[Previous material] [Next material]
796.05 Examination procedure
Requiring an applicant to certify that his answers to an exam are true does not constitute the administration of an honesty testing device as defined by the FEA. McCoic v. Wis. Lottery, 88-0157-PC-ER, 12/17/92
Respondent did not discriminate against the complainant, who has uncorrected vision acuity of 20/400, in deciding not to consider him further as a candidate for a State Patrol Trooper I position, where respondent had a standard for uncorrected vision of 20/100. Wood v. DOT, 86-0037-PC-ER, 5/5/88; affirmed by Milwaukee County Circuit Court, Wood v. Wis. Pers. Comm., 88-CV-09-178, 5/10/89; affirmed by Court of Appeals, 009-178, 11/22/89
No unlawful discrimination was found where the complainant, whose hand was in a cast, never clearly communicated to the respondent that he had had difficulty taking a written exam until several months later, and the respondent then offered him the opportunity to retake the exam. Goldberg v. DP, 78-PC-ER-66, 74, 10/17/80
796.10 Certification
The granting of veterans preference points does not violate §111.32(8), Stats., relating to handicap discrimination. Nettleton v. State Personnel Board, Dane County Circuit Court, 159-201, 8/13/79
No discrimination was shown where DER followed the statutory procedure for awarding veteran's points for all individuals eligible for the points, regardless of their age, sex or race/color. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
Respondent's request to DMRS to remove complainant's name from the certification list was consistent with §ER-Pers 11.04(1), Wis. Adm. Code, and did not support a finding of discrimination. The author of the letter was unaware of complainant's handicap. Smith v. UW-Madison, 90-0033-PC-ER, 7/30/93
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
No probable cause based on handicap was found where complainant, who has uncorrected vision of 20/500 for both eyes, was ranked 36th following the written exam for Conservation Warden I which was too low a ranking to be considered for appointment under respondent's normal procedures. Complainant could only have been considered further if he had been certified under the Handicapped Expanded Certification (HEC) program but respondent rejected complainant for this program because it was determined he was not handicapped. Respondent could not be considered to have discriminated against the complainant because of his handicap when respondent had determined he was not handicapped under the HEC program. Wood v. DNR, 86-0002-PC-ER, 2/19/88
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
796.15 Selection decisions (including reinstatement, promotion and reappointment)
Discrimination was found where complainant, who had a history of mental depression, was not selected for a typist position at a state correctional camp and where handicap was found to have "made a difference" in the decision to hire a woman. DHSS v. Pers. Comm. (Busch), Dane County Circuit Court, 81-CV-2997, 3/9/82; affirming with respect to handicap discrimination the Commission's decision in Busch v. DHSS, 78-PC-ER-8, 3/15/81
No discrimination was found to exist where complainant, a male, was not selected for a typist position at a state correctional camp where question by member of selection panel asking complainant how he would handle "razzing" by 55 male camp residents for being in a "typically female position" was asked because complainant, who had a history of mental depression, might have difficulty handling verbal harassment. Commission's finding of discrimination based on sex was reversed, although finding of handicap discrimination was upheld. DHSS v. Pers. Comm. (Busch), Dane County Circuit Court, 81-CV-2997, 3/9/82; affirming with respect to handicap discrimination the Commission's decision in Busch v. DHSS, 78-PC-ER-8, 3/15/81
Complainant failed to establish that he was qualified for a supervisory position where respondent was seeking applicants with experience exercising authority to hire, fire and evaluate subordinate employes, and complainant's supervisory experience occurred about 10 years prior to the interviews and did not include such authority. No sex discrimination was found. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Where testimony of complainant and of respondent's witness, who interviewed the applicants for the vacancy in question, did not differ in a substantive way, it would be inappropriate to apply a jury instruction, requested by complainant, that the failure to produce a document within a party's control raised an inference that the document contained evidence unfavorable to that party's case. Complainant had contended the jury instruction should be applied because respondent had lost complainant's application materials. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Complainant failed to establish a prima facie case of retaliation with respect to a decision not to hire complainant for a vacant supervisory position where the person who made the decision that complainant was insufficiently qualified to merit a second interview was unaware that complainant had participated in any activity protected under the Fair Employment Act. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
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
Complainant, 56, failed to establish age discrimination with respect to the hire of a 24 year old candidate, where the hiring decision turned on factors such as ability to listen and being a team player, rather than on training and experience. The Commission rejected complainant's contentions that pretext was demonstrated by developing the position description in a way as to favor younger candidates, by the "tone" of complainant's interview, by a comment to complainant (and not to any of the other interviewees) that she had 10 to 15 minutes to make a presentation in response to a question, by the failure of the interviewers to solicit additional information about one of complainant's responses and by the action of the interviewers to accept the successful candidate's answer to one question as correct. Lundquist v. UW, 95-0081-PC-ER, 9/23/98
Complainant, 48, failed to establish age discrimination with respect to hiring decisions for four positions of LTE Security Officer, even though he had extensive experience performing somewhat similar duties for the respondent for a period of approximately 10 years that ended approximately 5 years before the hiring transactions in question, where there had been an intervening and fundamental change in the orientation of the work unit from a police department to a security department and complainant did not have a good interview with regard to the newly stressed criteria of communication and interpersonal capabilities. There was no evidence to contradict the interviewer's testimony that she requested the ages of the interviewees in order to conduct a criminal record inquiry. The fact that two of the chosen candidates were over 40, and within 6 years of complainant's age, supported respondent's position that age was not a motivating factor in its hiring decision. Ruport v. UW (Superior), 96-0137-PC-ER, 9/23/98
