STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JULIE A THOBABEN, Complainant

COUNTY OF WAUPACA
SHERIFF'S DEPARTMENT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200602483, EEOC Case No. 26G200601466C


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 makes the following:

FINDINGS OF FACT

1. Waupaca County is a political subdivision of the State of Wisconsin. It is comprised of various units of government and departments, one of which is the Sheriff's Department (hereinafter "WCSD" or "respondent").

2.  The complainant, Julie Thobaben (hereinafter "Thobaben" or "complainant"), a female, began working for the WCSD as a reserve deputy in 1991, initially working at car shows in the summers. She obtained a Bachelor of Science degree (a four-year degree) in criminal justice in 1994. She became a dispatcher in May 1995, and was promoted to a patrol officer in July 1995, the first woman to hold that position in the WCSD and one of the few patrol officers at the time to hold a four-year degree. She was hired through a grant to investigate sensitive crimes, including child abuse and sexual assaults.

3.  Soon after the complainant was promoted, she heard rumors that other patrol officers could not believe that a woman had been promoted to patrol officer. She asked several patrol officers where she stood with them, and they indicated they had no problem working with her.

4.  The complainant delivered some papers to county board officers soon after being promoted, including to the chairperson of the county's law enforcement committee, Jeffers Flink. He told her that he still did not think that women belonged in law enforcement but that she might do okay.

5.  In September 1996, the complainant married Clint Thobaben, who was also employed by WCSD. He had been hired as a corrections officer in February 1995, and became a patrol officer in the summer of 1996. They invited everyone in the WCSD to the wedding.

6.  Waupaca County had an anti-nepotism policy in effect as of December, 1990, (1)  that stated, in part, as follows:

No person shall be employed, promoted or transferred to any department of Waupaca County when such employment would result in that person either directly supervising or being supervised by a member of his/her immediate family without specific approval of the personnel committee.

7. Sometime after December 1990 and as of 2002, the Waupaca County anti-nepotism policy was changed, omitting the provision allowing exceptions with the specific approval of the personnel committee.

8. The definition of "supervisor" in the county's personnel policies, in Section 2, reads as follows:

Supervisor. The person responsible for the assignment, direction and evaluation of the work of another employee, or employees.

9. Amanda Welch has been Waupaca County's personnel director since February, 2000. In that position, she is responsible for the county's personnel policies and procedures, the posting of positions and hiring of employees, and the enforcement of the county's anti-nepotism policy. When she becomes aware of situations that may be in violation of the anti-nepotism policy, she is responsible for taking whatever action is necessary to be sure that the policy is not violated.

10. A chain of command document (2)  describes the hierarchy within the WCSD at all times relevant to the matters at issue here. (3)   At the top of the WCSD's chain of command is the sheriff, who is elected. Next in authority is the Chief Deputy. Below are three captains - an administrative captain, a detective captain, and a patrol captain. Below the administrative captain is an administrative lieutenant who oversees the communications division and the corrections (jail) division. On the communications side is a communications sergeant who directly supervises two shift supervisors, who in turn directly supervise the telecommunicators (dispatchers), who answer 911 emergency calls and dispatch appropriate response units. On the corrections side, are five sergeants who directly supervise the inmate records clerk, transport officers, and corrections officers (jailers). The detective captain is the direct supervisor of the detective sergeants, as well as the records specialist who directly supervises the records clerks. The detective sergeants have no subordinates in the chain of command, and function as detectives. The patrol captain is the direct supervisor of the officers in the emergency response unit (ERU) and the boat patrol, the reserve deputies, and the patrol sergeants. The patrol sergeants are the direct supervisors of the patrol officers.

11. Throughout the WCSD, when the situation demands, the senior officer, regardless of division, is in charge. The WCSD operates with a team concept that involves significant interaction among all employees within the different divisions.

12. It would not be uncommon for patrol sergeants to direct dispatchers in handling calls or other duties. Patrol sergeants work on a daily basis with dispatchers, and dispatchers have been advised that the patrol sergeants function as direct supervisors if the communications sergeant or shift supervisor is not present. Patrol sergeants give directions to dispatchers on a frequent basis, and verbally discipline them, if necessary.

13. Situations arise where a crime or accident investigation, to which a patrol officer was dispatched, would be assigned to the detective division due to the nature of the investigation. Citizen complaints often start with the patrol division, and if complicated, are referred to the detective division. The patrol officer(s) or patrol sergeant at the scene decide if a detective sergeant is needed. If called, the detective sergeant is in charge of the investigation and ensures that certain tasks are performed, such as securing the scene, collecting evidence, taking photographs, or taking witness statements. This involves directing and assigning patrol officer(s) to particular tasks, such as a lead worker might do. Otherwise, if not on the scene, the detective sergeant assigned to the case follows up later with the officers, and moves forward with the case. Any reports written by a patrol officer, as a result of this direction, are passed on to the detective sergeant assigned to the case. In such situations, the detective sergeants have no authority to schedule, evaluate or discipline patrol officers working with them.

14. During the time period at issue, situations might also arise on weekends between 8:00 a.m. and 4:00 p.m., when no patrol sergeants were on duty and a detective sergeant was the most senior person on duty. However, there would also be an on-call supervisor (administrative captain or lieutenant, or chief deputy) who would come in on weekend days.

15. Until sometime in 2006, the patrol sergeants and the detective sergeants were in the same union with the patrol officers and, as a result, were limited in their ability to supervise the patrol officers. In 2006, the patrol sergeants were removed from the union, and received a raise in pay. However, at all times material to the issues involved herein, the detective sergeants and patrol officers have been in the same union.

16. In February 1997, three positions on the Waupaca County ERU, a multi-jurisdictional team including officers from towns in the county, became available. As a result of their duties, members of the ERU team often received overtime pay, and their experience might later be considered for promotional purposes. (4)   The complainant applied, as did her husband Clint, Todd Rasmussen, and Rob Karski - all patrol officers. She was not picked for the position although she had the most seniority in the patrol division of the four candidates. Terry Wilz (subsequently promoted to patrol captain and the complainant's supervisor in 2005 and 2006) was a voting member of the team at that time, and indicated that the reason for her exclusion was that her husband was chosen first, and a concern was expressed that she might freeze if her husband was hurt.

17. In 1998, the complainant was working with patrol officers Tim Wilz (related to Terry Wilz), Scott Lewis, John Macadlo, and Rob Karski. Patrol captain Deitz told her that Wilz, Lewis, and Macadlo had issues with a female officer being senior to them and giving them directions. Around that time a Clintonville police officer told the complainant that he had seen patrol officer Tim Wilz turn his patrol car away from the location about two blocks away where the complainant had made a traffic stop. She advised captain Deitz about the incident.

18. The complainant and her husband worked together on the same shift for about a year and a half (in 1999 and 2000), and she was considered the senior officer (officer in charge) during that time. No one in the WCSD stated that the anti-nepotism policy affected the Thobaben's working relationship, although they were subsequently assigned to different shifts.

19. The complainant received specialized training in sexual assault investigations, child abuse and other domestic violence crimes, and crash investigations. She became a vehicle contact instructor in 2000, and in 2003-2004 became the liaison officer for the community response team for domestic violence.

20. In or around 2001, a patrol sergeant, John Mocadlo, was disciplined for sexual harassment. The complainant had been one of the women who had provided information to her captain about inappropriate comments Mocadlo had made to her of a sexual nature. Mocadlo was demoted, and barred from promotion for five years. As a result, there was tension in the WCSD about the matter, including between Mocadlo and the complainant. Soon after, Don Conat (subsequently promoted to detective captain) observed Terry Wilz speaking to the complainant with his hand on her back. He told Terry Wilz, in front of the complainant, that he better be careful or he would be the next one disciplined. The complainant was shocked by the comment.

21. The complainant unsuccessfully applied for a promotion to detective sergeant in February, 2001; to a patrol sergeant in March 2001; to a detective sergeant in December 2002; and to a patrol sergeant in April 2004. Each time, she was told by the respective captain that the successful candidate had more seniority in the law enforcement division, but she was encouraged to continue applying for promotions by the captains as well as by Amanda Welch, the personnel director. The complainant was the only female patrol officer during this time period. She had never been disciplined, had never been advised of any performance or attendance deficiencies, and was told that she was doing well.

22. During the time period at issue, promotional opportunities were posted internally and the personnel director, chief deputy and/or division captain selected qualified candidates to be interviewed. Those selected were interviewed by a selection committee consisting of the personnel director, a member of the county's personnel committee, the chairperson of the county's law enforcement committee, the chief deputy, and the captain of the respective division.

