STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

BONNIE J KACZMAREK, Complainant

CITY OF STEVENS POINT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 200200370, EEOC Case No. 26GA200654

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 conclusion in that decision as its own.

DECISION

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

Dated and mailed August 12, 2003
kaczmbo . rsd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In reviewing a failure to hire case such as this one in which disparate treatment on the basis of sex is alleged, the commission has utilized the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973). Within this framework, the complainant has the initial burden to establish a prima facie case of discrimination by showing that she applied for an available position for which she was qualified, but she was rejected under circumstances which give rise to an inference of unlawful sex discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113 (1981). If the complainant succeeds in establishing a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the complainants' rejection. Should the employer articulate such a reason, the complainant must then prove that the reason offered by the employer was not the true reason but was a pretext for discrimination. Burdine, supra. See, also, Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

The adverse action at issue here is the respondent's failure to select the complainant as a member of the interview pool. Since five of the eight candidates selected by the respondent for this pool were female, the circumstances do not appear to give rise to an inference of sex discrimination. However, the complainant argues by implication that this should not be the end of the inquiry since the employer purposely selected a relatively large number of female candidates to make the selection appear gender-neutral but selected only female candidates with weaker credentials in order to assure that a male candidate would be selected for the subject position. In order to prove this theory, however, the complainant would have to show that there were female candidates not selected for the interview pool with significantly stronger credentials for the subject position than the female candidates who were selected. The complainant has failed to make such a showing. The only female candidate not selected for the interview pool whose credentials are a matter of record here is the complainant. The educational background of the female candidates selected for the interview pool satisfied the criteria set forth in the job posting and position description, i.e., Cindy Polzin had an undergraduate degree in public administration/policy analysis with a minor in political science; Cheri Auchtung had an undergraduate degree in political science; Melissa Utect had an undergraduate degree in marketing/communications; Heidi Nachman had an undergraduate degree in political science/public administration; and Sara Finn had an undergraduate degree in communications. The complainant's undergraduate degree in sociology/psychology and her graduate work in business administration did not satisfy the education-related selection criteria. In addition, several of the female candidates selected for the interview pool had work experience related to the stated political science, public administration, or communication criteria, i.e., Polzin interned in a congressional office; Utect worked in county government and in public education; and Finn worked as a news reporter. Although the complainant apparently had experience interpreting and applying certain federal railroad safety standards and procedures as part of her customer service position with the Wisconsin Central Railroad, this private sector experience was not as directly relevant to the stated criteria as that of these other female candidates. As a whole and considering the selection criteria for the subject position, the complainant's education and work experience background was not as strong as that of the female candidates selected for the interview pool and she has failed, as a result, to show that the respondent purposely selected weaker female candidates in order to assure the selection of a male candidate for the position. The commission concludes that the complainant failed to establish a prima facie case of sex discrimination.

If the complainant had succeeded in establishing a prima facie case, the burden would shift to the respondent to articulate a legitimate, nondiscriminatory reason for not selecting the complainant as a member of the interview pool. The respondent's explanation, i.e., that the complainant's education and experience did not satisfy the selection criteria for the position as well as that of the candidates selected for interview, is legitimate and non-discriminatory on its face.

The burden then shifts to the complainant to demonstrate pretext. Complainant contends that the fact that her credentials were actually stronger than those of the candidates selected for the interview pool demonstrates pretext. The commission has already concluded above that the complainant's credentials were not stronger than those of the female candidates selected for the interview pool. In addition, an examination of the credentials of the male candidates leads to the same conclusion, i.e., Louis Molepske, Jr., had an undergraduate degree in political science with a minor in journalism, had interned in the Stevens Point city attorney's office and in the Portage County district attorney's office, and had a law degree and working familiarity with municipal law; Marcus Smith had an undergraduate degree in history, and, for ten years, had worked as a staff assistant to the mayor of Milwaukee and as a legislative fiscal manager for the City of Milwaukee; and Hans Walther had an undergraduate degree in political science, had served as a Stevens Point alderman and as a member of the Portage County Board of Supervisors. As a whole and considering the selection criteria for the subject position, the complainant's education and work experience background was also not as strong as that of the male candidates selected for the interview pool. The complainant has failed to demonstrate pretext.

The complainant also appears to be offering a disparate impact theory of sex discrimination by arguing that a female had never been appointed to the subject position and that males outnumber females in professional positions in Stevens Point city government. The "disparate impact" theory of discrimination under Title VII was set forth by the U.S. Supreme Court in Griggs v. Duke Power, 401 U.S. 424 (1971). It has been recognized as being applicable to the Wisconsin Fair Employment Act. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 594-95, 476 N.W.2d 708 (1991), see also Wisconsin Telephone Company v. DILHR, 68 Wis. 2d 345, 368, 228 N.W.2d 649 (1975). Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has a disproportionately adverse impact on a protected group. Disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. See, Racine Unified School District, 164 Wis. 2d at 594-96; Abaunza v. Neenah Foundry, ERD Case No. 9000749 (LIRC March 30, 1993). The complainant has failed to offer this type of statistical evidence here, and her claim of disparate impact discrimination necessarily fails as a result.

In her petition for commission review, the complainant contends that Stevens Point City Attorney Louis J. Molepske had a conflict of interest and should not have been allowed by the administrative law judge to represent the respondent in this matter, and that the administrative law judge (ALJ) should have disregarded Attorney Molepske's reply to the ALJ's request that he respond to the complainant's contention in this regard since it was not provided within the time frame specified by the ALJ.

The complainant's conflict of interest contention here is apparently based on Attorney Molepske's representation of the complainant in 1987 and 1988 regarding a mortgage dispute with a savings and loan institution. Since the complainant has failed to show that her discrimination complaint is related in any way to this earlier mortgage dispute, or that Attorney Molepske gained any information from his earlier representation of her that would work to the complainant's disadvantage in the present litigation (See, Supreme Court Rule SCR 20:1.9), it would have to be concluded that the complainant has failed to show that any prohibited conflict of interest existed or that her ability to obtain a fair hearing was compromised in any way by Attorney Molepske's representation of the respondent here. Moreover, the seven-day response period specified by the ALJ in his July 16, 2002, correspondence was established at the ALJ's discretion. Given the short period of time for response specified by the ALJ as well as the fact that Attorney Molepske's response was received only three days after the deadline, the commission does not conclude that the ALJ's waiver of the response deadline in order to consider Attorney Molepske's response was an abuse of discretion.

cc: Attorney Louis J. Molepske

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