Complainant failed to establish a prima facie case of disability discrimination relating to a Program Assistant 1 non-selection decision where the disability status of the successful candidate was not contained in the record. Ledwidge v. UW-Madison & UWHCB, 96-0066-PC-ER, 5/20/98
Respondent did not discriminate against complainant based on age with respect to a Program Assistant 1 selection decision where computer skills were a key selection factor, complainant's resume did not mention computer skills or knowledge, his interview notes did not mention computer skills or knowledge, and the successful candidate's resume and interview notes emphasized that knowledge. Ledwidge v. UW-Madison & UWHCB, 96-0066-PC-ER, 5/20/98
Complainant failed to establish a prima facie case of age discrimination relating to two Building and Grounds Superintendent 4 non-selection decisions where the ages of the successful candidates were not contained in the record. Ledwidge v. UW-Madison & UWHCB, 96-0066-PC-ER, 5/20/98
No probable cause was found on the basis of sex or age as to respondent’s decision to use promotion rather than reallocation as a method for moving employes to a higher classification level in light of management’s understanding that the union opposed reallocation and the absence of any indication that the lengthy promotional procedure, which resulted in decisions to hire 1 of 2 female candidates and 7 of 8 candidates older than 40, was undertaken because of the complainant’s age or sex. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No probable cause was found on the basis of sex or age as to respondent’s decision not to select complainant, a female over the age of 40, where information beyond the raw scores from interviews was relied upon in making the final decisions whether to promote a particular candidate, this information related to a large extent to the performance or work record of the candidate, complainant’s performance was marginal and other employes who were promoted did not have similar performance problems as complainant. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No probable cause was found as to complainant’s FEA retaliation claim arising from the decision to require him to undergo an interview for a vacant position along with other names on the certification list rather than to transfer into the position without an interview, where the record was insufficient to establish that the decision-maker was aware of complainant’s participation in activities protected under the FEA. Holubowicz v. DOC, 96-0136-PC-ER, 4/24/97
No probable cause was found as to complainant’s occupational safety and whistleblower claims arising from the decision to require him to undergo an interview for a vacant position along with other names on the certification list rather than to transfer into the position without an interview where the record did not indicate that the alleged retaliator knew the position’s classification had been lowered prior to the date the certification list was generated, respondent had posted the position for transfer prior to accepting applications for competition and the record did not indicate that respondent would have had an obligation to post the position for transfer a second time, and complainant waited until minutes before his interview started before requesting an opportunity to transfer without an interview. Holubowicz v. DOC, 96-0136-PC-ER, 4/24/97
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 the misconduct was not as serious as complainant’s in the context of the vacancy. Zeicu v. DHSS [DHFS], 96-0043-PC-ER, 1/16/97
Respondent discriminated against complainant, 56, in not selecting him for the position of acting director of administrative computing, where complainant’s credentials in computer science were far superior to those of the person selected, who was 37 years old, had very little formal training or education in computer science and had far less extensive supervisory experience than complainant. Complainant’s job performance with respondent had been exemplary. Respondent contended that the person hired was a better communicator and had better interpersonal skills, but complainant established that his skills in these areas were at least on a par. Chiodo v. UW (Stout), 90-0150-PC-ER, 6/25/96; affirmed by Dane County Circuit Court, UW v. Wis. Pers. Comm., 97-CV-3386, 9/24/98
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, 95CV003178, 10/9/96; affirmed by Court of Appeals, Postler v. Wis. Pers. Comm., 96-3350, 1/27/98
While it is the better practice to retain records created as part of a hiring process, no legal mandate for retention exists. There was no basis to infer that discarded interview notes contained information favorable to petitioner's case where the explanations for the missing notes were credible and the record did not otherwise support a finding of discrimination. 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
The decision not to select the complainant was based upon his responses to the interview questions, rather than upon his sex. The successful candidate, a female, was selected because she was the top-rated candidate during the interviews and her references maintained that ranking. Complainant was ranked number 4, behind two other males. While complainant identified two selection criteria upon which he felt he should have been ranked higher than the successful candidate, it was not complainant's prerogative to choose the selection criteria for the position. The interview questions were used to fill a variety of vacancies, rather than just the one in question. Benchmark responses were developed well in advance of the interviews, all the interviewers participated in all of the interviews, all the interviews followed the same procedure, the panelists' notes and scores were reasonably consistent, questions were graded individually and each panelist denied that sex played a role in the analysis or was discussed. Although the supervisor of the vacant position told complainant that the sex of the successful candidate was the basis for the decision not to select complainant, this statement was false and was a misguided effort to avoid telling complainant, in a very public setting, the true reasons for the decision. Dorf v. DOC, 93-0121-PC-ER, 6/9/95