23. In the selection process, seniority in the law enforcement division, not the entire sheriff's department (which also includes the corrections/jail bureau and the communications bureau), has been an important consideration in promoting within the law enforcement division, and operates as a tie breaker when two candidates are equally qualified. However, seniority has not been the only factor. Other criteria may be considered, such as each candidate's experience, performance on the job, work ethic, honesty, trustworthiness, self-motivation, and attendance. Successful candidates also tend to have attained higher levels of education.

24. In the selection process, the choice of the captain of the respective division carries the most weight, and the selection committee routinely rubber stamps his choice. From January, 1999 to the end of 2006, the sheriff (Liebe) stayed out of the initial selection process because, as an elected official, he did not want politics to play a role in the selection process. However, as the sheriff, he would have the final word, and could overrule the captain and reject a candidate. He did not exercise his veto power often, choosing to do so only when he considered that the candidate was not ready or otherwise not suitable for the promotion. When the sheriff vetoed a selected candidate, the committee would choose another candidate, again deferring to the captain of the respective division.

25. In January 2005, a patrol sergeant position in the WCSD became available. The most senior candidate, John Mocadlo, remained ineligible for disciplinary reasons. The complainant was selected as a qualified candidate and, of the candidates selected, she had the most seniority in the law enforcement division, having been a patrol officer since July 20, 1995. She also had the highest level of education of the qualified candidates, with a bachelor's degree (4 years) (5).   Rob Karski had the most seniority in the sheriff's department, having started as a dispatcher/jailer on March 14, 1994, transferred to a correctional officer on January 1, 1996, and become a patrol officer on January 15, 1997. Todd Rasmussen was the next most senior in the sheriff's department, having started as a dispatcher/jailer on February 14, 1995, and become a patrol officer on July 23, 1995. Both Karski and Rasmussen had less education than the complainant, with associate degrees (2 years) (6),   and Rob Karski had attendance problems.

26. Patrol captain Terry Wilz recommended Todd Rasmussen for the promotion. The selection committee, consistent with its practices, sent that recommendation to the sheriff, who approved the selection.

27. The complainant was surprised that she had not been chosen, and asked patrol captain Terry Wilz why she had not been selected for the position, given her seniority in the law enforcement division. He told her that he needed someone to replace him as a team leader on the ERU. She responded that ERU experience had not been listed as a requirement for the job, and that there were already two sergeants on the ERU who could function as team leader, and he did not say anything. He then told her that her training was more in the detective division, that she appeared more suited to that bureau, and that she should look in that direction. He did not mention the anti-nepotism policy, and he told her that there were no other reasons why she had not been selected.

28. At the time of Todd Rasmussen's promotion to patrol sergeant, his wife was working as a dispatcher for the WCSD. Chief Deputy Kraeger questioned whether the anti-nepotism policy would be violated by Rasmussen's promotion, and talked with the sheriff about his concerns, as he had with at least one other family relationship within the WCSD. However, patrol captain Terry Wilz did not raise the issue, and the matter was never taken to the personnel committee. After Rasmussen was promoted, his wife frequently called him at home with questions, and he gave her advice and guidance when they were both on duty, consistent with the ongoing practice in which patrol sergeants routinely advised and directed the dispatchers.

29. In the summer of 2005, three field training officer positions (a separate position within the patrol division) became available. These positions, like the ERU positions, allowed for overtime pay. The complainant applied for the position, but patrol captain Terry Wilz did not choose her. When she asked him why she had not been chosen, he told her that the training school was expensive, he wanted someone who would stay in the patrol bureau, and it was likely that she would be promoted to detective sergeant soon. He did not mention the anti-nepotism policy.

30. Patrol captain Terry Wilz did not want the complainant to be a patrol sergeant because he did not want a woman in a superior role to the male patrol officers. He was influenced by other patrol officers in the WCSD, who had a similar bias. He was motivated by this discriminatory bias in his refusal to promote the complainant to patrol sergeant in January 2005, and in his refusal to place her in a field training officer position in the summer of 2005.

31. In November, 2005, a detective sergeant position in the WCSD became available. The most senior candidate was still ineligible for disciplinary reasons. The complainant was selected as a qualified candidate and, of the candidates selected, she had the most seniority in the law enforcement division and she had the highest level of education. Rob Karski had the most seniority in the sheriff's department. Both candidates had special training in particular kinds of investigations, the complainant in domestic violence, child abuse, sexual assault, and crash investigations, and Karski in drug and fire investigations. The complainant had no attendance issues, but Karski had been passed over for a promotion ten months earlier due to attendance problems. The complainant had never been told that there were any problems with her performance, and expected that she would receive the promotion.

32. At the meeting of the selection committee, detective captain Conat recommended Karski to the committee for the promotion, describing him as a
go-getter, with enthusiasm for his job. (7)   The selection committee, consistent with its policy, accepted his choice of Karski, sending that selection on to the sheriff, who also approved the selection.

33. The complainant asked Conat why Karski had been selected over her. Conat told her that Karski had more seniority, and when she told him that she had more seniority in the law enforcement division, he responded that Karski had more in the department. She asked him how he would have felt if someone with more time in the department had been promoted over him, when he had more time in the law enforcement division. He did not respond, but changed the subject and said that she had once refused to come to the office to handle a theft complaint. She told him that she had been in another town some distance away doing paperwork, and had just asked if someone else could get the initial information, and when she finished she would follow up with the person who had made the complaint. She had been told by two patrol captains that it was ridiculous to pull an officer off the road if a sergeant was in the office and could get the information, and had followed their advice. Conat also told her that he had heard that she had refused to handle a sexual assault case. She told him she had never refused a case, but that several years after she was hired, the detective captain had told her that other officers were worried she would be the next detective and that, to avoid ill feelings, she would not be handling these kinds of cases anymore. As a result, she had simply asked that the assignment of the case to her be approved by the detective sergeant. Conat did not respond. He told the complainant to hang in there, that another detective sergeant was retiring and his position would become available soon. He did not mention the anti-nepotism policy. (8)  

34. At this time, the complainant had over ten years experience as a patrol officer, had specialized training in several areas, was enthusiastic and passionate about her job as a patrol officer, worked independently without any performance problems, had never before been told that her handling of any of her cases had been inappropriate or inadequate, had no attendance problems, and had never received discipline for any reason. She had the most experience as a patrol officer and the highest level of education of any of the other qualified candidates.

35. Detective captain Conat did not want the complainant to be a detective sergeant because he did not want a woman in a superior role to the male patrol officers. He was influenced by the discriminatory bias of the captain in the other law enforcement division, patrol captain Terry Wilz, and other patrol officers and detective sergeants who were biased against the complainant because she was a female. He was motivated by discriminatory bias in his refusal to recommend the complainant for promotion to detective sergeant in December 2005.

36. The selection committee, as was its practice, accepted the recommendation of Conat, the captain of the division in which the promotion was occurring, and passed that selection on to the sheriff. The sheriff also accepted the captain's selection, as was customary unless he considered that the selected candidate was unfit for the position.

37. A month or two later, in a meeting of the WCSD administrators, including sheriff Liebe, chief deputy Kraeger, and detective captain Conat, patrol captain Terry Wilz questioned whether the anti-nepotism policy would allow the complainant to be detective sergeant since her husband was a patrol officer. He had never considered this to be a problem in her previous promotional efforts. However, he raised this issue at this time because he did not want a woman to be in a superior position to the officers, and he believed that she would receive the next promotion unless the policy could be used to deny her the position.

38. Personnel director Welch joined the meeting to discuss the applicability of the county's anti-nepotism policy to the complainant's potential promotion to detective sergeant. The administrators, including patrol captain Terry Wilz and detective captain Conat, as the two most directly involved in the day-to-day operations of the patrol officers and detective sergeants, discussed the parameters of the detective sergeant job and the duties associated with the job, as well as the written job description. As a result of that discussion, tainted by the discriminatory bias of the patrol captain and the detective captain, the personnel director concluded that it would be a violation of the county's anti-nepotism policy to promote the complainant to detective sergeant, since her husband was a patrol officer. The personnel director agreed to put the matter on the agenda for the next personnel committee meeting, scheduled for March 6, 2006.

39. Prior to this time, personnel director Welch, who was responsible for enforcement of the anti-nepotism policy and involved in choosing qualified candidates for promotions, had never indicated that she believed that the anti-nepotism policy would prevent the complainant from being promoted to either a patrol sergeant or a detective sergeant position while her husband was a patrol officer. She was influenced by the discriminatory bias of patrol captain Terry Wilz and detective captain Conat in adopting the position that it would be a violation of the anti-nepotism policy for the complainant to be in a detective sergeant position at a time when her husband was a patrol officer.

