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784 Race discrimination
784.01 Generally
Complainant’s attempts to attribute management’s complaints against her to racism were undermined by the fact that the person who did the bulk of the investigation as well as the person who fired her were the same race as complainant. Mitchell v. DOC, 95-0048-PC-ER, 8/5/96
The fact that the appointee for the subject position was Asian is a factor weighing against finding pretext with respect to a complaint filed by an unsuccessful black applicant, but it is not ipso facto inconsistent with discrimination against a black applicant. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
784.02(1) Finding of probable cause
Probable cause was found where the overall qualifications of the complainant, who is black, were, at least on paper, far better than those of the ultimate appointee, an Asian, and the respondent's only enunciated reason for the appointment, the successful candidate's background in connection with a particular aspect of the job, was completely undercut by the complainant's strong showing of at least a comparable background in that area. No probable cause was found as to a second selection decision. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
There was probable cause to believe that respondent discriminated against the complainant, who was white, in utilizing expanded certification pursuant to an affirmative action plan which was not legitimate because it was based on statewide minority population and did not meet statistical standards developed for proving disparate impact and because it was inconsistent with applicable statutory requirements. Paul v. DHSS & DMRS, 82-156-PC & 82-PC-ER-69, 6/19/86
Probable cause was found where appellant who is black, was discharged for receiving and possessing marijuana during work time, where appellant was arrested but no charges were pursued and where respondent took no disciplinary action against a white male coworker 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
Probable cause was found where respondent deviated from its stated position selection process by incorporating an unsolicited and negative assessment of complainant, who is black, and by initially screening out the complainant because he was "overqualified" but not screening out a white male with a comparable background. Welch v. UW-Oshkosh, 82-PC-ER-44 and 82-122-PC, 4/5/84
784.02(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 decisions not to select the complainant for either of two vacancies where the successful candidates were better qualified for the positions and one of the two persons hired was of the same race as the complainant. Cozzens-Ellis v. UW-Madison, 87-0070-PC-ER, 2/26/91
No probable cause was found with respect to the decision not to create a new position for which the complainant would likely have been a candidate where, even though there were some anomalies, the respondent's staffing pattern did not provide for such a position. Harris v. DILHR, 86-0021, 0022-PC-ER, 2/22/90
No probable cause was found with respect to the decision not to promote the complainant, an Unemployment Benefit Specialist 2, for a vacant UBS 4 position where the appointing authority had, without exception since 1985, only promoted persons to the UBS 4 level who were already UBS 3s. Reclassification from UBS 2 to 3 was premised on passing a review of the quality of work performed while employed as a UBS 2. Others who were not in the same protected category as the complainant were similarly treated. There was insufficient evidence to conclude the the quality review process was itself discriminatory where the record contained no information as to the passing rate for minorities and non-minorities. Harris v. DILHR, 86-0021, 0022-PC-ER, 2/22/90
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 where the deadline was reasonable. Yarbrough v. DILHR, 88-0103-PC-ER, 2/22/90
No probable cause was found with respect to terms and conditions of employment where there was no evidence to suggest that charges against the complainant were pretextual or that complainant was harassed into resigning where the respondent could easily have discharged the complainant earlier in his employment and the discharge would have been consistent with the normal disciplinary process. Sheridan v. UW-Madison, 86-0103-PC-ER, 87-0141-PC-ER, 2/22/89
No probable cause was found with respect to a decision to terminate the complainant's employment as an LTE where the respondent had concluded, based on a reasonable though not foolproof procedure for checking on the complainant's presence at various times during the work day, that the complainant had been falsifying his hours. Pugh v. DNR, 86-0059-PC-ER, 9/26/88
No probable cause was found with respect to the decisions to issue complainant a written reprimand, suspend him and discharge him, as well as to certain conditions of employment where complainant repeatedly called in sick, left work and ultimately failed to appear at work. Rose v. DOA, 85-0169-PC-ER, 7/27/88
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 a 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 the decision not to select the complainant, who was black, where the person appointed was also black and had been listed as the number two, or back-up candidate when the position had been filled just two months earlier. However, probable cause was found as to the original selection decision. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