In a case arising from a selection decision, complainant failed to establish a prima facie case of sex discrimination where the sole evidence he presented was that 3.6% of Program Assistant 2 positions are held by males. Durfee v. DATCP, 94-0042-PC-ER, 12/22/94
In a case arising from a selection decision, complainant failed to establish a prima facie case of sex discrimination where the main evidence he presented to raise an inference of discrimination was the fact that the positions at that classification level in respondent agency were filled almost exclusively by females. The makeup of respondent's workforce without comparison to the available labor force is insufficient to establish a prima facie case. Durfee v. DOJ, 94-0047-PC-ER, 12/14/94
No discrimination was shown with respect to the employing agency's letter directing the interview panelists to contact the affirmative action officer before making a hiring decision where the panelists understood there was no requirement to hire women, only a requirement, in the event a male was recommended, to explain why a woman was not recommended for hire. The affirmative action officer had approved the hire of non-targeted groups in other selection decisions when justified, for example, by the interviewers' opinion that another person was the best candidate for the particular vacancy. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
No discrimination was shown with respect to the employing agency's decision not to take written exam scores into account when making the hiring decision. The civil service code does not require that the written exam score be a factor considered in the post-certification hiring process, and respondent did not consider the exam score of any candidate, regardless of their age, sex or race/color. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
No discrimination was shown with respect to the employing agency's decision to use interview questions which were other than purely objective, where benchmarks were developed as the "correct answer" for grading purposes, the questions and the benchmarks were related to the duties of the vacant positions and were developed before the interviews when specifics of each candidate's background were unknown to the employing agency. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
In filling three Property Assessment Technician positions, no discrimination was shown with respect to the employing agency's decision to structure the interview questions in such a way as to emphasize repetitive and mundane tasks, rather than a professional real estate background where the questions reflected the job duties of the positions and the questions and benchmarks were developed before the employing agency was aware of the complainant's professional background. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
Discrimination does not automatically occur where a member of an underutilized group identified in an approved affirmative action plan is hired even through the successful candidate has a post-interview rank below other candidates who are not a member of the underutilized group, citing 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-003874, 8/15/94. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
No discrimination occurred when the female successful candidate was a member of a group identified in an approved affirmative action plan as an underutilized group for the particular job category, where the employing agency clearly showed she was qualified for the job and where the interview process otherwise was free of discrimination. Gygax v. DOR & DER, 90-0113-PC-ER, 12/14/94
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 handicap discrimination was shown where the complainant did not argue that he was more qualified for the position than the successful candidate. Complainant's belief that he would have been hired if written justification for not hiring had to be provided to respondent's Affirmative Action officer was unsupported by the evidence. Bertram v. DILHR, 92-0241-PC-ER, 9/21/94
Complainant failed to show sex discrimination regarding respondent's decision to reinstate a male employe rather than to hire complainant, where complainant failed to establish general underutilization of women, complainant was less qualified than the person appointed and respondent followed its normal practice of reinstating employes. Pennybacker v. DHSS, 91-0139-PC-ER, 7/7/94
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
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 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 that respondent's decision not to select the complainant for a Regulation Compliance Investigator position was based on age or sex where the successful candidate 1) had more persuasive and conciliatory communication and conflict resolution skills, 2) had superior interest in the position, regulatory program experience and initiative, and where complainant had not shown good judgment in comments he had made relating to his prospects for obtaining a position prior to the interviews. Hinze v. DATCP, 91-0085-PC-ER, 12/28/93
If the civil service process required that only criteria susceptible to an objective grade or score be used when selecting a candidate, the process would not incorporate an opportunity for the appointing authority to conduct personal interviews. One purpose of such interviews is to subjectively assess each candidates' communication skills and enthusiasm. Hinze v. DATCP, 91-0085-PC-ER, 12/28/93
It is routine for employers to solicit and rely on information relating to a candidate's work history, including personal characteristics observed by an employer during the performance of work responsibilities, as a primary indicator of likely success in a position. Complainant's statement, made while employed in a position located at respondent's headquarters building, that he presumed he would be hired for a vacancy and that his interview would be just a formality, was relevant to considerations of his judgment and objectivity and listening skills. Respondent was justified in considering this information just as it considered information relating to other candidates gleaned from their employment histories. Hinze v. DATCP, 91-0085-PC-ER, 12/28/93