40. Meanwhile, on February 23, 2006, a detective sergeant position in the WCSD was posted as available. The posting closed on March 3, 2006.

41. The most senior candidate, John Mocadlo, remained ineligible for promotion for disciplinary reasons until March 27, 2006. The complainant was selected as a qualified candidate. As was the case several months earlier, of the candidates selected, she had the most seniority in the law enforcement division, and she had the highest level of education.

42. In a meeting on March 6, 2006, the county personnel committee met to consider the impact of the county's anti-nepotism policy on the complainant's application to be promoted to detective sergeant. The committee was made up of chairperson Kay Hillskotter, supervisor Patricia Craig, and supervisor Gary Barrington, as well as the personnel director Amanda Welch. Ms. Welch provided job descriptions of the patrol officer and detective sergeant to the committee members, as well as a copy of the anti-nepotism policy and the county definition of "supervisor."

43. The job description for the patrol officer/deputy position, dated June 2003, includes that the officer works under the close supervision of the patrol sergeant, and that the senior patrol officer acts as a patrol sergeant in the absence of the patrol sergeant and will assume their duties or responsibilities.

44. The job description for the detective sergeant position, dated January 1997, includes that the sergeant works under the close supervision of the detective captain, is the direct supervisor for the patrol officers/deputies as necessary and, in the absence of the patrol sergeants, will supervise patrol officers so that their work is in accordance with the rules, regulations, and policies of the department.

45. The job description for the patrol sergeant position, dated November 2005, includes that the sergeant works under the close supervision of the patrol captain, is the direct supervisor for the patrol officers/deputies, and supervises patrol officers so their work is in accordance with the rules, regulations, and policies of the department. This description was not provided to the personnel committee, nor was the WCSD chain of command document.

46. Present at the March 6th meeting were sheriff Liebe, chief deputy Kraeger, and detective captain Conat. This was the first occasion for the personnel committee to consider whether a working relationship in the WCSD violated the county's anti-nepotism policy. The committee members discussed the matter with the personnel director and the WCSD administrators, and concluded that it would be a violation of the county's anti-nepotism policy for a spouse of a patrol officer to occupy the position of detective sergeant. Even though the sheriff did not believe that this relationship violated the anti-nepotism policy, the committee was influenced by the discriminatory bias of detective captain Conat, as well as by the opinion of the personnel director, an opinion shaped by the discriminatory bias of both detective captain Conat and patrol captain Terry Wilz. The committee meeting lasted no more than 30 minutes.

47. The complainant could have been offered the detective sergeant position, per policy in the personnel department, and it would have been up to her and her husband as to what arrangements they might make to comply with the county's anti-nepotism policy. She was not offered the position, even though she was the most qualified candidate.

48. On March 9, 2006, the sheriff hand-delivered a letter from the personnel director to the Thobabens, stating that a promotion to detective sergeant of one of them would violate the county's anti-nepotism policy, and that the county must follow the policy. He told them that the complainant was the most qualified candidate, and would have gotten the promotion, but for the nepotism policy. He asked them if they thought he should fight the decision.

49. Although for disciplinary reasons Mocadlo remained ineligible for any promotions until March 27, 2006, the county personnel department and the sheriff's department delayed filling the detective sergeant position in order to place him in that position when his disciplinary period ended.

50. Several months later, the personnel director met with the detective sergeants to discuss why they were not being removed from the union (as had been done with the patrol sergeants earlier that year), and one of the reasons she gave was that the detective sergeants did not have the same level of supervisory authority that the patrol sergeants had.

51. Prior to this time, Waupaca County had utilized its anti-nepotism policy on only one occasion. In 2001, when the sister of the assistant finance director applied for a position where the assistant finance director would supervise her, she was not hired due to the anti-nepotism policy.

52. During all relevant times at issue in this case prior to March 2006, the WCSD raised no concerns about nepotism issues with regard to other working relationships, including the following relationships in which a male employee was in a supervisory position:

a. Todd Rasmussen and his wife - patrol sergeant and dispatcher.

b.  Gene Goode and his sister - patrol sergeant and dispatcher.

c.  Carl Artz and his wife - detective sergeant and records clerk (in the detective bureau).

d.  Dennis Bonikowski and his son - reserve captain and sergeant in the reserve unit.

e.  Mike Sasse and his sister - detective sergeant and records clerk (in the detective bureau).

f.  Al Kraeger and his son - chief deputy and reserve deputy.

53. At the hearing, both patrol captain Terry Wilz and detective captain Conat testified that they did not believe that the anti-nepotism policy applied to a patrol sergeant and a dispatcher. Conat said that if the communications sergeant was not on duty, the dispatchers would call him at home on most occasions, and would not look to the patrol sergeant on duty for direction. Terry Wilz said that each division had its own chain of command, and that the captain of each division would take care of issues if the respective sergeant was not available. In the patrol sergeant/dispatcher working relationships, the sergeant was male, and the dispatcher was female. Conat and Terry Wilz did not extend these options in the hypothetical case of the complainant as detective sergeant and her husband as patrol officer, stating instead that the detective sergeant would supervise the patrol officer if the patrol sergeant was not present. Their inconsistent positions are an indication of their bias against the complainant because she is a woman.

54. The degree of supervision provided by a detective sergeant vis-à-vis a patrol officer is incidental and part of the team concept in the WCSD, as it is in the working relationships described above. In each of these situations, the employee in the subordinate position has a direct supervisor identified in the chain of command document, other than the relative.

55. The complainant was the most qualified candidate for promotion to detective sergeant in November 2005 in terms of education, law enforcement experience, special training, and performance; the asserted non-discriminatory reasons provided by detective Conat for failing to promote her were pretextual and unworthy of credence; detective Conat was biased against the complainant due to her gender and did not choose her for that reason; the selection committee accepted Conat's choice, as was its practice; the sheriff accepted Conat's choice, as was his practice, because he did not consider the successful candidate to be unfit; and the ultimate failure by the WCSD to promote the complainant was due to her gender.

56. The complainant was the most qualified candidate for promotion to detective sergeant in March 2006 in terms of education, law enforcement experience, special training, and performance; the assertion of the anti-nepotism policy as a justification for failing to promote her was simply a pretext for not promoting her; patrol captain Terry Wilz raised the anti-nepotism policy with discriminatory bias against the complainant in order to prevent her promotion; detective captain Conat, with discriminatory bias, supported Terry Wilz in convincing the personnel director that the anti-nepotism policy applied to the working relationship of a detective sergeant and a patrol officer; the personnel committee adopted that discriminatorily based decision; and the ultimate failure by the WCSD to promote the complainant was due to her gender.

CONCLUSIONS OF LAW

1. That the WCSD is an employer within the meaning of the Wisconsin Fair Employment Act.

2. That the complainant is a member of a protected class, within the meaning of the Wisconsin Fair Employment Act, in that she is female.

3. That the WCSD violated the Wisconsin Fair Employment Act when it failed to promote the complainant to detective sergeant in November 2005 due to her gender.

4. That WCSD violated the Wisconsin Fair Employment Act when it failed to promote the complainant to detective sergeant in March 2006 due to her gender.

ORDER

1. That the WCSD shall immediately cease and desist from discriminating against the complainant due to her gender.

2.  That the WCSD shall make a written offer of promotion to the complainant to the next available detective sergeant position. This offer shall entitle the complainant to the wages, benefits, privileges and seniority equivalent to that which she would have received if she had been promoted to detective sergeant in November 2005.

3. That the WCSD shall make the complainant whole for all lost wages and benefits she has suffered as a result of its failure to promote her, by paying her the difference between what she has been paid as a patrol officer and what she would have been paid as a detective sergeant, along with any associated benefits, from the date she would have been promoted to detective sergeant in November 2005. This back pay shall be computed on a calendar quarter basis. Additionally, the amount payable to the complainant shall be increased by interest at the rate of 12% per annum, simple interest. The interest is to be computed by calendar quarter, figured from the last day of each quarter to the date payment is made. Pending any and all appeals from this Order, the sum of net back pay plus interest owed for all calendar quarters shall constitute the total back pay owed.

4. The respondent shall also reimburse the complainant for reasonable attorney's fees and costs incurred in pursuing her complaint of gender discrimination under the Fair Employment Act. The reasonable attorney's fees and costs are $63,940 in attorney's fees and $3,086.51 in costs. The reimbursement for attorney's fees and costs shall be made by check made jointly payable to the complainant and her attorney, Colleen Bero-Lehman, and delivered to the office of Ms. Bero-Lehman.

5. Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action it has taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).

Dated and mailed December 23, 2011
thobaju2.rrr.doc : 120 : 5

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

In this case, the ALJ found that the WCSD violated the Wisconsin Fair Employment Act ("WFEA") when it failed to promote the complainant in March, 2006 because of her gender, but did not violate the WFEA when it failed to promote her in November, 2005. Both parties have petitioned the commission for review.