The Commission found no probable cause as to complainant's claim of discrimination based upon respondent's decision not to reclassify his position from Engineering Technician 3 to Engineering Technician 4, where appellant, who is black, failed to meet the requirements for reclassification and presented little evidence on disparate treatment. Ellis v. DOT, 83-0137-PC-ER, 4/30/86
The complainant failed to establish a prima facie case regarding her claim that respondent discriminated against her by not recalling her after layoff where none of the laid off employes was recalled and no vacancy occurred for which complainant was entitled to recall. Mitchell v. UW-Milwaukee, 84-0170-PC-ER, 4/4/86
No probable cause was found with respect to a selection decision for an investigator position in the Wausau area where the successful candidate, who did not have a conviction record, had a wider range of and a great deal more relevant experience than complainant who had a conviction record. No pretext was demonstrated where during the complainant's interview, one interviewer stated that complainant's experiences due to his status as an ex-offender were less useful in the Wausau area where most crimes were committed by "white farm boys" and the other interviewer stated he was not generally impressed with the work of "jailhouse lawyers", and where the interviewers were acquainted with the successful candidates prior to the interview and prior to the certification. Brownlee v. State Public Defender, 83-0107-PC-ER, 12/6/85
No probable cause was found as to the decision to terminate the complainant's employment while on probation where the complainant was chronically late for work even after having been warned and where the evidence showed that the respondent treated the various employes alike, regardless of their race. Gray v. DHSS, 83-0132-PC-ER, 10/23/85
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
No probable cause was found as to decision not to reappoint complainant to the position of Coordinator of Black Student Services. Complainant failed to establish a prima facie case where evidence showed he did not satisfy the normal performance requirements for the position, where approximately 80% of the unclassified academic staff employes were rated above the complainant even though complainant's performance was rated "well within" the acceptable range and where complainant's replacement was also a black person. Davis v. UW-Stout, 82-PC-ER-129, 1/17/85
No probable cause was found where complainant introduced no evidence of discrimination. Berryman v. DHSS, 81-PC-ER-53, 8/1/84
For a complaint arising out of a hiring decision, no probable cause was found where the successful candidate and the complainant had generally equivalent work experience and the content of their respective answers during the oral interview were approximately equal but where the successful candidate's manner of presentation was more "dynamic" and indicative of the supervisory traits necessary for the position. A prior designation of the successful candidate to fill the position on an acting basis did not indicate pretext. Meyett & Rabideaux v. DILHR, 80-PC-ER-140, 81-PC-ER-2, 4/15/83
No probable cause was found with respect to the probationary termination of a white female Institution Aide by a black male supervisor, where the record clearly supported the finding that the complainant's work was unsatisfactory, the record included the testimony of many of her white, female co-workers, and this testimony overshadowed the fact that her Performance Planning and Development Report reflected that she had met certain objectives. Shilts v. DHSS, 81-PC-ER-16, 2/9/83
No probable cause was found where the complainant was not appointed to fill a vacant Offset Press Operator 2 position, and although the complainant had not had recent experience with the press used for the performance test, it was the only press on which all 3 applicants had had some experience, and the complainant scored significantly lower on the performance test. McCrae v. UW-Milwaukee, 81-PC-ER-99, 2/7/83
No probable cause was found where the complainant was terminated by the UGLRC, and the only substantial evidence of discriminatory animus attributable to the Governor's alternate to the UGLRC was based on the testimony of two long-time political opponents of the alternate whom the examiner believed were lacking in credibility. McLester v. UGLRC, 79-PC-ER-38, 10/14/82
No probable cause was found on the issue of race discrimination with respect to respondent's failure to hire the complainant in the misdemeanor unit of respondent's adult criminal division due to the absence of evidence to show a pattern of racial discrimination, the relevant labor market, or general policies and practices of racial discrimination. Taylor v. State Public Defender, 79-PC-ER-136, 8/5/82
784.03(1) Finding of discrimination