Respondent did not discriminate against complainant on the basis of his age when it failed to promote him to one of four vacancies and the following did not present evidence of pretext: respondent's reliance on work experience criteria, respondent's consideration of complainant's past work performance problems, respondent's failure to solicit references from complainant's supervisors, respondent's failure to consult complainant's personnel file, respondent's failure to promote complainant on five prior occasions, and respondent's request for additional candidates for consideration after promotional offers were declined by two individuals. A statement by a member of one of the interview panels to the effect that the complainant had a few more gray hairs than the last time they met was construed as an attempt at initiating casual conversation rather than as direct evidence of discrimination. Trimble v. UW-Madison, 92-0160-PC-ER, 11/29/93
Complainant failed to establish a prima facie case of sex discrimination with respect to a hiring decision where the appointing authority who made the decision was of the same gender as complainant and her question about complainant's pregnancy was not part of the interview but was asked to show interest in complainant as a person, and the percentages of men and women hired for these kinds of positions were about the same. Even if a prima facie case had been present, complainant failed to show that management's rationale for its decision was pretextual. Rosenbauer v. UW-Milwaukee, 91-0086-PC, 91-0071-PC-ER, 9/24/93
No discrimination was found where complainant, a non-handicapped individual, presented no evidence to substantiate his claim that respondent hired a handicapped individual instead of him to meet an affirmative action quota. Complainant's interview score was only third highest among five finalists. The successful candidate was rated highest and had a very strong reference. Sagady v. ECB, 92-0101-PC-ER, 9/24/93
Respondent's failure to interview complainant for a vacancy was solely because of its keypunch error when entering complainant's application information. Complainant's handicap discrimination claim was dismissed. Schimmel v. DOD, 91-0070-PC-ER, 9/24/93
No sex discrimination was found as to respondent's decision to hire a female rather than complainant, a male, for a costume technology faculty position where the successful candidate was selected by a male committee, had more relevant qualifications than complainant, and was the only candidate who initiated contact with members of the selection committee. There was insufficient evidence to show that there is systemic discrimination against men in filling faculty level costume technology positions. Schmitt v. UW-Milwaukee, 90-0047-PC-ER, 9/24/93
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's dyslexia was held not to "limit the capacity to work" but to impose "a substantial limitation on a particular life activity" and, as a result, to constitute a handicap. It was held that it did not constitute handicap discrimination per se for the appointing authority not to select complainant even though he was the interview panel's top-ranked candidate; but it was appropriate for the appointing authority to consider this as one of several selection factors, including the candidates' level and type of education, level and type of experience with the State Patrol, and the goals of the applicable affirmative action plan. Complainant's argument that, once respondent requested handicapped expanded certification, it was required to hire a handicapped candidate, would lead to an absurd result. 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
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
No discrimination was found in hiring three positions where, as to two of the decisions, the decisionmakers were unaware of complainant's handicapping condition and the decisions not to select complainant were based on reasons other than her handicap, including her attitude and friendliness expressed during the interviews and her references' comments. Smith v. UW-Madison, 90-0033-PC-ER, 7/30/93
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
Respondent did not discriminate against complainant on the basis of arrest/conviction record when it failed to hire him for a food service worker position at a juvenile correctional institution where appellant was currently serving a sentence for arson and the personal qualities associated with the crime are incompatible with the desirable traits needed for a position that has responsibilities for the safety, direction and discipline of juvenile offenders in an institution. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
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
Complainant failed to establish a prima facie case of age discrimination regarding a selection decision where the successful candidate was also in the protected age group, there was no indication the employer was aware of the age of either candidate, and there was no basis to conclude there was a significant difference between the two in terms of youthfulness of appearance. Ludeman v. DER, 90-0108-PC-ER, 12/29/92
Complainant failed to show that respondent's rationale for its hiring decision was a pretext for age discrimination where complainant had a "feeling" during the interview he was being discriminated against, he didn't believe a ten minute interview was sufficient, and he told the interviewer he had a lot of experience, which purportedly would have led the interviewer to conclude complainant was over 40. The interviews were conducted in a uniform manner, the only available information shows that the candidates selected appeared to have been better qualified, and respondent's expert offered unrebutted testimony that respondent's hiring statistics did not show age discrimination. McCoic v. Wis. Lottery, 88-0157-PC-ER, 12/17/92
Respondent did not discriminate against the complainant on the basis of age when it failed to hire him for one of fifteen Conservation Warden 1 positions. Complainant established a prima facie case of age discrimination but failed to show respondent's explanation, i.e. that complainant did not score high enough in the interview, was a pretext for discrimination. There was inadequate statistical evidence in the record to show disparate impact, and, with respect to disparate treatment, there was no evidence regarding the qualifications of any of the candidates other than complainant. Respondent's action of identifying those candidates who would move on to the next stage in the selection process was consistent with respondent's usual practice for group referrals. Wojtalewicz v. DNR, 90-0153-PC-ER, 12/17/92
