JAMES SAMOLINSKI, Complainant

MILWAUKEE COUNTY, Respondent

The Complainant, a white male, filed a charge of discrimination with the Equal Rights Division on January 29, 1985, alleging that as recently as August 1984 and continuing, he has been denied overtime assignments, placed on undesirable shifts and given low preference in his vacation choices because he had not received adjusted seniority retroactive to the date of his application with Respondent as had class members in a consent decree issued by Judge Myron L. Gordon of the United States District Court for the Eastern District of Wisconsin in the case of Johnnie G. Jones, et al. v. Milwaukee County, et al., Case No. 74-C-374 (March 10, 1980).

The Complainant, who was not a party to the Jones proceeding, asserted in his complaint that he did not feel that the consent decree had to be abrogated in any way, but he believed he should get adjusted seniority since he was an innocent party adversely affected by the consent degree.

Following an Initial Determination of no probable cause, a probable cause hearing was held on March 13, 1986. An administrative law judge (ALJ) subsequently issued a decision finding probable cause to believe that the Complainant had been discriminated against on the basis of his race, and remanded the matter for conciliation.

Conciliation was unsuccessful and the matter was ultimately noticed for a March 17, 1988 hearing on the merits. However, due to the similarities between Samolinski's complaint of discrimination and a complaint filed by Timothy Wolterstorff against Milwaukee County which was pending before the Commission, the March 17, 1988 hearing was cancelled in anticipation that the Commission's decision in the Wolterstorff case would be controlling in Samolinski's case.

On March 29, 1988, the Commission issued its decision in the Wolterstorff case, concluding that the Commission could not exercise jurisdiction over Wolterstorff's complaint because it constituted an impermissible collateral attack against the consent decree entered in the Jones case. Viewing the Wolterstorff case as fully applicable and controlling, an ALJ for the Equal Rights Division thereafter issued a decision on April 14, 1988, dismissing Samolinski's complaint.

The Complainant subsequently filed a timely petition for Commission review of the matter and a briefing schedule was issued pursuant to a request by the Complainant. During the midst of the briefing schedule, the parties agreed to have the case held in abeyance based upon the possible impact that Martin v. Wilks, __ U.S.__, 49 FEP Cases 1641 (1989), which was then before the United States Supreme Court, might have on the issue presented in the case. Wilks having been decided and its impact having been argued by the parties, Complainant Samolinski's charge of discrimination is now ready for resolution by the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission hereby issues the following:

1. The Complainant began employment with the Respondent on June 10, 1974, as a seasonal laborer. In the spring of 1980 he received a regular appointment as a laborer, with a seniority date of February 19, 1980.

2. In September, 1974, the case of Johnnie G. Jones, et al. v. Milwaukee County, et al., (Case No. 74-C-374) began when a complaint was filed under Title VII of the Civil Rights Act of 1964 alleging unlawful discriminatory practices with respect to employment, transfer and promotion of black and other minority persons in the classified service of Milwaukee County. The court later declared the action maintainable as a class action, and the class was defined as follows:

All black, Spanish-surnamed, and American Indian persons who are capable of performing, or of being trained to perform, the work in positions in the classified service of Milwaukee County, and who have been denied employment in or transfer or promotion to, or who have been discouraged from applying for employment in or transfer or promotion to, such positions because of their race or national origin.

3. During litigation of the Jones case Judge Gordon issued a decision on May 1, 1979 (20 FEP Cases 314), granting the plaintiffs' motion for partial summary judgment that Milwaukee County's hiring and promotional practices in various classified service title positions were in violation of Title VII. Judge Gordon held, among other things, that the Respondent Milwaukee County had discriminated against minority-group persons in employing persons in service/maintenance positions (which includes the position of laborer, a pay range 10 position), even though minority-group persons were represented in such jobs in proportion to their percentage of the county's population (12.1% per 1970 census), because the unrebutted evidence established that minority-group persons were disproportionately concentrated in the lowest pay ranges and received promotions at a disproportionately lower rate. Judge Gordon's decision noted that the service/maintenance position includes pay ranges of 3-21 (3 being lowest) and that, although most of the positions required no formal education or technical skills, minorities were concentrated in the lowest paying positions and received promotions at a disproportionately lower rate. For instance, in the appendix to his decision Judge Gordon noted that as of February 1975, 59% of all minorities in the service/maintenance category (194/330) held positions in the lowest pay range compared to only 19% of all whites holding such positions; further, that 80% of all minorities (263/330) held positions at or below pay range 9, while only 35.8% of the non-minorities held similar positions. Judge Gordon found that this job category had 1,181 positions at or above pay range 10, but that minorities held only 67 (5.7%) of them. Additionally, with respect to promotion, the court found that the disproportionate concentration of minorities in lower paying positions was, to a large extent, attributable to discrimination in promotional titles. The court noted, for example, that on September 5, 1974, the date the action was commenced, at least 52 position titles in the service/maintenance category were filled only by promotion and that in February 1985, these 52 position titles included 650 positions, of which minorities filled 42 (6.5%) positions.