Complainant, a non-minority, was certified for a position. The person who ultimately was appointed was a minority who became eligible on the basis of an expanded certification that concededly was illegal because a valid workforce analysis had not been conducted in accordance with §230.03(4m), Stats. The illegal use of expanded certification in this manner violated complainant's right, under the FEA, to have been considered for this position without consideration of race except in the context of valid affirmative action considerations, and the latter were not present here. That respondents may have been acting in good faith reliance on existing policies and did not have a specific intent to discriminate against complainant on the basis of his race is not a recognized defense in cases involving selection decisions made pursuant to illegal affirmative action plans. Paul v. DHSS & DMRS, 82-PC-ER-69, 3/30/93
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
Respondent discriminated against the complainant by placing him third rather than second on the final hiring list where respondent relied on an affirmative action plan which was inconsistent with the statutory definition of "balanced work force" when it moved a minority candidate from third to first on the hiring list. Holmes v. DILHR, 85-0049-PC-ER, 4/15/87
A race-conscious promotion under an affirmative action plan which was part of an effort to reach a balanced work force was not in compliance with §230.03(rm), Stats., because the plan did not determine the rate of representation of minorities in "that part of the state labor force qualified and available for employment in such classification" but rather based the finding of underutilization on a comparison to the minority percentage of the total state population. Because race was the determinative factor in the decision to appoint a candidate certified via expanded certification rather than the complainant, respondent discriminated against the complainant based on race. The Commission did not accept respondent's arguments of harmless error, i.e., that if the proper labor force analysis had been performed, the same result would have occurred. Kesterson v. DILHR & DER, 85-0081-PC, 85-0105-PC-ER, 12/29/86
Where the complainant, who had been discharged, was guilty of some misconduct but established that he had been more harshly treated than similarly-situated white employes, and the respondent's stated reason for having failed to discipline a white employe with a comparable record of missed call-ins was that that employe was handicapped due to Agent Orange exposure, and the employe denied a handicap or that he had suggested such a handicap, the stated reason was found to be pretextual and it was determined that discrimination had occurred. McGhie v. DHSS, 80-PC-ER-67, 3/19/82
784.03(2) Finding of no discrimination
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to assign complainant additional job duties where complainant was the logical staff member to assume the duties and complainant indicated she would "be happy" to do so. King v. DOC, 94-0057-PC-ER, 11/18/98
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to move complainant to another work station where complainant was the lowest classified/least senior employe in the work unit and the other options would not have accomplished the same goals. King v. DOC, 94-0057-PC-ER, 11/18/98
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to deny complainant's request for leave on a specific date where complainant was already scheduled to participate in a meeting on the day in question. Respondent's subsequent decision not to permit complainant to use accrued leave after she walked out of the meeting was also justified and not discriminatory where it is respondent's practice not to approve leave when an employe walks off the job without authorization. King v. DOC, 94-0057-PC-ER, 11/18/98
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to reprimand complainant for walking off the job without authorization. Complainant had been warned at the time that walking off the job would have a consequence, and complainant had violated several earlier directives. King v. DOC, 94-0057-PC-ER, 11/18/98
There was no basis for concluding there was anything questionable about the rating panel's evaluation of complainant's Achievement History Questionnaire materials where the complainant had been instructed to submit a two page AHQ addressing four factors, complainant, alone among the applicants, submitted four pages, and the specialist administering the selection process removed two pages after deciding it would be inappropriate and unfair to evaluate complainant on the basis of all four pages. The rating panel evaluated the two pages of complainant's materials and appropriately assigned him a score below the passing level. Complainant's race discrimination and retaliation claims failed. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
It was in keeping with the civil service code and other evidence of record that existing career executives would be certified for consideration in filling a vacant career executive position, without having to go through an examination process. The selection process for the position was conducted on an "Option IV" basis under the career executive program. Applicants who were not career executives were evaluated on the basis of an Achievement History Questionnaire. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
