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780 National origin/ancestry discrimination
780.02(1) Finding of probable cause
Probable cause was found with respect to respondent’s decision not to assign the complainant to a three day weekend work pattern where the respondent failed to produce a copy of the posting of the vacancy, complainant's interest in that work pattern was well-known and respondent had contended it hired a non-foreign person from outside the institution because no existing employes had responded to the posting. No probable cause was found as to other reassignment decisions. Boyle v. DHSS, 84-0090, 0195-PC-ER, 9/22/87; modified 10/21/87
780.02(2) Finding of no probable cause
There was no probable cause to believe respondent discriminated against complainant on the basis of his age, national origin or ancestry and/or race with respect to providing him computer training where complainant, who was born in Mexico, was employed as the sole LTE in the office, there were insufficient computer stations for even the permanent employes and complainant had the lowest priority for training behind the permanent employes. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
There was no probable cause to believe respondent discriminated against complainant on the basis of his age, national origin or ancestry and/or race with respect to the decision to terminate his employment where complainant, who was born in Mexico, was employed as the sole LTE in the office, although respondent criticized complainant's work performance, he actually was terminated because there was a reduction in the workload. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
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 the decision not to hire the complainant where the successful candidates performed better than complainant on each part of the interview process. Acharya v. DOR, 89-0014, 0015-PC-ER, 11/3/89
No probable cause was found with respect to the decision to terminate the complainant from an LTE position where during the entire course of her employment, she failed to meet quantity or quality performance standards, required close and constant supervision and frequent retraining, she made the same errors repeatedly, she changed her work schedule without prior notice or approval and she took an excessive amount of leave. Acharya v. DOR, 89-0014, 0015-PC-ER, 11/3/89
No probable cause was found with respect to the decision to terminate the complainant's employment as a Data Entry Operator 1 where the complainant did not adequately respond to direction from her supervisors and was a disquieting influence on the work place. Certain misunderstandings did occur, likely based in part on complainant's imperfect English language ability, but there was no evidence of discrimination. Wilczewski v. DOR, 86-0113-PC-ER, 7/27/88
Where the complainant was denied promotion in 1975 by 9-1 vote of the Psychology Department, with a number of reasons cited for the decision, the department in 1977 changed the promotion review procedure so that an individual could no longer automatically advance his or her name for promotion review, but instead consideration required preliminary nomination by the tenured faculty, the complainant applied for promotion in 1977 and was not reviewed under the new procedure, and there was evidence of some personal differences between the complainant and some of the departmental faculty, no probable cause was found. Dasgupta v. UW-Eau Claire, 78-PC-ER-22, 2/19/80
780.03(2) Finding of no discrimination
Complainant failed to sustain his burden of establishing that a 10 day suspension constituted discrimination based on national origin or ancestry or retaliation for engaging in FEA activities where respondent believed that a coworker was genuinely upset by complainant’s comments and where complainant had a disciplinary history which included a letter of reprimand and a one-day suspension which also involved allegations of harassing or threatening conduct, even though the coworker’s reaction to complainant’s conduct was unreasonable. Zeicu v. DHSS [DHFS], 96-0043-PC-ER, 1/16/97
Complainant failed to sustain his burden of establishing that the decision not to select him for a temporary position constituted discrimination based on national origin or ancestry or retaliation for engaging in FEA activities where the successful candidate was better qualified and complainant’s work history included a five-day suspension. Even though the successful candidate also had received a five-day suspension, the nature of those offenses were not as serious as complainant’s in the context of the vacancy. Zeicu v. DHSS [DHFS], 96-0043-PC-ER, 1/16/97
No discrimination based on creed, sex or sexual orientation was found with respect to respondent’s actions of removing complainant from his position as program leader and setting the level of his pay in his backup position of associate professor, where concerns about complainant’s managerial abilities were heightened by receipt of an affirmative action complaint against complainant from one of complainant’s colleagues, and where respondent concluded that complainant’s leadership was not meeting program needs. Complainant’s comparisons relating to his salary claim involved circumstances that were distinctly different from those of complainant. Kinzel v. UW (Extension), 92-0218-PC-ER, 8/21/96
No discrimination was found on the bases of age, national origin/ancestry or sex, nor was FEA retaliation found, relative to the decision not to retain complainant as a faculty member in respondent's Industrial Engineering Department, where complainant did not complete her Ph.D. by the date to which she had contractually agreed and where respondent had concerns about complainant's teaching effectiveness, the evidence of which included routine student evaluations as well as a petition filed by a group of students with a dean. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