Complainant failed to establish pretext with regard to respondent's decision as to promotion. Respondent articulated a legitimate, non-discriminatory rationale for its decision--the selected candidates did better on the oral interview, and management had positive opinions about the selected candidates' past performance and concerns about complainant's past performance. These concerns were not shown to be pretextual, particularly in light of examples of complainant's problem areas in the record. While complainant had more education and experience than the selected candidates, respondent had a reasonable basis for its opinion that the selected candidates had demonstrated greater potential for successful performance in the higher level positions based on performance factors and better performance during their interviews. That complainant had more experience and formal education did not result in a conclusion of pretext because, under all the circumstances, including the aforesaid performance factors, respondent had a reasonable basis for believing the selected candidates had better potential to succeed at the higher level. While complainant's contentions about inadequate accommodation of his handicap were considered as potentially probative of respondent's attitude toward handicapped employes, he did not establish that respondent denied him any accommodations. Orr v. OCI, 92-0018-PC, 92-0025-PC-ER, 10/29/92
Where the primary basis utilized by respondent for making hiring decisions pursuant to the contractual transfer process was seniority unless a less senior candidate possessed clearly and substantially different qualifications, and where the complainant failed to show that her relevant qualifications were clearly and substantially different than those of the more senior candidates, no probable cause was found with respect to complainant's claim of discrimination based on marital status and the decision not to select the complainant was affirmed. Molitor v. DHSS, 89-0086-PC, 89-0105-PC-ER, 5/1/92
While complainant showed some variances in her interview for a vacant position with the appointing authority, complainant failed to establish that the variances were motivated by an unfavorable bias toward her marital status and that they resulted in her failure to gain the top ranking for the vacancy. Bell-White v. DHSS, 89-0009-PC-ER, 4/30/92
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. Complainant's claims of race, color and national origin discrimination were rejected. 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. Complainant's claims of race, color and national origin discrimination were rejected. Balele v. DOA & DMRS, 88-0190-PC-ER, 1/24/92
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
No probable cause based on race, sex or retaliation 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 and sex as the complainant. Even though there was no showing that one of the interviewers was aware of the complainant's prior protected activities, that interviewer's ranking of the candidates was the same as the other interviewers. Cozzens-Ellis v. UW-Madison, 87-0070-PC-ER, 2/26/91
Discrimination was found where complainant, who was visually handicapped, was rejected from employment on a hospital's food tray line as soon as she stated she was unable to read the menu cards on the trays in the existing workplace configuration. At hearing, the respondent failed to offer evidence rebutting the testimony of complainant's expert witness that certain specific accommodations would have allowed the complainant to have performed the job duties. Nothing suggested that, at the time complainant's employment request was rejected, the appointing authority actually considered whether there any reasonable accommodations were available and it appeared that the supervisor who was effectively responsible for the hiring decision was unaware of the duty of accommodating handicapped applicants. Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90
No probable cause based on age, handicap or sex was found with respect to the decision not to select the complainant for a vacant position where the questions used by the interview panel were job-related, the questions were asked of all the candidates, the answers were scored using a pre-established benchmark rating system, the actual scores awarded were based on the candidates' responses, the panel members did their ratings individually and the scores were not altered. Jahnke v. DHSS, 89-0094-PC-ER, 89-0098-PC, 12/13/90
No probable cause based on race, sex or retaliation 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 3's. 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 based on national origin 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 two decisions not to hire complainant, a female. In the first transaction, two of the three interview panelists were female, the successful applicant was also female, the petitioner was not as qualified as other candidates based on the structured interviews conducted of all of the candidates and deficiencies in the selection process affected all of the candidates equally. In the second transaction, two of the three interview panelists were female and there was no evidence that complainant was better qualified than the successful candidates. Bloedow v. DHSS, 87-0014-PC-ER, etc., 8/24/89
No probable cause was found with respect to a decision not to hire the complainant, who had previously filed a discrimination complaint, where two of the three interview panelists were unaware, at the time they scored the interviews, of complainant's protected activities and deficiencies in the selection process affected all of the candidates and were not specifically directed at the complainant. Bloedow v. DHSS, 87-0014-PC-ER, etc., 8/24/89
No probable cause was found with respect to a decision not to hire the complainant, a 42 year old female, for assistant professorships where the selection process resulted in hiring four out of six females and three of the six successful candidates were in the protected age category. The successful candidates had more relevant degrees, more recent experience teaching in the field, for the most part more teaching experience, and better recommendations than the complainant. Chandler v. UW-La Crosse, 87-0124-PC-ER, 88-0009-PC-ER, 8/24/89
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 probable cause based on age or retaliation was found with respect to various nonselection decisions where complainant failed to show that her experience, knowledge, interest and motivation or interview performance were actually superior to those of the successful candidates, that the hiring criteria were not properly related to the duties and responsibilities of the subject position, or that the criteria were not properly applied by the individuals with effective hiring authority. Complainant's statistical evidence relating to the age claim presented a mixed picture at best. In addition, there was no evidence that the individuals with hiring authority knew or had any reason to know that complainant had filed a discrimination complaint. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