An employer's failure to follow its own policies can be probative of pretext. Where the staffing manual called for the use of "blind" scoring procedures whenever possible, and there was no apparent reason why applicants' names were not deleted from the resumes they submitted as part of their Achievement History Questionnaire, this could constitute some evidence of pretext. However, in light of the other evidence of record, complainant failed to show that respondent's explanation for rejecting complainant for the position in question was a pretext for race discrimination or retaliation. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Where the record established that a balanced panel was desirable under relevant civil service policies but was not mandatory, and where respondents did not provide an explicit explanation as to why they did not have a balanced panel, the absence of a balanced panel could be considered to be probative of pretext. However, in light of the other evidence of record, complainant failed to show that respondent's explanation for rejecting complainant for the position in question was a pretext for race discrimination or retaliation. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Where the only bases for a factual conclusion that the employing agency had pre-selected a white candidate were that the successful candidate was white and was known to the appointing authority, complainant failed to establish his theory of pre-selection. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Where the persons making the hiring decision in question were unaware that the selected candidate was a racial minority member until after the recommendation had been made to hire him, the prima facie case of race discrimination with respect to complainant, an unsuccessful White candidate, was rebutted. Lundquist v. UW, 95-0081-PC-ER, 9/23/98
Where there was no showing that the use of expanded certification had been improper, its use was insufficient to show that race discrimination occurred. Lundquist v. UW, 95-0081-PC-ER, 9/23/98
Petitioner failed to establish race or sex discrimination regarding a selection decision where the person selected possessed a greater amount of non-technical skills, such skills were related to the supervisory position and respondent determined to seek a candidate with these non-technical skills prior to knowing who the candidates were. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm. et al, 95-CV-003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98
No discrimination based on sex, sexual orientation or race, violation of FMLA, nor retaliation based on FEA activities was found with respect to respondent’s decision to discharge the complainant where respondent concluded that complainant had violated various work rules when she gave a suggestive note to a coworker, telephoned the same coworker at home, admitted to using profanity towards various other coworkers and about a client. Mitchell v. DOC, 95-0048-PC-ER, 8/5/96
Petitioner failed to establish race or sex discrimination regarding a selection decision where the person selected possessed a greater amount of non-technical skills, such skills were related to the supervisory position and respondent determined to seek a candidate with these non-technical skills prior to knowing who the candidates were. Postler v. DOT, 94-0016-PC, 94-0024-PC-ER, 10/16/95; affirmed by Dane County Circuit Court, Postler v. Wis. Pers. Comm., et al, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98
Complainant failed to establish sex discrimination relative to the failure to provide her with a light-duty position because of a work injury, where, among other reasons, most of the potential light duty assignments did not meet complainant's work restrictions, respondent reasonably believed the remaining potential assignment would have been inconsistent with her restrictions, respondent initially did find a light duty assignment in another facility and two of the three decision makers were women. Longdin v. DOC, 93-0026-PC-ER, 7/27/95
No discrimination based on race or sex was shown in regard to complainant's performance evaluation where complainant, a Building Maintenance Helper, had failed to notify her supervisors of health and safety violations in her building, had failed to communicate effectively with her supervisors on various occasions, had failed to carry out a work assignment and had failed to wear proper safety equipment. McKibbins v. UW-Milwaukee, 94-0099-PC-ER, 4/4/95
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 the 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 dated. Weaver v. UW-Madison, 93-0022-PC-ER, 11/3/94
No race discrimination was found regarding the respondent's decision to discharge the complainant, where the decision was made by someone of complainant's ethnic heritage and the decision was made after considering the internal investigatory report which showed complainant had been involved in an altercation with a female neighbor, had threatened the neighbor when she was in her car, had blocked her car and had kicked her car, and after discussing the matter with subordinates and legal counsel. Whitley v. DOC, 92-0080-PC-ER, 9/9/94
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
Complainant failed to establish prima facie case where he did not show that different wage-eligibility factors were used for him than were used for all other employes regardless of their race and/or sex and he did not show that the uniform wage-eligibility factors impacted less favorably on the group of employes with the same sex and/or race as complainant. Christensen v. DOC & DER, 90-0144-PC-ER, 2/3/94
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
