ALLEN BEDYNEK-STUMM, Complainant

COUNTY OF DANE, 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 conclusion in that decision as its own.

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

Dated and mailed October 10, 2003
bedynal . rsd : 115 : 9 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

The complainant advances several bases for his petition for commission review. It should first be noted that, in presenting his arguments, complainant relies on certain facts which are not of record. The commission did not rely upon any of these facts in reaching its decision. It should further be noted that, in conducting its review and reaching its decision, the commission applied the probable cause standard, a lesser standard than that employed when a case is heard and decided on the merits.

In reviewing a failure to hire case such as this one in which disparate treatment 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 he applied for an available position for which he was qualified, but he was rejected under circumstances which give rise to an inference of unlawful 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 complainant's 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 here is the initial screening, not the final selection. The record establishes that a number of white males, and at least one white male in the protected age group, survived this screening process. The complainant has failed to show that the number of white males over 40, or the number of whites, males, or candidates over 40 individually, in this group of survivors failed to mirror their corresponding numbers in the applicant group. The circumstances do not give rise to an inference of race, sex, and/or age discrimination, and the complainant has failed to establish a prima facie case.

If the complainant had succeeded in establishing a prima facie case, the burden would then shift to the respondent to articulate a legitimate, non-discriminatory reason for screening complainant out at the initial step of the selection process. Respondent explains in this regard that complainant's relevant qualifications were not as strong as those of the candidates ranked in the "better" or "best" groups, and this explanation is legitimate and non-discriminatory on its face.

The burden then shifts to the complainant to demonstrate that this reason offered by the respondent was a pretext for discrimination.

Complainant first argues that, since his academic qualifications were superior, he was better qualified for the subject position than certain of the candidates who survived the initial screening process. However, the record shows that having an advanced degree was not a primary selection criterion, and that the respondent's emphasis instead focused primarily on experience in providing direct services to the target client population; and that, although a secondary consideration was relevant training and experience, an advanced degree was not required. This is justified by the paraprofessional level of the position, as well its hands-on, direct- service nature.

The complainant next argues that one of the female candidates survived the initial screening even though she "misrepresented" the number of years of her relevant experience. It is presumed that this candidate is female by the fact that she referred in her resume to her "husband." The record shows that this candidate, when asked to describe her relevant training and experience, stated on her resume (complainant's exhibit #17) that she had "22 years of Nursing/Human Service experience;" and that, when asked to detail her recent work experience, described the three positions she had held during the preceding 11 years. It cannot be concluded from this that she had only worked in the nursing/human services field for 11 years, particularly since the resume work experience section instructed the candidate to "[g]ive a complete record of any employment, self-employment, military service or volunteer experience you have had in the past 10 years. (emphasis in original).

The complainant also contends that Milch, the screener, failed to apply the respondent's selection criteria in making her screening decisions. However, although Milch did not employ the respondent's numerical scoring system, the record supports a conclusion that she did apply the respondent's selection criteria and weighted these criteria appropriately, and that these criteria were reasonable given the assigned duties and responsibilities of the subject position.

In addition, the complainant takes issue with Milch's conclusion that his resume was difficult to read, and with her conclusion as a result that it did not demonstrate the level of communication skills required of the position. However, a review of the complainant's resume, upon which the respondent relied in making the subject screening decision, confirms Milch's assessment.

Finally, the complainant appears to be arguing that the respondent's screening process had a disparate impact on white males in the protected age group, or on whites, on males, and on those over 40. 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 his claim of disparate impact discrimination necessarily fails as a result. See, Kaczmarek v. City of Stevens Point, ERD Case No. 200200370 (LIRC Aug. 12, 2003).

cc: Attorney Steven C. Zach

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uploaded 2003/10/22