Wis.LIRC ER Decision: Estes, Janice - May 25, 2004 - Procedure - federal pre-emption, � 301 of the LMRA - claim not pre-empted wherechallenged decision did not rest on interpretation of collective bargaining agreement; Race discrimination, Age discrimination - merger of companies, employees' positions placed into new position classifications

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

JANICE M ESTES, Complainant

WISCONSIN GAS
d/b/a WE ENERGIES, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200200321, EEOC Case No. 26GA200860

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 makes the following:

FINDINGS OF FACT

1. Complainant's race is African-American and her date of birth is July 6, 1946.

2. Prior to 2001, complainant was employed by Wisconsin Gas Company in a position classified as a Senior Accounting Services Associate.

3. When Wisconsin Gas Company and Wisconsin Electric merged in 2001, a process was established through the collective bargaining process for classifying Wisconsin Gas positions that would become part of the merged company (WE Energies), utilizing the existing classification system for Wisconsin Electric positions. According to the language of the resulting agreement, this process would evaluate which existing Wisconsin Electric "occupation" or position classification encompassed work "comparable" to the work performed by the Wisconsin Gas position under review.

4. Based on information and analysis provided by Ruthann Gonzalez, complainant's supervisor, and Scott Lauber, manager of corporate accounting and budgeting, Gonzalez's second level supervisor, complainant's position was "mapped" to the Office Assistant III classification at the time of the merger in March of 2001.

5. Lee Yaggie, a younger (age 44) white employee, whose position, which had been classified at the same level as complainant's at Wisconsin Gas, was mapped to the higher level Accounting Analyst classification in the merged company.

6. Complainant objected to the mapping of her position to the Office Assistant III classification, and was asked to prepare a list of her job tasks so that further analysis could be conducted. Complainant prepared such a list in May of 2001. Utilizing this list, a meeting was conducted at which company and union representatives discussed each task listed by the complainant. After this discussion, the respondent and the union agreed that complainant's position would be mapped to the Office Assistant III level.

7. Complainant continued to object to the level to which her position had been mapped. As a result, complainant was provided the opportunity in September of 2001 to meet with representatives of management and the union, and with Mary Cook, one of respondent's classification and compensation experts, to explain in detail the nature of her duties and responsibilities prior to the merger.

8. As a result of this meeting, Cook concluded that complainant's duties and responsibilities were most comparable to those of positions classified at the Office Assistant III level, and that Yaggie's duties and responsibilities to those of positions classified at the Accountant Analyst level. Relying on Cook's conclusion, respondent conducted no further review of the decision to map complainant's classification to the Office Assistant III level.

CONCLUSIONS OF LAW

1. This complaint of discrimination is appropriately before the commission pursuant to Wis. Stat. § 111.39(5) of the Wisconsin Fair Employment Act (WFEA).

2. The respondent is an employer within the meaning of the WFEA.

3. The commission's subject matter jurisdiction over this complaint of discrimination is not preempted by operation of § 301 of the federal Labor Management Relations Act.

4. The complainant has the burden to prove that she was discriminated against on the basis of her age and race when she was mapped to the Office Assistant III classification.

5. The complainant has failed to sustain this burden.

ORDER

This complaint of discrimination is dismissed.

Dated and mailed May 25, 2004
estesja . rrr : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

Complainant alleges that respondent discriminated against her on the basis of age and race when it assigned or "mapped" her position to the Office Assistant III classification rather than the Accountant Analyst classification as a part of the merger of Wisconsin Gas and Wisconsin Electric in 2001.

Respondent argues not only that the complainant failed to prove the existence of any discriminatory animus on the part of those involved in the subject mapping decision, but also that complainant's WFEA claim is preempted by operation of § 301 of the federal Labor Management Relations Act (LMRA).

The commission has recognized that § 301 of the LMRA may operate to preempt a claim under the WFEA. In Atkins v. Pepsi-Cola General Bottlers, ERD Case No. 199550094 (LIRC Dec. 18, 1996), the complainant alleged that the respondent discriminated against him on the basis of race, and retaliated against him for engaging in a protected fair employment activity, when it established his starting rate of pay upon his appointment to a full-time position after working for the respondent in a part-time position for 10 years. The resolution of this dispute required the determination of when certain employees "[became]. . .regular full- time.hourly employees" within the meaning of the governing collective bargaining agreement. The commission decided, citing Lingle v. Norge Division of Magic Chef, 486 U.S. 399 (1988), and Seeman v. Universal Foods, ERD Case No. 8800779 (LIRC March 30, 1992), that, since resolution of the issue before the commission would require interpretation of the provisions of a collective bargaining agreement, Atkins' claim under the WFEA would be preempted by operation of § 301 of the LMRA.

In Seeman, supra., the complainant, as the result of a work injury, sustained a permanent partial disability and permanent medical restrictions. The complainant alleged that the respondent discriminated against him on the basis of disability when, despite his asserted ability to perform his normal work duties, it assigned him to the permanent light duty classification which, pursuant to the terms of the governing collective bargaining agreement, resulted in his compensation at less than the 100% level. The commission concluded that resolution of this discrimination claim rested on determining the sufficiency of the medical evidence and the employee's testimony regarding his ability to perform his normal job duties, and not on interpreting the provisions of the governing collective bargaining agreement, and that the WFEA claim was not, therefore, preempted by operation of § 301 of the LMRA.

Although recognizing that § 301 of the LMRA can operate to preempt a state fair employment claim, the commission shares the reluctance expressed by the courts to deprive an individual of substantive rights derived from an independent body of law such as WFEA. See, Seeman, supra.; Alexander v. Gardner-Denver, 415 U.S. 36 (1974); Miller Brewing Co. v. DILHR, 210 Wis.2d 26 (1997).

Although the process for mapping Wisconsin Gas positions was a creation of the collective bargaining process, the individual mapping decisions depended not on an interpretation of a contract term but instead on an expert analysis of the classification strength of the duties and responsibilities of each position. As such, the circumstances here are more closely comparable to those presented in Seeman, supra., than those in Atkins, supra. The commission concludes that the complainant's claim is not preempted by operation of § 301 of the federal LMRA.

Turning as a result to the merits of the complainant's charge of discrimination, the record supports a conclusion that she was not discriminated against as alleged. The complainant's contention is that Gonzalez and Lauber misrepresented the nature, scope, and complexity of her duties because of her race and age, and that this misrepresentation resulted in the respondent's mapping of her position to the lower classification level. However, the record shows that Cook's evaluation of the classification strength of complainant's position in September of 2001 was independently based on her application of the relevant classification criteria to the duties and responsibilities of the position as complainant herself described and illustrated them, and that this evaluation, respondent's final one, concluded that complainant's position was appropriately mapped to the Office Assistant III level. Complainant, who does not claim that Cook possessed any discriminatory animus, failed to sustain her burden to show that Cook was influenced to any extent by the alleged misrepresentations of Gonzalez and Lauber in completing this final evaluation.

Although the complainant alleged two other adverse actions in her charge of discrimination, i.e., her exclusion from staff meetings and the removal of certain higher level duties from her position after the mapping, she clarified during the course of the hearing that these were not separate allegations of discrimination but instead matters she was offering for their relevance to the mapping issue.

Complainant argues in her petition that she was deprived of an opportunity, because of the filing of simultaneous briefs with no opportunity to reply, to brief the federal preemption issue before the administrative law judge issued his decision. However, she was given full opportunity to brief the preemption issue to the commission and has done so.

cc:
Attorney Faye D. Boom
Attorney Lynne English

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