In differentiating among well-qualified candidates for a position, it is not evidence of discrimination to consider the goals of a proper affirmative action plan as a selection criterion. Byrne v. DOT & DMRS, 92-0672-PC, 92-0152-PC-ER 9/8/93; affirmed by Dane County Circuit Court, Byrne v. State Pers. Comm., 93-CV-3874, 8/15/94
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 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
No discrimination was found even though race played a part in the hiring decision where respondent established that the decision would have been the same even if race had not played such a role. The successful candidate was substantially better qualified for the Institution Aide 4 position, which required supervision of staff providing direct care to medically fragile, multiply-handicapped patients. The successful candidate had extensive supervisory experience and background as an LPN while the complainant's sole experience was one year as an Aide 1. Jenkins v. DHSS, 86-0056-PC-ER, 6/14/89
No discrimination was found with respect to a nonselection decision where the hiring authority's rationale, that the successful candidate's ability to interact successfully and persuasively with a wide range of individuals was superior to the other candidates, was not pretextual. The hiring authority found complainant's interview responses to be rote and relatively shallow and did not indicate an ability in the area of interpersonal relations. Complainant's paper credentials in certain areas were not determinative given the hiring authority's reasonable reliance on subjective characteristics that were apparent in an interview. A member of one racial minority (Asian) was the successful candidate and a member of a different racial minority (black) was ranked second and was eventually hired when the successful candidate left. Because the complainant, also black, had superior paper credentials to the second ranked candidate, some factor other than race was at work. Winters v. DOT, 84-0003-PC-ER, 7/8/88
The analysis of candidates on the basis of subjective criteria was upheld for use in filling a higher level vacancy (i.e., Affirmative Action/Equal Employment Opportunity Officer). Winters v. DOT, 84-0003-PC-ER, 7/8/88
The lack of a formal rating system or rating forms, benchmarks or interview notes did not demonstrate pretext in the decision not to the select the complainant for a higher level vacancy. Winters v. DOT, 84-0003-PC-ER, 7/8/88
No discrimination was found where complainant, who was black, had been discharged for receiving and possessing a quantity of marijuana on the job. A second, white, employe was not disciplined for being suspected of smoking marijuana on the job due to a lack of physical evidence. However, the second employe was verbally warned that, if caught with marijuana, he would be disciplined up to and including termination. Massenberg v. UW System, 81-PC-ER-44, 2/6/86
No discrimination was found where respondent constructively discharged the complainant, who is white and was employed at a correctional institution, where respondent reasonably concluded that complainant was involved in a romantic relationship with an inmate at the institution and where there were no comparisons establishing that respondent imposed a different level of discipline against similarly situated employes of a different race. Winterback v. DHSS, 82-PC-ER-89, 8/31/84
No discrimination was found where complainant failed to introduce evidence sufficient for the Commission to make any significant or relevant findings of fact or to conclude that complainant had proven any of the elements of a prima facie case. Harris v. DILHR, 81-PC-ER-52, 6/21/83
While the complainant established a prima facie case, no discrimination as to an appointment was found where there were strong reasons for the appointment that was made, the complainant's statistical showing of work force composition was inconclusive, and there was no evidence of discrimination with respect to three acting appointments of whites followed by their permanent appointments which allegedly constituted a pattern and practice of discrimination. Long v. DILHR, 81-PC-ER-1, 11/24/82
Respondent's decision to lay off complainants (five black LTE's) from a work force of five white and seven black LTE's was held not to be motivated by racial considerations where complainants were not as qualified as the employes who were retained, whether because of attendance, nature of jobs performed, length of time since they were hired, or length of time otherwise left in the term of employment. McKee et al. v. DILHR, 80-PC-ER-92, etc., 7/26/82
Respondent did not engage in discrimination by discharging appellant for excessive absenteeism where appellant had previously been disciplined on numerous occasions for his extensive absenteeism during the prior 7 years and was unable to satisfactorily explain his unexcused absence to his supervisor. Norwood v. UW-Parkside, 78-PC-ER-62, 5/13/82
The Commission held that the denial of a reclassification request, even though it was overturned in a companion §230.44(l)(b), Stats., personnel appeal, did not constitute racial discrimination, where the reclassification denial was based on an interpretation of the position standards with which the Commission disagreed but did not feel was unreasonable per se, the complainant testified that his supervisor made remarks that he considered discriminatory and stereotypical, but he did not offer any evidence that the supervisor ever discriminated against him, the supervisor had given the complainant good performance evaluations and merit wage increase recommendations, and the supervisor had no role in the reclassification denial decision, and the allegation that the personnel analyst involved did not maintain eye contact with the complainant was of little if any probative value. Moy v. DPI & DP, 79-PC-ER-167, 8/21/81