In order to state a prima facie case of discrimination by failure to promote, the complainant must show that she belongs to a protected group, that she was qualified and applied for a promotion, that she was denied the promotion, and that other employees of similar qualifications who were not in the protected group, were promoted instead. It is not necessary for the complainant to establish at this initial stage that she was the most qualified person for the promotion. Foust v. City of Oshkosh Police Dept., ERD Case No. 9200216 (LIRC April 9, 1998), citing Freeman v. Lewis, 675 F.2d 398, 400 (D.C. Cir. 1982) and Bolden v. Wisconsin Telephone Co., ERD Case No. 7605319 (LIRC Aug. 4, 1981). The parties do not dispute that the complainant has made out a prima facie case of discrimination in the November, 2005 promotion and in the March, 2006 promotion (9).

A prima facie case raises a presumption of discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and to rebut that presumption the respondent need only articulate a legitimate nondiscriminatory reason for the action taken. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168 (Ct. App. 1985), citing Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The WCSD has presented nondiscriminatory reasons for its failure to promote the complainant in November, 2005 and again in March, 2006.

The complainant must then establish by a preponderance of evidence that the respondent's stated reasons for failing to promote her were merely a pretext for discrimination. See McDonnell Douglas Corp., above. The commission agrees with the respondent, as it noted in its brief in support of its petition for review, that the main issue in the case is whether the reasons stated by the respondent for its promotion decisions were a pretext for discrimination.

The commission has interpreted "pretext" to mean a "dishonest explanation, a lie rather than an oddity or an error." Bialk v. Aurora Health Care, ERD Case No. CR200700068 (LIRC April 23, 2010). See also Ebner v. Dura Tech, ERD Case No. CR200504645 (LIRC April 23, 2009), quoting Stewart v. Henderson, 207 F.3d 374, 378 (7th Cir. 2000) (the "focus of a pretext inquiry is whether the stated reason for an action is honest, not whether it is accurate, wise, or well-considered").

The complainant must show not only that the respondent's asserted reasons for failing to promote her were false, but that sex discrimination was the real reason. However, she may be able to prove pretext, even in the absence of any direct evidence of discriminatory intent, by showing that the respondent's explanation is unworthy of credence. See Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133 (2000) (such evidence can be quite persuasive and, in appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose); St. Mary's Honor Center v. Hicks, 509 U. S. 502 (1993) (factfinder's disbelief of asserted reasons for action, especially if accompanied by suspicion of mendacity, may, when combined with a prima facie case, suffice to show intentional discrimination); Kurtzweil v. GPI Corporation, ERD Case No. CR 200002364 (LIRC Aug. 27, 2004) (several factors, including the ALJ's credibility assessment, cast doubt on the veracity of the individual who terminated the complainant, including the "complete absence of anything negative about [the complainant] in his personnel file"; Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003) (an explanation for employer's action that is unworthy of credence is one form of circumstantial evidence that is probative of intentional discrimination).

On the other hand, if the respondent genuinely believed its asserted nondiscriminatory reason to be true, even if it was mistaken, the respondent cannot be found to have had discriminatory intent. Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008). As noted in Gordon v. United Airlines, Inc., 246 F.3d 878, 889 (7th Cir. 2001), citing Stewart v. Henderson, 207 F.3d 374 (7th Cir. 2000), courts do not sit as a superpersonnel department to second guess an employer's business decision.

Nevertheless, as the Gordon court continues, "we need not abandon good reason and common sense in assessing an employer's actions." Gordon, at 889. Quoting Collier v. Budd Co., 66 F.3d 886, 893 (7th Cir. 1995), "if the employee offers specific evidence from which the finder of fact may reasonably infer that the proffered reasons do not represent the truth, the case then turns on the credibility of the witnesses." Id.

The commission notes that the credibility of the witnesses is particularly significant in this case, where the motives of the respondent's decision-makers are at issue. In its analysis, the commission has looked at the history of the respondent's promotional decision-making and its enforcement of its anti-nepotism policy, as well as the complainant's experiences as a patrol officer. The respondent's actions toward the complainant and others in the WCSD during the complainant's tenure with the WCSD are clearly relevant to the issue of whether its failures to promote her in November, 2005 and again in March, 2006 were discriminatory, based upon her gender. In addition, a time table is helpful in evaluating how decisions made by the respondent in the past may have shaped subsequent promotional decisions or demonstrated patterns and practices within the WCSD. That such events occurred outside the statute of limitations in the case concerns only the weight to be given that evidence, not whether the evidence is admissible, although the remoteness in time of the events may limit their usefulness. See Abbyland Processing v. LIRC, 206 Wis. 2d 309, 557 N.W.2d 419 (Ct. App. 1996).  
 

November, 2005 promotion

In his decision, the ALJ found that the complainant was not chosen for this promotion to detective sergeant because the selection committee felt that Karski was more of a "go-getter" than the complainant. In his memorandum opinion, the ALJ stated that this claim by the respondent was suspect, but that there was insufficient evidence presented by the complainant to show that this reason was a pretext. The commission disagrees.

First of all, although the promotion recommendation came from the selection committee, the evidence established that the committee operated as a rubber stamp in deferring to the respective division captain of the WCSD in making its recommendation. In this case, the captain for the detective division, Don Conat, made the recommendation to promote Karski rather than the complainant. For reasons stated below, the commission finds that Conat's reasons for choosing Karski and not the complainant are unworthy of credence and motivated by discriminatory bias. In such a situation, that discriminatory motive may be imputed to the selection committee, an otherwise unbiased decision maker.

In the Seventh Circuit case of Shager v. Upjohn Co., 913 F.2d 398 (7th Cir. 1990), the court reversed a summary judgment in favor of the employer. The court decided that, even though an unbiased career path committee made the decision to terminate Shager, it might be found that the committee had been decisively influenced by Shager's hostile supervisor (an agent of the employer) who, with discriminatory bias, had exaggerated Shager's deficiencies to the committee. If the committee "acted as a conduit of [the supervisor's] prejudice -- his cat's paw - the innocence of its members would not spare the company from liability." Id. at p. 405. The commission cited the Shager case in Haecker v. Charter Steel, ERD Case No. CR200002629 (LIRC Jan. 28, 2003), a case in which a human resources supervisor discharged the complainant in the course of disciplining him. The complainant argued that the supervisor was relying on information and recommendations from his supervisors who were prejudiced against him due to his sexual orientation. The commission noted the cat's paw analysis adopted in Shager, but declined to find that it was applicable in Haecker because the complainant was discharged due to inappropriate behavior during the disciplinary meeting with the human resources supervisor. As noted by the complainant in this case, this legal rationale is an important one, ensuring that an employer with a discriminatory motive cannot hide behind an isolated personnel decision maker.

It is, therefore, necessary to look at the reasons why Conat, the respondent's agent, preferred Karski to the complainant. He testified at the hearing that he chose Karski for the promotion because patrol captain Wilz told him that the complainant was a little lazy and that Karski always did more than he was asked to do; that a patrol sergeant told him that the complainant had refused to accept a sexual assault case; that a couple of detectives were positive about Karski and wanted him to be chosen; that Karski had some training in drug and fire investigations and had a reputation as a go-getter; that, at a time when Karski and the complainant were assigned to light-duty work, he had observed Karski working hard and the complainant acting like she did not want to be there; that he had sent some of the complainant's reports back for additional work; and that in 2000 she had failed to adequately follow through when checking on the welfare of an individual who had hanged himself soon thereafter.

Conat did not ask the complainant for her side of the story on any of these performance issues, and acknowledged that she had not been disciplined for any of these alleged incidents. It seems incredible to the commission that, had the complainant refused to accept a case, she would not have incurred some kind of discipline. In addition, the commission considers it highly unlikely that Conat never asked other patrol officers to follow up on certain matters, and questions why he would bring up a matter that occurred in 2000 and for which the complainant received no discipline.

Patrol captain Terry Wilz, the complainant's supervisor at the time, testified that, after he was told that the complainant had refused to take a sexual assault case, he thought that Karski was the better candidate for the promotion. He did not ask the complainant about the allegation that she had refused to take a case, nor did he discipline the patrol sergeant who had made the allegation for failing to document the complainant's refusal or for failing to report the incident to him. He never stated during his testimony that he considered the complainant to be "a little lazy."

Furthermore, with regard to Karski's attendance problems, sufficiently problematical that they resulted in Karski being passed over for a promotion ten months earlier, Conat testified that he thought that someone had told him, possibly another patrol officer, that Karski's attendance problems related to his mother staying with him while she was dying of cancer, and that his attendance had improved. He accepted that account without apparent confirmation of its accuracy.

