KAREN ROSNECK, Complainant

STATE OF WISCONSIN
UNIVERSITY OF WISCONSIN MADISON, Respondent
GENERAL LIBRARY SYSTEM

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The word "Division" in the first sentence of the decision is deleted.

The word "PROBABLE" in the heading on page 2 of the decision is deleted.

Numbered paragraphs 19. and 20. in the FINDINGS OF FACT section are deleted.

Numbered paragraph 2. in the CONCLUSIONS OF LAW section is modified to read as follows:

The Respondent is an employer within the meaning of the WFEA.

The Memorandum Opinion section is deleted.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed August 10, 2006
rosneka . rmd : 115 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

Age discrimination

In order to show that probable cause exists to believe that she was treated less favorably than the candidates in the interview group based on her age, the complainant would have to show that the members of the search committee had reason to be aware that she was older than these candidates. The evidence of record does not establish this.

Although the record shows that successful candidate Spencer was four years older than the complainant, it does not show that the members of the search committee had any reason to be aware of this. The ages of the other three candidates in the interview group are not reflected in their application materials, or, in fact, in the record. Although it could perhaps be argued that the ages of the candidates could reasonably be inferred from the dates of completion of their undergraduate degrees, such a correlation is not an absolute one, nor necessarily even a reasonable one. It is not uncommon, for example, for individuals to complete a degree after spending several years pursuing a different degree or a different career path.

Even if the record showed that the members of the search committee had reason to be aware that the complainant was older than the candidates in the interview group, it does not show that she was as qualified overall as they were given the selection criteria.

The primary screening criterion was collection development experience. The complainant's application materials reflect that the last time she had performed the type of acquisition-related duties the respondent was seeking in regard to this criterion was in 1988, these duties had been performed in regard to the biology subject area rather than the Slavic and East European subject area, and her more recent acquisition-related duties, although relating to the Slavic and East European subject area, involved payment for acquisitions selected by others.

Secondary screening criteria included primarily familiarity with electronic access and media and the role of electronic information in teaching and research programs, and, in addition to proficiency in Russian and one other Slavic or East European language, some knowledge of a Turkic language. The complainant's application materials reflect that she participated in a Slavic librarian listserve and had developed a directory of Slavic websites, and that she had worked with Turkic languages in Roman, Cyrillic, and Arabic scripts in a library setting.

In contrast, according to their application materials, the candidates selected for interview, taking into account the position as a whole and these three criteria in particular, had stronger overall credentials than the complainant.

Biggins, who has a Ph.D in Slavic Languages and Literatures, had served in a counterpart position to the one at issue here at the University of Washington, and had managed the acquisition of its Slavic and East European collection.

Although, according to his application materials, Spencer's Slavic and East European collection development experience appears, like complainant's, to have primarily involved processing payments for acquisitions selected by others, he had managed a major Russian periodical computer digitizing project and had studied Kazakh, a Turkic language, at both the undergraduate and graduate levels.

Although Cheun's application materials do not indicate that he had significant experience with electronic access and media, they do indicate that, in his Assistant Slavic Bibliographer position at Indiana University, he had "selected new Russian books and journals" and that he had some knowledge of Uzbek, a Turkic language.

Balgamis, who has a Ph.D in the History and Culture of Central Asia, states in her application materials that she had performed collection development duties for the UW-Madison Memorial Library, including the selection of Central Asian and Turkish vernacular monographs and serials; possessed some computer skills which, like the complainant's, appear to be only tangentially related to electronic access and media and the role of electronic information in teaching and research programs; and was fluent in Kazakh and Uzbek, Turkic languages.

The credentials of Biggins, Cheun, and Balgamis were superior to the complainant's in collection development, the respondent's primary selection criterion. They were more extensive, more recent, and more relevant to the Slavic and East European subject area. Spencer's credentials in this area appear to be comparable to the complainant's, but superior to hers in the electronic information and Turkic language areas.

As a result, the evidence of record does not suggest that the selection criteria were not reasonably related to the duties and responsibilities of the position at issue, or that some factor other than the credentials set forth in the candidates' application materials affected the search committee's selection of the interview group.
 

