ's Memorandum opinion in which he explained his view that Rappert's demeanor supported the credible testimony of others that he thought in sexual stereotypes, viewed women police officers as aberrations, and thought women would be better off at home.

The things the ALJ describes in his Memorandum opinion as related to the "demeanor" of Chief Rappert are not matters of demeanor at all. What the ALJ refers to is the substance of the Chief's testimony. The Commission is as well equipped as the ALJ to consider the substance of the witness's testimony and decide whether or not it is believable and what inferences it may or may not support on the critical question of motivation. What the Commission does not have, and all that the consultation requirement is directed to, is information about the manner in which the testimony was given--physical appearance of the witness, facial expression, tone of voice, and similar matters.

Just as the ALJ's written discussion of how the substance of Rappert's testimony led him to certain conclusions fails to provide the Commission with any information on Rappert's demeanor, so do the ALJ's general comments in consultation with the Commission fail to provide this information. The fact that the ALJ believes that the Chief's demeanor supported the ALJ's conclusions about his credibility, does not-communicate anything to the Commission about what that demeanor was. The Commission could tell from the ALJ's decision, even prior to consulting with him, what his ultimate conclusion on the credibility of witnesses was. Because the ALJ did not indicate to the Commission that there was any identifiable aspect of any witness's demeanor which contributed to this ultimate assessment of witness credibility, the commission concludes that the ALJ found witness demeanor inconclusive and that he drew his conclusions on credibility from the substance of witnesses' testimony.

The commission has explained above its reasons for arriving at its conclusions as to Rappert's motivations in the decisions and actions focused on by the ALJ. No further explanation of the reasons for the disagreement are necessary, since it is evident that the ALJ's decision was not based on any aspects of witness demeanor, but was instead based on the substance of testimony which the commission is equally able to consider. The Commission's view is that, while there may be reason to suspect that Chief Rappert had certain biased views concerning women, and while there may even be reason to suspect that he would have discriminated against Complainant in promotion because of sex if an opportunity to do so had presented itself squarely to him, this is irrelevant here because the non-promotion of Complainant in fact resulted in this case from nondiscriminatory factors. Discriminatory attitudes are not unlawful unless they actually result in discriminatory treatment. Way v. Merchants Federation and LIRC (Dane County Circuit Court, January 22, 1980).  Whether or not Chief Rappert would have discriminatorily refused to promote Schiller if the decision had been his, the fact is that Schiller failed to get the promotions at issue because of her relative examination scores, performance evaluation ratings and seniority. The choice of this as a system for awarding promotions, was not a result of sex discrimination. The particular scores, ratings, and seniority of the Complainant which went into her final ranking, were not a result of sex discrimination. Therefore, the denial of the promotions was not a result of sex discrimination.

110

DISSENT

I dissent. Rappert's continued use of a promotion procedure which gives seniority great weight, after Schiller's equal rights complaint and Rappert's conciliation thereto in 1977, evidence Rappert's discriminatory conduct. Seniority did not have to be maintained as a factor because experience, loyalty and stability were already covered by the performance evaluation component of the exam. Schiller's low score on the OIC written exam is suspicious in light of her high score on the sergeant's written exam and I would find Rappert's failure to investigate to constitute evidence of discrimination.

/s/ James R. Meier
Commissioner

Appealed to Circuit Court. Affirmed October 1, 1993.  Appealed to Court of Appeals. Affirmed  November 16, 1994 (unpublished).

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Footnotes:

(1)( Back ) The Administrative Law Judge also took it upon himself to add to the Notice of Hearing an issue of whether the Respondent had retaliated against Complainant for her filing of her earlier complaint of discrimination. Even a liberal reading will not disclose in either the original or the amended complaint an allegation of retaliation. The Commission is confident the Complainant never intended to raise such an allegation, none was ever referred to by any party during the course of the investigation, and no issue of retaliation was addressed in the Initial Determination or made the subject of a finding as to probable cause. If only because of this last point, it was clearly not proper to notice the issue for hearing. See, Marchant v. Breakthrough Marketing Services (LIRC, February S, 1988), Schumacher v. Indermuehle Metal Industries (DILHR, November 17, 1976). Because it considers that the question of retaliation was, in legal contemplation, never a part of this case, the Commission has made no findings or conclusions concerning it.

(2)( Back ) This is a minority view. See, Rosales v. Dept. of Labor and Industries, 40 Wash. App. 712, 700 P.2d 748, 750 (Ct. App. Wash. 1985).  The majority rule is that due process does not require the preservation of demeanor evidence under any circumstances. Note, Replacing Finders of Fact--Judge, Juror, Administrative Hearing Officer, 68 Col. L. Rev. 1317, 1361 (1968).   The majority rule rests on the view that any loss of "demeanor evidence" is harmless error in view of the many other indicia of veracity which appear in a record, such as contradictions internal to a witness's testimony, contradictions in testimony of witnesses allied in interest, conflict with known facts, inherent unbelievability, and evident bias or prejudice, in the face of which indicia "demeanor evidence" fades in importance. Id. at 1326-27.   The questionable reliability of "demeanor evidence" has also been cited as a basis for the majority rule.  Id. at 1361.  "Demeanor evidence" may be more prejudicial than probative on the issue of sincerity:  the assumption that lying is emotionally upsetting and that an experienced trier of fact can detect this has been questioned. See Id. at 1327, citing Skolnick, Scientific Theory and Scientific Evidence An Analysis of Lie Detection, 70 Yale Law Journal, 694, 700 (1961), and Flock, Limitations of the Lie Detector, 40 J. Crim. L.C.&P.S. 651 (1950).  One commentator has gone so far as to conclude that "witness demeanor is a very treacherous technique for assessing credibility." Lareau and Sacks, Assessing Credibility in Labor Arbitration, The Labor Lawyer, Vol. 5, No. 1 (Spring 1989).

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