The commission finds these explanations by Conat and Terry Wilz to be without merit. In fact, during the commission's credibility conference discussion with the ALJ, the ALJ recalled that neither Conat nor Terry Wilz were credible witnesses, particularly in their testimony about problems with the complainant's performance. They squirmed, looked away, smiled nervously at times, particularly Conat. The ALJ did not believe them in their criticism of the complainant's performance, and said that it was almost embarrassing to watch Conat testify because he was clearly not being honest. In contrast, the ALJ found the complainant and her husband very credible and forthright in their testimony, as well as the witnesses who testified that the complainant was enthusiastic, self-motivated, and thorough in her work, and would never refuse a sexual assault case.

In addition, although the commission agrees with the respondent that subjective criteria, such as being a "go-getter," being lazy, or appearing unhappy to be at work, are appropriate and valuable tools in assessing the respective qualifications of candidates for promotion, see Blise v. Antaramian, 409 F.3d 861 (7th Cir. 2005), the commission also notes that when a candidate is in a protected class (for example, a woman) and is in the minority in the workplace (in the complainant's case, a minority of one) it is appropriate for the fact finder to more closely scrutinize the use of such subjective criteria. See Howard v. City of Madison, ERD Case No. 8300879 (LIRC Feb. 24, 1987) (issue of discrimination based on race). That is particularly so in a case such as this one, in which credibility and motive are critical.

In its reply brief to the commission, the respondent argues that the respondent's hiring history does not establish a pretext for sex discrimination in this case, and cites to the respondent's hiring history for sergeant promotions since the complainant was hired in the department in May 1995 through March 2006 (10).  The commission reads the history somewhat differently.

The respondent argues that fourteen sergeant positions have become available during that time and, of those positions, only three went to the person with the most seniority, in February 2001, in March, 2001, and in March, 2006 (after the complainant was rejected for consideration). However, the respondent missed two other promotions that went to the person with the most seniority - in November, 1997 and April, 2004, for a total of five. The commission would also add that in two promotions in January, 1997, in one promotion in November 1997, and in one promotion in December 2002, the successful candidate had more education than the candidate with the most seniority. Therefore, there are nine promotions out of fourteen with seniority or education determining the successful candidate. Of note, Don Conat in June, 1995 and Terry Wilz in January 1997 were not the most senior candidates chosen in those promotions, nor was John Mocaldo in February, 1999. In the other two promotions, in January, 2005 and in November, 2005, the complainant was the most senior candidate in the law enforcement division and had more education than the other candidates, and yet she was passed over.

It is also instructive to look at the most recent promotions, ones in which the complainant was a candidate. In all of these cases, Sheriff Liebe was the sheriff, having assumed the position in 1999. Of these seven promotions, the first two went to the senior patrol officer (February and March 2001); the next went to the candidate with a bachelor's degree, rather than the most senior patrol officer, who had an associate's degree (December 2002); the next went to the senior patrol officer who was eligible since one candidate was disqualified (April 2004); the next went to someone with less seniority and less education than the complainant (January 2005); the next two were the November 2005 promotion and the March 2006 promotion at issue.

The commission details this promotional history not because it believes that seniority has been the only criterion for promotions in the WCSD. It has not been the sole criterion for advancement. However, as noted above, objective criteria for advancement, including seniority and education, have played a major role in determining who is given a promotion to sergeant in the WCSD. In the last three promotions - January 2005, November, 2005 and March, 2006 - the complainant was the most senior candidate in the patrol division, had more education than the other candidates, had specialized training, had no attendance issues, and had no disciplinary issues. Nevertheless, she was not chosen.

Therefore, the key question is why was the complainant not promoted to the position of detective sergeant? Did Conat simply make a poor decision, reasonably believing that the complainant was not the most qualified candidate and then try to justify it later, or was he biased against the complainant from the beginning because she was a woman?

The commission is persuaded that the evidence supports a conclusion that discriminatory bias animated Conat's decision not to promote the complainant, and not poor judgment. When the complainant was initially hired as the first woman patrol officer, there were some in Waupaca County administration and in the WCSD who were not sure that a woman patrol officer could do the job, or were concerned that she might freeze in certain situations, and they expressed those reservations. In addition, the complainant understood that certain patrol officers were upset that she had been hired as a patrol officer, and did not want a woman to be in a position superior to patrol officers and able to give them directions. In 2001, a patrol sergeant was demoted to patrol officer and barred from promotion for five years as a result of sexual harassment, causing tension in the WCSD. The complainant had been one of the women who had provided information about his sexually inappropriate conduct. After the patrol sergeant was disciplined and demoted, there was an incident in which Conat had told Terry Wilz that he better not put his hand on the complainant's shoulder or he might be the next one to be disciplined. The patrol officer disciplined continued to work as a patrol officer, and resumed applying for promotions in 2004, competing against the complainant even though he was not eligible.

Given this background, as well as the false and incredible nature of Conat's and Terry Wilz's testimony, the commission finds it reasonable to infer that Conat, as agent for the respondent and the actual decision-maker for the November, 2005 promotion, dissembled to cover up his discriminatory purpose. He fabricated deficiencies in the complainant's performance to justify his choice of another candidate, and Terry Wilz backed him up. He did so because he did not want a woman in the position of detective sergeant.

There is no dispute that the complainant had more education than Karski, more experience in the law enforcement division, and training and experience in sensitive crimes, such as child abuse, sexual assault, and domestic violence. There is also no dispute that she had never been disciplined for any performance issues and had no attendance problems. She was an obvious choice for promotion, especially to a detective sergeant position, and there were no other reasons, other than bias against a woman in a position as sergeant, for Conat to ignore the complainant's obvious and superior qualifications and to choose another candidate who had recently been rejected for promotion due to attendance problems.

Conat presented his choice to the selection committee, an unbiased decision-maker, who rubber stamped his choice, as was their practice. This choice was then presented to the sheriff, who accepted the choice of the captain of the division in which the promotion was occurring, as was his practice, since he did not believe the successful candidate was unfit for the promotion. In this way, the decision by Conat, the biased individual, decisively influenced the selection committee and the sheriff, and Conat's discriminatory motive is attributed to the WCSD. 
  

March, 2006 promotion

In his decision, the ALJ found that the complainant's disqualification for this promotion under the anti-nepotism policy was pretextual, and that her gender was a factor in the respondent's failure to promote her to detective sergeant in March, 2006. In his memorandum opinion, the ALJ stated:

Where the policy was not raised when Thobaben was clearly ineligible (11);   where it was not applied in several cases, involving the same or higher level of supervision and the supervisors were male; where seniority seemed to play a significant role in promotions and yet played none here; where Thobaben was deemed the most qualified candidate and yet some six months earlier was believed to be guilty of insubordination, it is difficult to escape the conclusion that the bar to Thobaben becoming a Detective Sergeant was her gender.

The commission agrees.

The respondent argues that the factual findings made by the ALJ are incomplete and inaccurate, and that the ALJ misstated and misanalyzed the main issue in the case. Although the commission has reached the same decision as the ALJ did, it agrees that the ALJ's factual findings are incomplete and has, after a thorough review of the record, written its own findings of fact. The commission also agrees with the respondent that the case does not come down to the definition of "direct supervisor" in the county's anti-nepotism policy, but rather the main issue is whether the respondent's stated reason for failing to promote the complainant to detective sergeant in March, 2006 was a pretext for discrimination. The commission does, however, consider the reasonableness of the personnel committee's decision on the nepotism issue to be a relevant factor in determining whether the anti-nepotism policy was a pretext for the respondent's failure to promote the complainant.

The respondent also disputes that the WCSD administrators (the sheriff, chief deputy, and detective captain Conat) were motivated by a discriminatory intent in bringing the anti-nepotism policy to the personnel committee during the March 2006 promotional decision-making process, and argues that the ALJ did not properly apply the commission's pretext analysis in Sult v. Jerry's Enterprises, Inc., ERD Case No. CR200402634 (LIRC Feb. 8, 2008). If, by the latter, the respondent is referring to the summary nature of the ALJ's analysis, the commission agrees. However, the Sult analysis does not change the commission's decision on the issue.

In Sult, the commission articulated an analysis for pretext as follows:

"A plaintiff may demonstrate his (or her) employer's reason is pretextual, i.e., that it is 'deceit to cover one's tracks,' by showing 'the reason (1) had no basis in fact; (2) did not actually motivate [the adverse employment action]; or (3) was insufficient to motivate [the adverse employment action]'." Davis v. Wis. Dept. of Corrections, 445 F.3d 971, 977 (7th Cir. 2006), citing Davis v. Con-Way Trans. Cent. Express, Inc., 368 F.2d 776, 784 (7th Cir. 2004).