Sex discrimination

The gender of interview group candidates Deniz Balgamis or Wook-Jin Cheun is not apparent from their names or their application materials.

However, since Balgamis had been employed at the UW-Madison Memorial Library since 2000, it is reasonable to assume that the members of the search committee, several of whom were affiliated with the library, would have been aware that she is female. Cheun, in contrast, was then employed at Indiana University and apparently had no prior affiliation with the UW-Madison.

The record does not support a conclusion, as a result, that the inclusion of Balgamis, a female, or Cheun, whose gender is not apparent from his application materials, but not complainant, in the interview group, could have been due to sex discrimination.

In addition, as discussed above, those included in the interview group were stronger candidates overall, given the selection criteria, than the complainant, and there is no reason, as a result, to believe that some discriminatory factor played a role in their selection.

The complainant offers several theories in support of her contention that the legitimate, non-discriminatory reason articulated by the respondent for its failure to include her in the interview group, i.e., that her credentials, as set forth in her application materials, were not as strong as those of Biggins, Spencer, Cheun, and Balgamis, was a pretext for discrimination. See, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973).

First, she argues that respondent's failure to follow its own search and screen guidelines demonstrates pretext. The first guideline that the complainant is alluding to in this regard is that requiring that an unranked list of candidates to be interviewed be forwarded by the search committee to the hiring authority. Here, that hiring authority was Ken Frazier, the Director of the UW-Madison General Library System. However, since the complainant's name was not on that list, the fact that the candidates on the forwarded list were ranked rather than unranked could have had no effect on her consideration for the position. Moreover, the evidence of record does not reveal any link between this ranking and the age or sex of any of the candidates. In fact, it is apparent from the record that this ranking was not only unintentional but insignificant to the matters under consideration here.

In addition, the complainant offers the respondent's failure to obtain a position description from the position's supervisor, as set forth in its search and screen policies, as evidence of pretext. However, again, since the record shows that the duties and responsibilities detailed in the position vacancy listing, and the hiring criteria developed by the search committee based on these duties and responsibilities, were reasonably related to the actual duties and responsibilities assigned to the position, this technical failure does not establish pretext.

The complainant also points to statements made in an article written by Frazier, to the effect that new recruits were often more comfortable with technology, as evidence of pretext. However, since Frazier was not involved in the selection of the interview group, any views he may have held could have had no effect on the adverse employment action at issue here.

By offering evidence relating to the unsuccessful applications for promotion of other females over the age of 40 within the UW-Madison library system, the complainant appears to be attempting to prosecute her charge as a class action. However, neither the Equal Rights Division nor the commission has authority under the WFEA to entertain a class action. See, Jones v. Central Regional Dental Testing Service, et al., ERD Case No. 9352630 (LIRC Feb. 29, 1996) (the class action procedure is not available in the administrative processes provided for in the WFEA); Rowser v. Upper Lakes Foods, ERD Case No. 200300509 (LIRC Oct. 29, 2004).

The complainant also appears to be offering a disparate impact theory of sex discrimination by offering data regarding the sex and age of certain hires within the UW-Madison library system. The disparate impact theory of discrimination under Title VII was set forth by the U.S. Supreme Court in Griggs v. Duke Power, 401 U.S. 424 (1971). It has been recognized as being applicable to the Wisconsin Fair Employment Act. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 594-95, 476 N.W.2d 708 (1991); see also Wisconsin Telephone Company v. DILHR, 68 Wis. 2d 345, 368, 228 N.W.2d 649 (1975). Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has a disproportionately adverse impact on a protected group. Disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer's selection device or standard on employees in the different groups being compared. See, Racine Unified School District, supra.; Abaunza v. Neenah Foundry, ERD Case No. 9000749 (LIRC March 30, 1993); Kaczmarek v. City of Stevens Point, ERD Case No. 200200370 (LIRC Aug. 12, 2003). The complainant has failed to offer this type of statistical evidence, and any claim of disparate impact discrimination necessarily fails as a result.

cc: Attorney Nancy K. Lynch

Appealed to Circuit Court.  Affirmed January 22, 2007.  Appealed to the Court of Appeals.  Affirmed in unpublished per curiam decision, January 10, 2008.  Petition for Supreme Court review denied May 13, 2008.

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