4. Since there were no special qualifications for the majority of the service/maintenance jobs, the disproportionately low percentage of class members at or above a pay range 10 position cannot be explained on the ground that this was caused by a dearth of qualified nonwhite applications. E.g., see Wards Cove Packing Co., Inc. v. Antonio, U.S. , 49 FEP Cases 1519 (1989).

5. The Jones case culminated with the consent decree issued by Judge Gordon on March 10, 1980. The consent decree provided the defined class members various make-whole relief which included the following provisions:

III. HIRING AND PROMOTION RELIEF

A. Hiring and Promotion Goals

52. Except as otherwise provided in this consent order for position titles in the skilled crafts, officials/administrators, and professionals categories, class members shall be appointed to every second regular appointment (R.A.) vacancy in each position title (as re-defined for purposes of this consent order) until the percentage of class members in the position title is equal to the goals established. After the goal is reached in a particular position title, class members shall be appointed in accordance with paragraph 71 of this consent order with respect to validation or elimination of disparate impact.
. . .
(4.) Service/maintenance goals

62. Except as otherwise provided in this paragraph, until December 31, 1985 the goal for each position title in the service/maintenance category shall be 16.0% and thereafter shall be the percentage of minorities in the Milwaukee County population (whether greater or less than 16.0%) according to the 1980 census.
. . .
71. After defendants reach the goal established for any position titles by paragraphs 51-70 of this consent order, defendants shall thereafter select employes for that position title only by means of tests, criteria, or other selection procedures

(a) which have no adverse impact on class members, or

(b) which the parties agree or the court determines have been validated in accordance with the Uniform Guidelines on Employe Selection Procedures, 43 Fed. Reg. 38290 (August 25, 1978).

. . .

IV. SENIORITY

74. Class members shall be given seniority for all purposes (other than pension credits and accrual of vacation, sick allowance and. personal days) retroactive to March 24, 1972 for all persons submitting a written application between March 24, 1970 and March 24, 1972, and to the date of submitting a written application for all other class members submitting a written application between March 25, 1972 and the date of the final court approval of this consent order. . . (Emphasis added.)

6. The parties to this case have made the following stipulations: (1) that the class members to the consent decree in the Jones case have, pursuant to paragraph 74 of the decree, been given adjusted seniority dates which give them earlier seniority dates than Samolinski even though hired after him; and (2) that in all areas in which the Complainant claimed that he had been discriminated against, including layoff (no actual layoff occurred, however), overtime opportunities, shift preference, promotion, vacation selection and transfer opportunities, the Respondent gave preference to any class member who, pursuant to the consent order, was given an adjusted seniority date that was earlier than the seniority date of the Complainant.

7. The Respondent has asserted that it is required to comply with the mandate of the court as set forth in the Jones case, and therefore has sought to interpose the consent decree as a defense against the Complainant's claim.

8. In Martin v. Wilks, U. S. , 49 FEP Cases 1641 (1989), the Supreme Court affirmed the Eleventh Circuit's decision in In re Birmingham Reverse Discrimination Employment Litigation, 833 F.2d 1492, 45 FEP Cases 890 (1987), holding that white firefighters who were not parties to the employment discrimination action that resulted in two consent decrees could challenge employment decisions taken pursuant to the decrees and rejecting the argument that the collateral attack doctrine barred those who failed to intervene in the action resulting in the consent decree from bringing a new action to challenge decisions made under a decree. Based on Wilks the Complainant is not barred from bringing the instant action.