In that case, the complainant was alleged to have required a subordinate to work off the clock, resulting in her discharge for violating a zero-tolerance policy. However, the commission affirmed the ALJ's finding of discriminatory intent (based on a perceived disability) in the discharge of the complainant, finding that the respondent's asserted reason for the discharge was insufficient to have motivated the discharge. The ALJ had found the allegation against the complainant so outrageous that the decision-maker could not possibly have believed it, especially since the decision-maker did not investigate the allegation with other coworkers or with the complainant, and replaced her with an employee who had previously been discharged for disciplinary reasons. In looking to whether the decision-maker actually believed the allegations, credibility was a significant factor. Citing Reeves, the commission approved the ALJ's determination that the decision-maker's asserted bases for deciding to discharge the complainant were "unworthy of credence."

The Sult analysis is useful, as are other previously cited commission cases analyzing pretext, and supports the commission's conclusion that the respondent's assertion of the anti-nepotism policy in March, 2006 was a pretext to justify its failure to promote the complainant at that time.

First of all, credibility is again an important consideration. Patrol captain Terry Wilz brought up the anti-nepotism policy all of a sudden, never having previously indicated that he considered it relevant to the complainant's advancement opportunities in the WCSD. Captain Wilz had failed to recommend her for promotion to patrol sergeant in January, 2005 and for a field training officer position in the summer of 2005, telling her that he had no problems with her performance, but that she seemed more suited to a detective sergeant position. Several months later, he told detective sergeant Conat that he thought the complainant was a little lazy, and that he had heard from a patrol sergeant that she had refused to take a sexual assault case. He had not disciplined the male patrol sergeant for failing to tell him about the complainant's actions, nor had he ever spoken to the complainant about it. As noted in the discussion of the November, 2005 promotion above, these allegations were not worthy of credence, and evidenced a bias against the complainant, the only female patrol officer. Also, as noted above, the ALJ did not find Captain Wilz to be a credible witness, especially when it came to issues relating to the complainant's deficiencies.

As a result of the anti-nepotism issue being raised by patrol captain Wilz, the personnel director was brought into the discussion during a meeting of the WCSD administrators, including the other law enforcement division's captain, detective captain Conat, another person who was biased against the complainant because she was a woman. The commission finds it reasonable to infer that these two captains exercised an especially powerful authority during this meeting, given that they were the individuals in command of the law enforcement divisions, and were routinely deferred to in matters of promotion and personnel. This may explain why personnel director Welch suddenly adopted the opinion that the complainant's promotion to detective sergeant would violate the county's nepotism policy given her husband's position as a patrol officer, and suggested that the matter be presented to the county's personnel committee.

The commission is deeply troubled by this chain of events. Not one of the complainant's supervisors had indicated a concern over her promotional opportunities due to the anti-nepotism policy over the course of the previous five years and her six previous efforts at promotion, including efforts to be promoted to a patrol sergeant, where the matter of direct supervision was so much stronger. The county's personnel director, with knowledge of the job descriptions and the responsibility to ensure that the county's anti-nepotism policy was properly enforced, had determined that the complainant was qualified to apply for the promotions, had never indicated a concern that the complainant's promotion to patrol sergeant or detective sergeant would violate the anti-nepotism policy, and had encouraged her to continue applying for promotions.

Nevertheless, at the personnel committee meeting, with the two job descriptions, the nepotism policy, and the definition of "supervisor" provided to them, the personnel committee, after discussion with the personnel director, the sheriff, the chief deputy, and detective captain Conat, decided that the anti-nepotism policy applied to a detective sergeant with an immediate family member as a patrol officer. In fact, as a result of the discussion and the documents provided, one of the members of the committee understood that sergeants were responsible for supervising those in any positions subordinate to them. Of course, under this scenario, the patrol sergeants would be responsible for supervising dispatchers. Todd Rasmussen and his wife would be in violation of the anti-nepotism policy, as would Gene Goode and his sister. However, the personnel committee was never called upon to consider whether these working relationships violated the anti-nepotism policy. Nor were they ever called upon to determine whether a detective sergeant and a records clerk (in the detective division) who were related - Carl Artz and his wife, and Mike Sasse and his sister - were in violation of the anti-nepotism policy. Nor did they consider whether a reserve captain and sergeant in the reserve unit (Dennis Bonikowski and his son) were in violation of the anti-nepotism policy, or whether chief deputy Kraeger and his son, a reserve deputy, were in violation of the anti-nepotism policy.

The commission does not pretend to decide these questions of supervisory authority. That is for the county's personnel committee to decide. However, it is inexplicable to the commission why, given these numerous relationships of related individuals working together, these relationships were not brought to the personnel committee for review. The commission finds it most reasonable to infer that these relationships were not brought to the attention of the personnel committee for review because there was not one captain (or other administrator) who disapproved of these working relationships because the superior was a male. However, when a female was in the potential position of being in a superior relationship to males, that became a matter of concern to at least the two captains of the law enforcement divisions. That would also explain why the personnel director, who had allowed the other potentially nepotistic relationships in the WCSD to continue since the WCSD seemed content with the arrangements, suddenly changed her position to support the WCSD, now opining that promotion of the complainant to detective sergeant would violate the anti-nepotism policy since her husband was a patrol officer.

The personnel director's role is puzzling. The ALJ found her to be a credible witness. However, her position in relation to enforcement of the anti-nepotism policy is disturbing. Furthermore, several months after the March, 2006 promotion, she met with detective sergeants to discuss their request to leave the union with the patrol officers, and told them that they would not be removed. This was due, in part, to the lesser level of supervisory authority that they had vis-à-vis the patrol officers. This position certainly seems inconsistent with her position just months earlier regarding the detective sergeants' direct supervisory relationship with patrol officers.

In fact, the job description for patrol officers includes a provision in which the senior patrol officer is charged with acting as a patrol sergeant in the absence of the patrol sergeant, and assuming the patrol sergeant's duties or responsibilities. This is consistent with the chain of command document, setting out the hierarchical divisions within the WCSD, and undercuts the degree to which a detective sergeant would be called upon to "supervise" patrol officers.

In addition, the county's policies define "supervisor" as the person responsible for "the assignment, direction and evaluation of the work of another employee, or employees." If this definition applies to detective sergeants vis-à-vis patrol officers, it certainly applies to patrol sergeants vis-à-vis dispatchers. They work together on a daily basis, including when the dispatchers' immediate supervisor is not present. Substantial evidence was presented, including from two dispatchers and a retired patrol sergeant, that patrol sergeants directly supervise dispatchers, including assigning, directing, evaluating, and even disciplining dispatchers, when necessary.

Furthermore, the definition of "supervisor" in the county policies would certainly apply to a detective sergeant and a records clerk, who types reports for the detectives. Both are in the detective division, and they work together on a daily basis. The detective sergeant clearly assigns and directs the records clerks in the preparation of the reports, and presumably evaluates their work, at least to the same extent that a detective sergeant would evaluate the work of a patrol officer. It goes without saying that nepotism issues are raised when the reserve captain has a son in the reserve unit working as a sergeant, and when the chief deputy's son is a reserve deputy.

Finally, detective captain Conat could have recommended the complainant for the detective sergeant position, as she was clearly the most qualified candidate for the position, contingent on her husband transferring out of the patrol division. The selection committee and the sheriff could have accepted his recommendation, with the same contingency. The personnel director considered that to be the correct method of proceeding. However, there is no evidence in the record that the complainant was ever offered that option.

In summary, the cumulative impact of all of these actions and inactions by the WCSD, precipitated and influenced by the discriminatory bias of the captains of the detective and patrol divisions, particularly the clearly inconsistent treatment of the anti-nepotism policy by the WCSD (12)   and its discriminatory treatment of the complainant months earlier, leads the commission to conclude that the anti-nepotism policy was simply a pretext by the WCSD, through its agents, to deny the complainant a promotion, due to her gender. (13)  
 

Remedy

The commission notes that during the pendency of this case, the WCSD may have changed its structure and the complainant's situation may have changed. The promotions at issue occurred in November, 2005 and March, 2006; the hearing took place over four days in October, November, and December, 2007; the ALJ issued his decision on March 4, 2010; and the commission is issuing its decision in December, 2011. Therefore, it has been over six years since the first promotion at issue. The commission regrets that the parties have been required to wait so long for resolution of these matters.

Since the commission is without information as to what has happened in the WCSD in the intervening years, it has considered a remand for a hearing on the appropriate remedy, taking into consideration any relevant events that may have occurred. However, given the length of time that has passed already, the commission is loathe to delay ordering relief to the complainant. Accordingly, it chooses to fashion an appropriate remedy, using the evidence that is available to it.

