GLENN A. SCHMOCKER, Complainant

COUNTY OF LACROSSE, Respondent A

AFSCME LOCAL 2482, Respondent B

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. Timely petitions for review were filed by both respondents.

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, except that it makes the following modifications:

Paragraph four of the ALJ's ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondents shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer or other person fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."

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

Dated and mailed March 31, 2004
schmogl . rsd : 110 :

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

This case involves staffing decisions in the Juvenile Detention Facility operated by La Crosse County. Staffing in the JDF was complicated by various rules of the Wisconsin Department of Corrections and Department of Health and Family Services concerning the gender of employees working in such facilities. The effect of these rules was that the County needed to have at least one female and one male youth care worker on duty at all times in the JDF.

Prior to January, 2000, the County and the Union had dealt with these complications on a somewhat ad hoc basis. This had involved taking sex into account in filling positions, as well as making adjustments in scheduling and assignment of duties to supervisors, to ensure that the requirements of the rules were satisfied.

In 1999 a female employee, Hellwig, bid on an open 3rd shift care worker position, but it was given to a less senior, male, bidder, because the County needed a male employee in that position at that time to meet the gender staffing requirements imposed by DOC and DHFS rules. Hellwig filed a grievance concerning this decision.

The County and the Union began negotiating in an effort both to settle Hellwig's grievance and also to develop a more systematic solution to the problems of staffing the JDF. The solution the County and the Union developed was one in which there was to be, for the first time, a clear and fixed designation of certain positions for employees of a certain sex. Specifically, there was to be one "male" care worker position and one "female" care worker position on each of the three shifts at the JDF. There was also to be one gender-neutral (undesignated) care worker position which would work a split shift rotating between 1st and 2nd shift. To settle Hellwig's grievance, the County and the Union agreed that in the initial filling of the 1st/2nd shift position, only females would be allowed to bid on the job. This would ensure that Hellwig would get the job if she bid on it, given her seniority. However, Hellwig eventually decided that she did not want that position and would not join in this agreement. Notwithstanding this, the County and the Union stayed with their plan to restrict the bidding for the initial filling of the 1st/2nd shift position, to females. This, they obviously reckoned, would draw a bidder from one of the regular shifts, which would then open up that position for others to bid on, which would then open up another position, etc., with the potential result that at some point an opening would arise on 3rd shift which Hellwig, because of her seniority, would be assured of.

As planned, the 1st/2nd shift position was posted as open to bidding only by females. Notwithstanding this, Complainant Glenn Schmocker bid on the position, but it was awarded to a female bidder who was junior to him in seniority. It is clear that Schmocker was denied the position solely because of his sex. This case concerns that denial.

The Act provides, in Wis. Stat. § 111.36(1), that employment discrimination because of sex includes

[d]iscriminating against any individual in promotion . . .where sex is not a bona fide occupational qualification.

The Act also provides, in Wis. Stat. § 111.36(2), that

[f]or the purposes of this subchapter, sex is a bona fide occupational qualification if all of the members of one sex are physically incapable of performing the essential duties required by a job, or if the essence of the employer's business operation would be undermined if employees were not hired exclusively from one sex.

The Respondents have relied on arguments invoking the bona fide occupational qualification exception. These arguments are not persuasive.

The provisions of the WFEA concerning sex as a bona fide occupational qualification must be understood as having reference to particular jobs. This is explicit in the language of § 111.36(2), which states "sex is a bona fide occupational qualification if all of the members of one sex are physically incapable of performing the essential duties required by a job" (emphasis added). It is also implicit from the evident purpose of the provision. It was obviously anticipated, that an employer might have some jobs as to which sex would be a BFOQ and others as to which it would not. It would make no sense whatsoever, though, to allow an employer to impose sex-based restrictions on hiring for all of its jobs, just because in some of those jobs sex was a BFOQ. Clearly, then, whether the BFOQ exception can be invoked has to be determined on a job-by-job basis.

As the ALJ concluded, sex was a bona fide occupational qualification for one youth care worker of each sex for each shift in the secure and non-secure sections of the JDF. This was recognized by and reflected in the staffing structure developed by the County and the Union, in which there was to be, for each of the two wings of the JDF, one care worker position on each shift which would be male-only and one care worker position on each shift which would be female-only. However, sex was clearly not a bona fide occupational qualification for the particular job which was at issue here, the 1st/2nd (split) shift care worker position. Indeed, as the complainant argues in his brief, it is essentially impossible to argue a BFOQ defense for that position, given that the County and the Union specifically agreed to designate it as a gender-neutral position. The County and the Union cannot invoke the BFOQ exception as a defense of their direct and explicit discrimination based on sex in the (initial) filling of the gender-neutral 1st/2nd shift position because sex was not a BFOQ for that position.

The commission recognizes, that the reason the County and the Union decided to limit bidding on the 1st/2nd shift position to females was in order to set in motion a chain of personnel changes that would eventually open up a 3rd shift position that Hellwig could exercise her seniority to claim, thus providing her the position that her grievance had been seeking. It is argued from this that there should be no finding of discrimination, because the desire to settle Hellwig's grievance is a legitimate, non- discriminatory reason. This argument is also unpersuasive. Even assuming that the ultimate goal was simply the settlement of Hellwig's grievance, the method chosen to reach that goal (allowing only females to bid for the 1st/2nd shift position) was itself direct, express, intentional sex discrimination.

The County argues that the ALJ's decision was premised on a mistake of fact about Hellwig's rejection of the agreement to settle her grievance, because (the County asserts), Hellwig gave every impression up until the last minute that she would go along with the agreement. The commission does not find this argument persuasive. Notwithstanding the County's assertion that it looked "up until the last minute" like Hellwig was going to join in the agreement between the County and the Union to initially post the 1st/2nd shift gender-neutral as open to females only, the record establishes that it had become clear that she was not going to do so, before the agreement between the County and the Union was approved by the County's Human Services Board, before the job was actually posted with the express limitation to female bidders, and before the bid by the complainant was rejected because of his sex. The chronology is clear. As the ALJ recognized, Hellwig refused to join in the agreement, but the County and the Union nevertheless went ahead with their plan to discriminate on the basis of sex in filling the 1st/2nd shift position, despite Hellwig's refusal, because they calculated that it would ultimately have the effect of causing a different position to open up for Hellwig which would satisfy what she was seeking in her grievance.

NOTE: Attorneys Fees - The commission's adoption (as modified) of the ALJ's findings, conclusions and order includes the adoption, unchanged, of his order with respect to attorneys fees. While Respondents raised certain objections to the fee request when the matter was being considered by the ALJ, they have not argued to the commission that the fees and costs allowed by the ALJ should be modified.

The commission makes no allowance for further attorneys fees connected to the briefing of this matter to the commission because, despite express instructions in the briefing schedule that the Complainant was to include any request for additional attorneys fees connected with the petition for review proceedings in his brief to the commission, no such request was made. The commission treats such a failure to request additional fees as a waiver thereof. See, Haas v. Sark (LIRC, Dec. 29, 1999).

cc: 
James G. Birnbaum, Attorney for Glenn Schmocker
Anna M. Pepelnjak, Attorney for La Crosse County
Bruce F. Ehlke, Attorney for AFSCME Local 2484

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