Wisconsin Personnel Commission's             Digest of Decisions        March, 1999 Version

Sections 770 through 770.04

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770  Discrimination based on color


770.02(1) Finding of probable cause

Probable cause was found where complainant, who is black, was discharged for receiving and possessing marijuana during work time where complainant was arrested but no charges were pursued, and where respondent took no disciplinary action against a white male co-worker despite having no doubts that the co-worker had been smoking marijuana on the job. Massenberg v. UW-Madison, 81-PC-ER-44, 9/14/84

770.02(2) Finding of no probable cause

Respondent's imposition of a post-certification screening criterion to reduce the number of candidates to be interviewed was upheld where the application of the criterion was consistent with applicable requirements and practices and where the respondent ultimately concluded that complainant satisfied the criterion. Balele v. DOA & DMRS, 88-0190-PC-ER, 1/24/92

The absence of a racial/ethnic minority on the interview panel was not evidence of pretext where there was a female on the panel and females were underutilized in the job group of which the position was a part. Balele v. DOA & DMRS, 88-0190-PC-ER, 1/24/92

The failure to employ written benchmarks or to score responses to interview questions did not demonstrate pretext where the interviewers took notes and after the interviews, the interviewers had a clear idea of who the top candidates were and agreed on the ranking. Respondent's failure to locate one of the interviewer's notes did not demonstrate pretext where the interviewer recalled the impressions she formed as a result of the interviews and another candidate was clearly much better qualified for the subject position. Balele v. DOA & DMRS, 88-0190-PC-ER, 1/24/92

No probable cause was found with respect to an allegation of an abusive work environment allegedly resulting in the complainant's constructive discharge in 1988 where the allegation rested on two incidents, one occurring in 1979 and the other in 1986. The Commission found that the 1986 incident was arguably related to complainant's race and, although offensive, was isolated in time and the respondent took reasonable steps in responding to the incident. Complainant failed to show that the incidents were pervasive, sustained or numerous. Yarbrough v. DILHR, 88-0103-PC-ER, 2/22/90

No probable cause was found with respect to the issuance of a written reprimand which was later withdrawn where the complainant failed to introduce any evidence relating to whether the actions for which he was reprimanded merited a reprimand. Yarbrough v. DILHR, 88-0103-PC-ER, 2/22/90

No probable cause was found with respect to a memo instructing the complainant to complete a certain assignment by a certain date where the assignment was equivalent to those given other employes with similar responsibilities and the deadline was reasonable. Yarbrough v. DILHR, 88-0103-PC-ER, 2/22/90

No probable cause was found as to the decision not to select the complainant for a vacant permanent position of English teacher, where the successful candidate had a higher score on the questionnaire and complainant, who had been filling the position as an limited term employe, had an inferior job reference based on respondent's first-hand knowledge of complainant's work performance. Browne v. DHSS, 85-0072-PC-ER, 8/5/87

No probable cause was found as to claims relating to discharge and providing negative job references where complainant's employment as a limited term employe ended when complainant used compensatory time to finish the 1044 hour maximum of his LTE appointment and respondent's references were based on complainant's poor work record. Browne v. DHSS, 85-0072-PC-ER, 8/5/87

No probable cause was found as to allegations of discrimination based on color, handicap and race, where complainant's employment was terminated based on his unsatisfactory work performance due to consistent failures to meet deadlines for the completion of assignments. Johnson v. DHSS, 83-0032-PC-ER, 1/30/85

770.03(1) Finding of discrimination

Respondent's action of discharging the complainant, a black female, from her position as a correctional officer for engaging in disorderly or illegal conduct and failing to provide accurate or complete information when requested constituted discrimination where complainant worked in a sexually and racially hostile environment, respondent decided to discharge the complainant before it had conducted its fact-finding investigation and white male employes, disciplined under the same personnel policy, were treated less harshly than complainant. Bridges v. DHSS, 85-0170-PC-ER, 3/30/89

770.03(2) Finding of no discrimination

No discrimination occurred when respondent did not hire complainant, who is black and had previously filed a race discrimination claim against respondent, for a limited term carpenter job where no authorization to hire had been received as of the date complainant reported for work. A second applicant, who was white, was also not hired on that date, although the second applicant did get hired on a later date. Weaver v. UW-Madison, 93-0022-PC-ER, 11/3/94