In his decision, the ALJ ordered the WCSD to promote the complainant to the next available detective sergeant position. In her petition for commission review, the complainant has requested that the commission modify the ALJ's order and order her immediate placement into a detective sergeant position, rather than the next position that becomes available. The complainant argues that the position rarely becomes available, it is unlikely that she would be placed into the position in the near future, and immediate placement is the only way to effectuate the purposes of the WFEA to "make whole" the victims of discrimination. The complainant also asserts that the difference in pay between a detective and a patrol officer is minimal, and that the real damage to her has been not getting the detective position.

In his decision, the ALJ reasoned that, although it is not fair to make the complainant wait for a promotion she was unlawfully denied, it is also not fair to remove a person from a job he had held for almost four years. In addition, the ALJ expressed concern for the impact that such a displacement might cause in a law enforcement agency in a relatively small community. Specifically, he noted that cohesiveness and absolute trust in one another is critical in an environment where officers are regularly exposed to dangerous situations, and that bitterness and resentment about a removal might cause dysfunction in the WCSD. He also noted that the WCSD could add another detective sergeant position, and promote the complainant immediately.

In support of her argument, the complainant cites to a case, Ramos v. Stoughton Trailers, ERD Case No. 199503384 (LIRC Aug. 16, 2001) (14),   in which the commission did not order another worker to be bumped in order to reinstate the complainant, but did recognize a precedent in federal law for bumping or displacing an incumbent employee in order to reinstate someone who had been unlawfully discriminated against, specifically Lander v. Lujan, 888 F.2d 153, 156 (D.C. Cir. 1989). The Lander case involved a federal bureau's top administrative position, and the court affirmed the lower court's order bumping the incumbent from the position, and reinstating the person who had been previously demoted from the position due to unlawful discrimination. The court found such a remedy appropriate in that case because the position was unique, high-level, and without a reasonable substitute. There was only one top administrative job in the bureau. However, in so doing, the court recognized the "painful choice between the reliance interest of the innocent incumbent and the claims of a victim of discrimination." Id. See also Walters v. City of Atlanta, 803 F.2d 1135 (11th Cir. 1986) (bumping ordered in case in which the employer repeatedly discriminated and retaliated against the complainant after it was put on notice of past illegal discrimination against the complainant, plus a unique position involved).

In Ramos, the commission cited another federal case, Hicks v. Dothan City Bd. of Ed., 814 F. Supp. 1044, 1050 (M.D. Ala. 1993), in which the district court refused to order displacement of another employee, in fashioning appropriate preliminary relief for the complainant (15).   The Hicks court recognized that it had equitable discretion to grant equitable relief to make the plaintiff whole but stated:

In exercising this discretion, a district court should be guided by the notion that "bumping can be a problematic remedy in Title VII cases, to the extent that someone other than the wrongdoing employer is made to pay for the employer's violation." Lander, 888 F.2d at 159 (R.B. Ginsburg, J., concurring). Displacement should, therefore, "be used sparingly and only when a careful balancing of the equities indicates that absent 'bumping,' plaintiff's relief will be unjustly inadequate (Citing, Walters v. City of Atlanta, 803 F.2d 1135, 1149 (11th Cir. 1986)."

The Hicks court listed a number of factors to consider in determining whether bumping is appropriate, including the following: 1) effect on the plaintiff of the refusal to displace; 2) culpability of the incumbent; 3) disruption to the incumbent; 4) degree of culpability of the employer; 5) uniqueness of position and availability of comparable positions; 6) the plaintiff's diligence in taking steps to assure that the position remains available should the plaintiff prevail; and 7) undue disruption of the employer's business. The court stated that no one of these factors is necessarily determinative, and also that not all of the factors will always be relevant. Id.

The commission notes that several of the Hicks factors might support the complainant's argument that she be permitted to bump an incumbent detective sergeant, and be immediately placed in a detective sergeant position. There is certainly an adverse effect on her by a refusal to displace another person in order to immediately promote her. She has been unfairly denied promotion into this position for over six years, and the back pay award does not provide the relief she seeks, specifically the duties and responsibilities of detective sergeant. On the other hand, the Hicks court noted that the reasons for bumping may be less compelling in a case in which the complainant is the victim of an illegal denial of a promotion, since the complainant may still be able to pursue her profession, although not at the level sought, pending the availability of a comparable position.

As to the factors relating to the culpability of the incumbent and disruption to the incumbent, an argument could also be made both ways, at least with regard to Mocadlo. (16)   He was previously removed from a patrol sergeant position due to sexual harassment issues, including inappropriate comments to the complainant. Accordingly, he is not the most sympathetic incumbent, and has already experienced disruption in his work due to his own improper conduct. However, the evidence does not establish that he is culpable in the respondent's discriminatory failures to promote the complainant, and displacement of him from detective sergeant would certainly be further disruption to him.

In addition, the culpability of the WCSD is significant, having unlawfully denied the complainant at least two promotions due to her gender. However, in contrast to the Walters case, the WCSD had not been put on notice of past illegal discrimination against the complainant at the time of the promotions at issue, and subsequently continued its discriminatory behavior after notice.

Other factors applicable in this case relate to whether the detective sergeant position is unique and whether comparable positions are available. The detective sergeant position is not unique, and there were four detective sergeants in the WCSD at the time of the promotions at issue. The record reflects that, between June, 1995 and March, 2007, there have been eight detective sergeant openings, occurring every couple of years. Of course, the age of incumbents is a factor in the frequency of such openings, and the complainant argues that the current four detective sergeants were promoted relatively recently (2001, 2003, and the promotions at issue here in 2005 and 2006) and may not be vacating those positions anytime soon. The commission appreciates that argument, especially in light of the time that has passed since the promotions at issue. However, the fact remains that the detective sergeant position is not a unique one and there are four positions, any one of which could become available. Therefore, this factor weighs against the displacement of an incumbent and the immediate placement of the complainant.

The final applicable factor relates to whether displacement of an incumbent and immediate placement of the complainant would cause undue disruption of the employer's business. The commission sees both sides to this factor. Disruption certainly already exists at the WCSD, as a result of its unfair failure to promote the complainant on two occasions, and the bitterness and resentment felt by the complainant and her husband, as well as by the complainant's supporters. The WCSD brought that disruption on itself with its discriminatory actions against the complainant. Trust and team work have already been compromised by the WCSD's actions. However, displacing a detective sergeant who has occupied the position for some time and relied on his continuing employment in that job, would cause additional disruption to an already stressed law enforcement community.

The commission notes that, should a detective sergeant position become available, and the WCSD continue to fail to promote the complainant, the evaluation of the Hicks factors might well result in a different conclusion by the commission. The complainant has been an innocent victim, and is certainly not "made whole" if not given the promotion she was unlawfully denied and has repeatedly applied for over the last ten years. However, the commission must balance the equities and, based upon its analysis of relevant factors, agrees with the ALJ that, at this time, this is not an appropriate case for the bumping of an incumbent detective sergeant in order to immediately place the complainant in a detective sergeant position if one is not available.  


Attorney's fees 
 

Proceedings before the ALJ - The respondent questioned the ALJ's award of attorney's fees to the complainant, based on his decision finding discrimination by the respondent on just one of the complainant's two claims. That partial success argument is no longer applicable, since the commission has found for the complainant on both of her claims. The complainant is entitled to reasonable attorney's fees, without a reduction on that basis.

The complainant has not appealed the ALJ's decision that $200/hour is a reasonable hourly rate for her attorney, nor has she appealed his reduction of attorney hours in summarizing the transcripts and writing the post-hearing brief and reply brief from 94.5 to 47.25 hours. The commission finds this decision by the ALJ to be appropriate, specifically the award of $52,440.00 in attorney's fees and $3,086.51 in costs. 
 

Complainant's petition for commission review of ALJ's decision relating to the November, 2005 promotion - The complainant prevailed on this claim, and is entitled to reasonable attorney's fees. She has requested attorney's fees in the amount of $5,500 - 27.5 hours at $200 per hour, and has provided an itemization of the hours spent, identifying the specific work done each day.

In response to this request, WCSD objects that 27.5 hours is excessive because many of the arguments made in complainant's petition for review were made in her post-hearing brief. WCSD argues that, if the complainant prevails, her attorney fee petition should be reduced by about 50%.

The complainant's attorney responds by noting that the petition was prepared and written almost 2 1/2 years after the last date of a four-day hearing, and that she spent ample time re-reading the respondent's original arguments and the transcripts. The commission agrees that, given the time taken by the ALJ to decide this case, more time than usual would likely have been required to prepare and write the review petition in this case. In addition, it does not appear that the hours spent by the complainant's attorney, reviewing the briefs and the transcript of a four-day hearing, researching specific legal issues pertinent to the petition, and preparing the review petition, were excessive.