The Commission found no race discrimination in the discharge of the complainant food service worker where she was absent on the average about one shift per week and where a non-discharged white employe did not have a similar or worse attendance record. Bowers v. UW-M, 78-PC-ER-1, 7/28/80
Complainant failed to show she was discriminated against when she was discharged where she had been advised that a state car should never be kept out overnight without management approval and one week later, without management approval, she parked a state car overnight in front of her home and it was damaged in an accident. Complainant had filed a charge of discrimination with the Commission approximately one month prior to the state car incident but there was no showing that respondent was aware of the existence of the complaint. Stonewall v. DILHR, 79-PC-ER-19, 5/30/80
784.04 Prima facie case
Where the parties disagreed about whether complainant was qualified for the position in question but complainant had clearly established the other elements of a prima facie case of race discrimination, the Commission proceeded directly to the issue of pretext. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Complainant failed to establish a prima facie case of race discrimination regarding the termination of his probationary employment where complainant acknowledged engaging in behavior which clearly violated applicable work rules, and failed to show that he was treated in a different manner than any other employe under similar circumstances. Amaya v. DOC, 93-0104-PC-ER, 7/7/94
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
Complainant failed to establish a prima facie case with respect to the decision to terminate her employment where her performance did not, at any point during her employment, come close to meeting the performance standards for the position. In addition, respondent had extended complainant's probationary period, located two other positions and encouraged complainant to compete for them and, when she declined to do so, located a LTE position for her. Watkins v. DHSS, 89-0073-PC-ER, 4/17/92
The Commission rejected the argument that in order to establish the fourth prong of a prima facie case for a nonselection decision, a complainant who cannot prove the vacancy remained open after s/he was rejected must present some other evidence of improper motivation. Winters v. DOT, 84-0003-PC-ER, 7/8/88
Respondent's decision not to reinstate complainant was held not to be motivated by racial considerations where complainant failed to introduce specific evidence concerning her qualifications or concerning the identity and actions of decision makers whom she held accountable, and therefore failed to make out a prima facie case. McKee et al. v. DILHR, 80-PC-ER-92, etc., 7/26/82
784.06 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
Statistics showing employment of "racial/ethnic minorities" according to job categories in each of two state agencies and the percentage of "racial/ethnic minorities" in the state population as a whole had very limited probative value where there was no way on the record to determine the degree of correlation between the state population figures and the qualified and available labor force and there was no information as to he nature and geographic disposition of jobs in each category ("professionals," "officials/administrators," etc.) Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
784.10 Disparate impact
In an adverse impact case, complainant has the burden of proving that the policy or practice complained of had a significantly exclusionary impact of his protective class. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Complainant failed to establish that an Option IV, or open competitive selection process for career executive positions, had an adverse impact on racial minorities. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
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
A non-selection case was not susceptible to analysis on a disparate impact theory where the complainant did not show that a practice, procedure or test had a disparate impact on blacks and complainant merely contended that, since the respondent's work force contained unrepresentation, respondent needed to demonstrate that the underrepresentation was due to some kind of business necessity. In addition, there was no showing, that the respondent's work force was underrepresented with respect to the qualified, available labor force. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
784.25 Racial harassment
Where respondent responded to alleged incidents of racial harassment wherever it had a basis on which to respond, there was no basis for a conclusion that there was probable cause to believe management failed to take reasonable steps to prevent workplace harassment by complainant's co-workers. Sheridan v. UW-Madison, 86-0103-PC-ER, 87-0141-PC-ER, 2/22/89
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.