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
No probable cause based on age or sex was found with respect to a decision not to hire the complainant where there was nothing in the record from which to conclude that the respondent's explanation was not legitimate, the explanation was clearly non-discriminatory on its face and the complainant failed to show a relationship between respondent's actions and complainant's age or sex. Ozanne v. DOT, 87-0107-PC-ER, 1/31/89
No probable cause based on age, sex or marital status was found with respect to a selection decision where there was no basis on which to conclude that the selection criteria were unreasonable, were not uniformly applied, or were not as respondent represented them to be or that the interviewing panelist's assessments of the candidates were not reasonable in view of the presentations of the candidates at the interviews and in view of the selection criteria. Larson v. DILHR, 86-0019-PC-ER, 86-0013-PC, 1/12/89
No discrimination was found with respect to a decision not to reinstate the complainant to a vacant FRW 3 position where the decision-maker considered another candidate to be better qualified, the decision-maker had not been overly impressed by complainant's work habits during his prior employment and the decision-maker was concerned about a work rule violation that had occurred when the complainant was smoking and possessing marijuana on the job but was not concerned about the associated arrest. Ames v. UW-Milwaukee, 85-0113-PC-ER, 86-0123-PC-ER, 12/23/88
No probable cause was found with respect to a decision not to reinstate the complainant to a BMH 2 position where it was undisputed that the appointing authority was applying a policy that former employes with disciplinary records were not rehired in the absence of extenuating circumstances and the appointing authority was not even aware of the complainant's arrest until complainant himself brought it up during discussions about the record of discipline. Ames v. UW-Milwaukee, 85-0113-PC-ER, 86-0123-PC-ER, 12/23/88
It would have been speculative to conclude there was any connection between complainant's sexual preference and his failure to be reinstated to a vacant position where the decision-maker was unaware of complainant's sexual orientation and the person alleged by complainant to have had an animus against complainant because of his homosexuality had an extremely limited role in the selection process. Ames v. UW-Milwaukee, 85-0113-PC-ER, 12/23/88
Probable cause based on handicap was established as to a decision not to hire the appellant where there was little evidence supporting the decision of the physician who conducted the physical to set a 15 to 20 pound lifting restriction and a restriction against frequent bending, stooping or twisting. There was no indication on the record that the physician was aware, among other things, that the appellant was currently performing similar duties. Also, appellant's osteopath was of the opinion that no type of lifting restriction was indicated. Lauri v. DHSS, 87-0175-PC, 11/3/88
No probable cause based on color, race, retaliation, or sex 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
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
No probable cause based on retaliation was found as to the decision not to rehire the complainant to an LTE position where in 1981 and 1982, her supervisors believed her attitude and performance had deteriorated to below the level of a good employe. The complainant's protected activity post-dated this substandard attitude and performance. Rose v. DNR, 83-0055-PC-ER, 84-0081-PC-ER, 4/15/87
There was no probable cause based on sex with respect to the decision not to rehire the complainant to an LTE position where her last three supervisors independently believed her attitude and work performance had deteriorated over the last two years below the level of a good employe. Rose v. DNR, 83-0055-PC-ER, 84-0081-PC-ER, 4/15/87
No probable cause on the basis of age or sex was found with respect to a decision not to select the complainant, a 41 year old male, for a position of Laboratory Animal Caretaker 2 which included both animal and plant care, where the successful candidate, a 32 year old female, was qualified for the position, had more current work experience, had experience involving both animal and plant care and was formally educated in both animal science and horticulture. Complainant ranked first on the written examination and had extensive work experience in animal care. Krause v. UW-La Crosse, 85-0026-PC-ER, 1/22/87
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
Complainant, a woman, established a prima facie case based on sex in a claim arising from a non-selection decision, even though a woman was ultimately hired for one of the two positions where the top 4 candidates were males, two males were selected for the vacant positions, and no females were in consideration until after one of the males did not report to work. The hiring of the woman was technically a different hiring transaction. Wolfe v. UW-Stevens Point, 84-0021-PC-ER, 10/22/86
Respondent lacked a creditable reason for not selecting the complainant, a woman, for one of two Building Maintenance Helper 2 positions. Work experience was the main criterion for filling the positions and complainant's qualifications were better than one selectee and at least as good as the other selectee. In addition, one of the two persons who made the hiring decision was biased against hiring a female for the positions because he felt they could not handle the job. Wolfe v. UW-Stevens Point, 84-0021-PC-ER, 10/22/86
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
No probable cause based on race 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
No probable cause based on retaliation was found with respect to a selection decision (decision #2) for a vacant position which, when filed two months earlier (decision #1) had caused complainant to file a discrimination complaint. In decision #1, respondent had ranked complainant behind the successful candidate (A) and a back-up candidate (B) at a time before complainant's first charge had been filed and before there was any possible motive for retaliation. When A indicated he would be leaving after only a few months on the job, the respondent had a strong reason to attempt to reactivate the register and to offer the job to the backup candidate.. rather than to have gone through another staffing process that would have resulted in the position being vacant for several more months. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