Respondent did not discriminate against complainant, a Native American, based on his race, color, and national origin or ancestry when it failed to hire him for one of eleven vacancies where, even though complainant produced statistical evidence that respondent underutilized minorities, there was no evidence of irregularities in the hiring procedure, the same interview questions were asked of all candidates, the exams were designed to measure job-related criteria, all candidates were evaluated against the same rating guidelines and complainant received a score lower than the successful candidates. Thunder v. DNR, 93-0035-PC-ER, 5/2/94

Complainant failed to establish that his impressions of certain work-related incidents involving individuals who had input into the subject hiring decision demonstrated racial animus on their part, but instead the record showed complainant perceived any differences about work-related matters with his white supervisors and other whites with authority as based on racial animus. The complainant also failed to show that his relevant qualifications were superior to those of the successful candidate. Balele v. UW System, 91-0002-PC-ER, 3/9/94; affirmed by Dane County Circuit Court, Balele v. George et al., 94 CV 1177, 2/17/95

Respondent's decision to place complainant on a concentrated review program was not discriminatory where respondent verified that complainant was backlogged in her work and performance standards were established for all staff, not just for complainant. Iheukumere v. UW-Madison, 90-0185-PC-ER, 2/3/94

While the only two black members of complainant's training class were terminated during their probationary periods, complainant's termination was upheld where the record contained numerous specific observations by numerous individuals of unsatisfactory performance by complainant and complainant failed to address any but a few of the observations other than by generally testifying that he was a good employe who worked hard. The Commission rejected complainant's suggestion that because his work performance did not include any illegal activities, it should have been regarded as satisfactory. Green v. DHSS, 92-0237-PC, 12/13/93

Complainant, who is black, was terminated from the State Patrol Academy on the basis of failing to obtain a passing grade on his notebooks. This rationale was not shown to have been pretextual. While the black training officer gave him a passing grade on his first notebook and the two white training officers gave him much lower, failing grades, all three of their scores were relatively consistent in failing complainant on the next two notebooks. There was no evidence that the black training officer was influenced to lower her grades for the last two notebooks, and there was no evidence that the two white training officers used any different approach to grading complainant's notebooks than they did to grading the other cadets, and they also failed some of the white cadets. Complainant's contention that he was terminated prior to the computation of his final grades, in violation of Academy policy, carried no weight because once it was clear that he could not obtain a passing grade on his notebooks he was subject to dismissal without waiting for his final grades. Complainant also argued he was not permitted to submit a typewritten corrected notebook, while no white cadets were similarly restricted. However, this action was taken because complainant admitted he had not done the typing himself, and Academy policy required that cadets do all their own work. There was no basis for a conclusion that this policy was not also applied to white cadets. Complainant also cited as evidence of pretext the fact that he had been reported for playing basketball when some of the other cadets were working on academics, but there was no mention of the fact he also played tennis. However, complainant had been counseled specifically concerning his academic problems, and subsequently was observed doing something else (playing basketball) when he could have been working on his academics. This observation was made by all three training officers when they were playing tennis. Owens v. DOT, 91-0163-PC-ER, 8/23/93

Even though the respondent stipulated that the limitation of recruitment for two positions to only those applicants with Career Executive status had a disparate impact upon minorities including complainant, complainant failed to establish that he would have been hired for either of the positions if he had been allowed to compete for them. Balele v. DHSS & DMRS, 91-0118-PC-ER, 4/30/93

770.04 Prima facie case

Typically, statistical evidence is utilized in disparate impact actions to establish a prima facie case of unlawful discrimination. Complainant failed to establish a prima facie case in a disparate impact analysis where the only statistical evidence presented was that the position at issue was in the Executive/Administration/Manager job group, which consisted of 7 positions, that 8.76% of the qualified and available labor pool were minorities, and that none of the positions were filled by minorities. Balele v. UW System, 91-0002-PC-ER, 3/9/94; affirmed by Dane County Circuit Court, Balele v. George et al., 94 CV 1177, 2/17/95


While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.

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