9. However, Birmingham Reverse Discrimination Litig., supra, also provided guidance as to the legal significance of a consent decree in Title VII litigation when an employer seeks to interpose a consent decree as a defense against an employe who was not a party nor privy to it. Citing the earlier Supreme Court decisions in Johnson v. Transportation Agency, 480 U.S. 616, 107 S.Ct. 1442, 43 FEP Cases 411 (1987), and United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 20 FEP Cases 1 (1979), where a public and private employer, respectively, under voluntary affirmative action plans took sex and race into account in making employment decisions (promotion and selection for entry into a craft training program), the court stated that an employer utilizing a consent decree as a defense had to prove that consideration of race was: (1) justified by the existence of a manifest imbalance that reflected underrepresentation of minorities in traditionally segregated jobs, but the manifest imbalance need not be such that it would support a prima facie case of discrimination; and (2) the decree must not unnecessarily trammel the rights of non-minority employes or create an absolute bar to their advancement.

10. Under the two-part inquiry utilized to evaluate the legitimacy of affirmative action plans, the consent decree herein withstands the collateral attack made by Complainant. First of all, in Jones it was found that the Respondent had discriminated against minority-group persons in their employment to service/maintenance. positions because the unrebutted evidence established that minority-group persons were disproportionately concentrated in the lowest pay ranges (3-9) and had received promotions at a disproportionately lower rate. Secondly, the rights of the Complainant herein have not been unnecessarily trammeled. The consent decree does not require the discharge of any white worker nor does the decree create an absolute bar to the advancement of white employes. Under the consent decree class members are to be appointed to every second regular appointment vacancy until the percentage of class members in the position title is equal to the goals established. Thus, the decree did not create an absolute bar to the advancement of non-minorities. Moreover, it is only a temporary measure intended to eliminate manifest racial imbalances in the employment of blacks and other minorities.

1. The Respondent is an employer within the meaning of the Wisconsin Fair Employment Act.

2. The Respondent's actions taken pursuant to the Jones consent decree were justified by the existence of a manifest imbalance that reflected underrepresentation of minorities in traditionally segregated jobs, and such actions did not unnecessarily trammel the rights of the Complainant or create an absolute bar to his advancement.

3. The Complainant has failed to establish that the Respondent's actions constituted illegal race discrimination under the Wisconsin Fair Employment Act.

That the complaint in this matter be dismissed.

Dated and mailed January 5, 1990

/s/ Kevin C. Potter, Chairman

/s/ Carl W.Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

Commenting on the majority's decision to allow challenges to employment decisions taken pursuant to consent decrees, the dissent in Wilks states in a footnote that "[i]n addition to undermining (the) interest in finality, permitting collateral attacks also leads to the anomaly that courts will, on occasion, be required to sit in review of judgments entered by other courts of equal -- or even greater -- authority. Id. at U.S. , 49 FEP Cases 1641, 1652, n. 21. The anomaly referred to by the dissent is certainly evident here where the Commission, which administers the state's Fair Employment Law, is required to review the judgment (consent decree) issued by a federal court.

Nevertheless, after examining the Jones litigation and the consent decree resulting therefrom, the Commission concludes that under the two-part inquiry set forth in Birmingham Reverse Discrimination Litig., 833 F.2d 1492, 45 FEP Cases 890 (1987), the Respondent's compliance with the mandate of the Jones consent decree did not result in illegal race discriminaticn against the Complainant in violation of the Wisconsin Fair Employment Act.

The Commission and courts of Wisconsin have looked to federal employment discrimination decisions for guidance in interpreting the state's Fair Employment Law. Such guidance is provided in In re Birmingham Reverse Discrimination, supra, where the court declared that when an employer seeks to interpose a consent decree against claims of unlawful (reverse) discrimination the employer had to prove that consideration of race was: (1) justified by the existence of a manifest imbalance that reflected underrepresentation of minorities in traditionally segregated jobs; and (2) the decree must not unnecessarily trammel the rights of non-minority employes or create an absolute bar to their advancement. The Complainant had suggested that a determination of these issues necessitated a remand of the matter for further hearing, but the Jones case and the consent decree itself convincingly establish that the Respondent passes this two-pronged test.

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