No probable cause based on arrest/conviction record or race 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 based on arrest/conviction record was found as to the respondents' decision not to select complainant for vacant Building Maintenance Helper 2 positions where each successful applicant had a higher interview score than the complainant and a more stable work record and there was no showing that the selection criteria applied by the respondent were not reasonably job-related, even though complainant may have had more custodial experience than some of the successful candidates. Brummond v. UW-La Crosse, 84-0178-PC-ER, 10/10/85
No probable cause was found as to the respondent's decision not to select the complainant for vacant Building Maintenance Helper 2 positions where the interviewers did not know of complainant's handicap at the time they scored the complainant's interview and where each successful applicant had a higher score than the complainant and a more stable work record. Brummond v. UW-La Crosse, 84-0178-PC-ER, 10/10/85
No discrimination was found as to respondent's decisions to select four males rather than complainant, a female, for vacant positions, where the candidates were ranked by interview panels and the complainant had not shown by a preponderance of the evidence that respondent's reasons for selecting the successful candidates were not the true reasons. The successful candidates all possessed supervisory or lead work experience, held higher level positions and had more technical experience than complainant, there was nothing irregular about the oral interview process and complainant's statistical evidence was insufficient for a finding that respondents practiced sex discrimination during the period in question. While one witness gave complainant an opinion as to who would be selected prior to the actual decision, there was no evidence of preselection. Stroud v. DOR, 82-PC-ER-97, 9/26/85
Complainant failed to establish a prima facie case based on race 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 black. Davis v. UW-Stout, 82-PC-ER-129, 1/17/85
No probable cause based on age was found as to non-selection complaint where complainant's attire at the interview was inappropriately casual, where complainant's work examples were between 25 and 30 years old, some were on brittle newspaper and the examples were musty smelling. The successful applicant was 25 while the appellant was 53. Raschick v. UW-Eau Claire, 81-PC-ER-101, 11/21/84 affirmed by Burnett County Circuit Court, Raschick v. Pers. Comm., 85-CV-12, 6/18/86; affirmed by Court of Appeals District III, Raschick v. DOJ & Pers. Comm., 86-1320, 4/21/87
No age discrimination was found where respondent decided not to reinstate complainant, a 56 year old, where the decision was based on respondent's desire to deal with a problem of sick leave abuse and complainant had a record of such abuse. In the companion appeal, the reinstatement decision was found to have been an abuse of discretion. Seep v. DHSS, 83-0032-PC & 83-0017-PC-ER, 10/10/84; affirmed in part, reversed in part, by Racine Circuit Court, Seep v. State Pers. Comm., 84-CV-1705, 84-CV01920, 6/20/85; supplemental findings were issued by the Commission on 2/2/87; affirmed in part, reversed in part by Court of Appeals District 11, 140 Wis. 2d 32, 5/6/87; [Note: the effect of the Court of Appeals decision was to affirm the Commission's decision in all respects]
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
No probable cause was found where just one of three persons comprising the interview panel for a vacant position was aware of complainant's handicap and where that person, who actually made the hiring decision, based the decision in large part on the rankings and comparisons by the other two panel members. In addition, complainant's answers to questions posed by the panel were inconsistent, at least in part, with the policies and responsibilities of the employing unit and there was no evidence in the record establishing that complainant was better qualified than the successful applicants. Bisbee v. DHSS, 82-PC-ER-54, 6/23/83; affirmed by Dane County Circuit Court, Bisbee v. State Pers. Comm., 617-636, 10/3/84
No probable cause was found where complainant failed to produce any evidence indicating the persons comprising the interview panel or the person making the hiring decision was aware or should have been aware that the complainant was bisexual. Bisbee v. DHSS, 82-PC-ER-54, 6/23/83; affirmed by Dane County Circuit Court, Bisbee v. State Pers. Comm., 617-636, 10/3/84
For a complaint arising out of a hiring decision, no probable cause was found based on age, race or sex 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
In a complaint arising from a hiring decision, no age discrimination was found where respondent reasonably concluded that complainant was not as well qualified as those sixteen applicants ultimately hired for janitorial positions and where the record failed to indicate the ages of those applicants certified and those hired. Vesperman v. UW-Madison, 81-232-PC, 81-PC-ER-66, 3/31/83
In a complaint arising from a hiring decision, no discrimination was found where complainant was not as well qualified as those sixteen applicants ultimately hired for janitorial positions, where eight of the thirty two certified applicants were handicapped and three of the eight were hired and where complainant held six different positions during the prior 41-2 year period and had been terminated once for a personality conflict and once for a verbal attack on a nun escorting a group of children who had walked on a floor complainant had just waxed. Vesperman v. UW-Madison, 81-232-PC, 81-PC-ER-66, 3/31/83
No probable cause based on race or sex was found where the complainant, a black male, 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
While the complainant established a prima facie case, no race 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
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
No probable cause was found on the issue of retaliatory discrimination with respect to respondent's failure to hire the complainant in the misdemeanor unit of respondent's adult criminal division where, before the complaint was filed, the respondent had consistently refused to hire the complaint in that unit. Taylor v. State Public Defender, 79-PC-ER-136, 8/5/82
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