Where complainant alleged a pattern of verbal harassment on the basis of national origin but frequently initiated and participated in national origin-oriented banter and comments, and never complained of his treatment to higher level supervisors, he failed to establish a violation of the FEA. Complainant's claims that he was discriminated against on the basis of national origin with respect to equipment provided, and having been required to rewrite reports were also not established, because he was unable to demonstrate any pretext with respect to management's explanations for these matters. Romero v. WSFP, 90-0075-PC-ER, 6/23/94
Complainant's LTE employment as a security officer was terminated in connection with an off-duty incident where he was drinking, wearing a partial uniform and carrying a pistol in a tavern after closing hours, and subsequently became unruly in a contact with the Milwaukee Police Department. Complainant claimed his termination was based on national origin, but failed to show that he had been treated differently from any other officers, or that respondent's rationale for its action was in any way pretextual. Romero v. WSFP, 90-0075-PC-ER, 6/23/94
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 that 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
Even though 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
No discrimination was found with respect to the decision not to hire the complainant, a native of Afghanistan, where the complainant failed to show that the reason offered by the respondent -- that the successful candidate's qualifications were comparable to the complainant's but that the successful candidate provided a better response to the key interview question -- was pretextual. Wali v. PSC, 87-0081-PC, 87-0080-PC-ER, 4/7/89
780.04 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
Complainant failed to establish a prima facie case of failure to hire because of age, national origin or ancestry and/or race where complainant offered no evidence that a vacant position existed, that he applied for it, that he was certified and considered, that he was rejected, or that there were circumstances which gave rise to an inference of discrimination. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
The respondent's denial of a faculty exchange involving complainants, one of whom is of South African national origin, was not inferential of national origin discrimination where the respondent's objection to the exchange did not run to the complainants' national origin but to the fact that complainant Joubert was a faculty member at a university in South Africa and that complainant McFarland would be teaching in a South African institution. It was clear that respondent's decision was based on political and moral considerations, not on complainant Joubert's national origin. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/8/88
Where the parties had tried the case completely, the Commission proceeded on the assumption that complainant had established a prima facie case as to each issue, and, looking at all the evidence presented, analyzed each issue as to whether there was probable cause to believe discrimination occurred. Wilczewski v. DOR, 86-0113-PC-ER, 7/27/88
780.06 Statistical analysis
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
Simply establishing that a particular job group is underutilized for ethnic/racial minorities is insufficient to show that the hiring process utilized to fill positions within this job group has a disparate impact on these minorities. The use of an all-white, all-male screening panel is not sufficient in and of itself to demonstrate that the screening process had a disparate impact on minority candidates. 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
Complainant failed to establish pretext in a nonselection case where the statistics included those minority candidates who were certified for appointment but did not reflect the number of candidates who dropped out of consideration and his analysis of the statistics failed to indicate how many times minorities were competing against each other for a single position. Wali v. PSC, 87-0081-PC, 87-0080-PC-ER, 4/7/89
Complainant's statistics showing the various numbers of minorities who applied, were certified, hired, passed probation as well as failed probation had little probative value in the absence of any comparison between hiring and retention rates for minority employes versus nonminority employes and in light of the small sample size. Boyle v. DHSS, 84-0090, 0195-PC-ER, 9/22/87; modified 10/21/87
780.10 Disparate impact
Simply establishing that a particular job group is underutilized for ethnic/racial minorities is insufficient to show that the hiring process utilized to fill positions within this job group has a disparate impact on these minorities. The use of an all-white, all-male screening panel is not sufficient in and of itself to demonstrate that the screening process had a disparate impact on minority candidates. 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
The Commission rejected the complainant's theory of disparate impact with regard to the application of a post-certification screening criterion where the ultimate result of the application of the criterion was that none of the ethnic/racial minority candidates were screened out. Balele v. DOA & DMRS, 88-0190-PC-ER, 1/24/92
Disparate impact analysis may not be extended to an employer's non-personnel oriented business decisions covering such things as where to do business and how to deploy capital, which will have obvious effects, and perhaps even disparate impacts, on its employes. The respondent's decision to deny a faculty exchange proposal which was based on a program decision not to engage in intercourse with a South African institution is not susceptible to analysis under the disparate impact model of discrimination. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/8/88
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.