Respondent was found not to have retaliated against complainant in failing to hire him. It was logical to conclude that once the appointing authority learned that it would be illegal to ignore complainant's application for a vacant position merely because complainant had previously filed a discrimination complaint, the appointing authority did not continue to consider the complaint as a factor in the hiring decision and the appointing authority agreed with the unanimous recommendation of an advisory committee that another applicant was more suitable. Smith v. UW, 79-PC-ER-95, 6/25/82
No probable cause was found where the complainant was never certified for the vacancy in question so that the respondent could not have considered her for appointment. Hagengruber v. DHSS, 79-PC-ER-131, 4/29/82
The Commission discounted the complainant's argument that once the department had reached "full utilization" for women, it stopped hiring them, since the department would not have had to have hired its third woman under this theory, and the percentage of women in the department compares favorably with other departments around the country. Rubin v. UW, 78-PC-ER-32, 2/18/82
The Commission found no probable cause to believe the complainant had been discriminated against on the basis of sex and retaliation with respect to her non-appointment to a faculty position, where she was not placed on the "short list" for further consideration, and the record fully supported the new staff committee's opinion that she was not a historical geographer, the article that she had published was not considered that impressive or that material by the Committee members, and, with respect to alleged "contradictions" in the respondent's position, the Commission stated that it should not be considered unusual that a number of faculty members testifying as to their understanding as to the needs of the department, and their evaluations of candidates for a faculty position, would not speak with one voice, nor should it be considered unusual that the search process was not able to meet its goals at every step of the process. Rubin v. UW, 78-PC-ER-32, 2/18/82
No sex discrimination was found in the respondent's failure to reinstate complainant where it was found that during the course of her prior employment with the agency she had caused friction because of her inability to get along with her co-employes, and that she had failed to follow the chain of command. Austin v. DMA, 81-PC-ER-30, 2/9/82
No age discrimination was found where the complainant took a multiple choice exam and was certified for a number of program assistant positions but did not receive an appointment. The Commission noted that the hiring decisions were separate and independent and that there were legitimate reasons for each selection. Markham v. DHSS, 79-PC-ER-151, 2/9/82; affirmed by Dane County Circuit Court, Markham v. DHSS & State Pers. Comm., 82-CV-1187, 8/20/86
No probable cause based on age was found where there was limited statistical evidence which did not indicate that a hearing on the merits would support a finding of a pattern or practice of discrimination, it was noted that the appointing authority has considerable discretion under the civil service law as to whom to appoint, and the complainant had been encouraged to take the test for the position by one of the supervisors. Andrews v. UW, 80-PC-ER-14, 10/21/81
No probable cause based on age or retaliation was found in decision not to hire complainant as an instructor in the geography department of UW-Oshkosh where an initial decision was made before complainant had filed a written application, the process was then reopened and complainant was still not hired. Four members of the department's faculty who were also members of the selection committee all had poor opinions of the complainant based on complainant's earlier experience as a teacher there. In addition, nothing in the materials submitted to the selection committee indicated that complainant had been active in the geography profession during the previous 10 years. Thalhofer v. UW-Oshkosh, 79-PC-ER-22, 9/23/81; affirmed by DILHR, 11/7/83; affirmed by LIRC, 2/16/84
No probable cause based on sex was found in decision not to hire complainant as an instructor in the geography department of UW-Oshkosh where an initial decision was made before complainant had filed a written application, the process was then reopened and complainant was still not hired. Four members of the department's faculty who were also members of the selection committee all had poor opinions of the complainant based on an earlier experience as a teacher there. In addition, nothing in the materials submitted to the selection committee indicated that complainant had been active in the geography profession during the previous 10 years. Evidence that 90% of those qualified to teach geography are men accounted for the absence of any tenured women on the department's faculty. Thalhofer v. UW-Oshkosh, 79-PC-ER-22, 9/23/81; affirmed by DILHR, 11/7/83; affirmed by LIRC, 2/16/84
Agency discriminated on the basis of sex by failing to hire the complainant as director of a district Job Service office where complainant had performed the duties as office director under a temporary interchange agreement for one year prior to decision not to hire, had been certified as number one for the position and where there was statistical evidence of under-utilization of females at or above the pay level in question. Anderson v. DILHR, 79-PC-ER-173, 79-320-PC, 7/2/81; affirmed and remanded for additional findings on issue of mitigation of damages by Dane County Circuit Court, DILHR v. Wis. Pers. Comm., 81-CV-4078, 6/7/82
Despite the failure to fill the disputed position for a number of years after the hiring decision in question and attempts to raise the position's salary level, the position remained "open" for purposes of the Fair Employment Act where the duties did not change and where the agency continued to look for someone other than the complainant to do a job for which the complainant was qualified. Anderson v. DILHR, 79-PC-ER-173, 79-320-PC, 7/2/81; affirmed and remanded for additional findings on issue of mitigation of damages by Dane County Circuit Court, DILHR v. Wis. Pers. Comm., 81-CV-4078, 6/7/82
No probable cause was found with respect to a complaint of retaliation in connection with a failure to appoint where it was noted that the decision was a collegial one participated in by the departmental faculty, and that the complainant had not applied for a current vacancy but rather had asked the department in essence to create a new professorship in an area that the department had already established as a relatively low priority. Acharya v. UW, 78-PC-ER-53, 2/13/81; affirmed by DILHR, 11/20/81; affirmed by LIRC, 1/9/82
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 based on national origin/ancestry was found. Dasgupta v. UW-Eau Claire, 78-PC-ER-22, 2/19/80
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.