There is also support in commission cases for finding that 27.5 hours spent on a brief for commission review is not unreasonable. In Van Den Elsen v. County of Brown, ERD Case No. CR200100007 (LIRC June 14, 2005), the commission dealt with a similar issue, although the disputed attorney's fees related to the complainant's response to the respondent's petition for review. The complainant in that case petitioned for attorney's fees totaling 35.75 hours for the primary attorney, and the respondent argued that the amount of hours spent on the brief (30.75) was excessive because the brief to the commission was substantially similar to the post-hearing brief. A law clerk had reviewed the hearing transcript that was about 850 pages long (this case had about 800 pages, and the complainant's attorney did not have a law clerk assisting her), and the primary attorney had prepared a 37-page brief. The commission found that the primary attorney had spent about 17.5 hours specifically on the brief, with an additional 5.25 hours by the law clerk and the other attorney, totaling 23 hours, and that this amount of hours was not unreasonable. The commission also found that, although the post-hearing brief and the commission brief covered some of the same ground, they were not strikingly similar or duplicative.

In another commission case,  Rodriguez v. Flash, Inc., ERD Case No. 200004254 (LIRC Jan. 28, 2003), the commission, after deducting duplicative entries, found 29.9 attorney hours of service related to filing a petition for commission review to be reasonable.

In this case, the complainant's attorney spent less than 23 hours specifically on writing the commission brief. In addition, although there is, of necessity, some repetition relating to the applicable law and factual findings in the post-hearing brief (53 pages in length) and the commission brief (28 pages in length), the commission brief is not duplicative, it focuses on the November 2005 promotion, and it includes additional legal citations for the arguments being made. Given the length of the hearing and the passage of time between the hearing and the preparation of the commission brief, the commission is persuaded that additional attorney hours were warranted.

The commission notes that the complainant's attorney has included .5 hours of discussion of the case with an EEOC attorney. She has not explained how that would be relevant to this state case and, accordingly, the commission has removed this item, reducing her hours by .5, resulting in 27 hours, at $200/hour - an award of $5,400.
 

Complainant's brief in reply to respondent's petition for commission review of the March, 2006 promotion - The complainant prevailed on this claim, and is entitled to reasonable attorney's fees associated with her reply brief. She has requested attorney's fees in the amount of $6,100 - 30.5 hours at $200 per hour, and has provided an itemization of the hours spent, identifying the specific work done each day.

The respondent has not filed an objection to this attorney's fees request, and in the absence of such an objection or a fees request that is clearly excessive, the commission considers the request to be a reasonable attorney's fee for the time expended in connection with preparation of the reply brief, and awards payment of $6,100.

In sum, the commission awards attorney's fees to the complainant in the amount of $63,940 and costs in the amount of $3,086.51, for a total of $67,026.51.

 


LAURIE R. MCCALLUM, COMMISSIONER (concurring in part and dissenting in part):

I concur with the majority with regard to the November, 2005 promotion. The WCSD violated the WFEA at that time when it failed to promote the complainant to detective sergeant due to her gender.

However, I respectfully dissent from the majority finding of discrimination based upon gender in the failure of the WCSD to promote the complainant to detective sergeant in March 2006.

I agree with the WCSD that it was the county's personnel committee and not the WCSD that determined that the complainant's promotion to a detective sergeant with an immediate family member employed as a patrol officer would violate the county's nepotism policy. In this regard, the evidence supports a conclusion that the county's personnel committee genuinely believed that, based on the job descriptions presented to them, it would violate the nepotism policy to have a husband or wife in a position of detective sergeant and the spouse in a position of patrol officer. As noted by the commission in  Engen v. Harbor Campus, ERD Case No. CR200400475 (LIRC Feb. 22, 2008), "the question of whether Respondent's asserted reason is objectively correct can be considered irrelevant if it appears that the Respondent genuinely believed it to be true."

In addition, credible evidence was presented at the hearing that the sheriff did not believe that the complainant's promotion to detective sergeant would violate the nepotism policy, that he wanted the complainant to be promoted to the detective sergeant position, and that he unsuccessfully made that case before the personnel committee. He also asked the complainant and her husband if they wanted him to fight the matter. Further, I am not convinced that the personnel director purposely, with discriminatory intent, kept the chain of command document away from consideration by the committee or that its inclusion would have made a difference.

I do agree with the majority that the failure by anyone in the WCSD, or the county's personnel department, to question the complainant's eligibility for first, a patrol sergeant position where she would clearly be in a position of directly supervising her husband, or second, a detective sergeant position, is hard to understand. It is troublesome that, after so many years and promotional efforts by the complainant, the decision to bring the nepotism issue to the personnel committee had not been made earlier by the WCSD. However, institutional inattention may be to blame, as well as a reluctance to bring up an issue that would cause conflict in the sheriff's department and the community at large. Without more evidence suggesting discriminatory motive, I would not attribute this failure to discriminatory animus.

In addition, it appears that the issue may have been raised when it was due to the desire of another patrol officer (Tim Wilz) to be promoted, and his recognition of the nepotism issue. It appears that it was his relative (patrol captain Terry Wilz) who requested clarification of the issue. This does not indicate a discriminatory bias on the part of the WCSD.

Given that the job description for the detective sergeant specifically mentions "direct supervision" of patrol officers; that patrol officers do some of the investigations ultimately completed by the detective sergeants (because there are no detectives subordinate to the detective sergeants); and that the personnel committee for the county, not the WCSD (the sheriff argued that the nepotism policy did not apply in the complainant's situation), made the decision, I do not agree with the majority that the complainant's gender was a factor in the WCSD's failure to promote her to detective sergeant in March 2006.

/s/ Laurie R. McCallum, Commissioner

 


cc:
Attorney Colleen Bero-Lehmann
Attorney Jenifer Binder


Appealed to Circuit Court.

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Footnotes:

(1)( Back ) Exhibit R-18.

(2)( Back ) Exhibit C-1.

(3)( Back ) After the events at issue, the divisions underwent a reorganization.

(4)( Back ) Todd Rasmussen's experience on the ERU team was cited by patrol captain Wilz as a reason why he considered him to be a better candidate than the complainant for the January 2005 promotion to patrol sergeant.

(5)( Back ) Exhibits R-6 and C-8.

(6)( Back ) Exhibits R-6 and C-8.

(7)( Back ) At the hearing, Conat testified that he liked that Karski had training in fire investigations because he did a lot of fire investigations, and it would not hurt to have "another new guy" similarly interested. He also liked that "you can hear the radio when he responds to calls." Tr. Day 3, p. 228. He also testified that, although Karski's attendance record was a concern, "since the previous promotion I think his, his uh, absenteeism changed substantially" (Tr. Day 3, p. 233) and that his mother had been living with him, while dying of cancer, and that's why he took sick days. When asked if he had known about Karski's mother at the time of the selection process, he responded "I believe, I can't recall for sure, but I believe that an officer told me." Tr. Day 3, p. 234.

(8)( Back ) At the hearing, Conat testified that patrol captain Terry Wilz had told him that the complainant was a little lazy, and that Karski always did more than he had to do. Conat also said a couple of the detectives were high on Karski, that he had observed Karski to be more enthusiastic about work while on light-duty than the complainant had been, that he had sent several of the complainant's reports back to her for additional work, and that the complainant had inadequately handled a welfare check back in 2000.

(9)( Back ) As to the March, 2006 promotion, the respondent's position is that, although the complainant was qualified for the promotion, the county's anti-nepotism policy prevented her promotion.

(10)( Back ) Exhibit C-8.

(11)( Back ) The ALJ considers that patrol sergeants directly supervise patrol officers, and the complainant's promotion to patrol sergeant while her husband was a patrol officer would violate the anti-nepotism policy.

(12)( Back ) The dissent suggests that "institutional inattention" may be the cause of the WCSD's failure to bring other potentially nepotistic relationships to the attention of the personnel committee. However, that does not justify or satisfactorily explain the sudden attention being paid to the issue when the person to be promoted would be the first female sergeant in the history of the WCSD.

(13)( Back ) The commission notes that the "cat's paw" analysis described in relation to the November, 2005 promotion is equally applicable here. The personnel committee, presumably unbiased, should not be used to insulate the WCSD from its discriminatory actions.

(14)( Back ) The issue in this case was whether the complainant (who had, in a previous case, been determined to have been discriminated against by the employer) unreasonably refused the employer's subsequent reinstatement offer. It was, therefore, unnecessary for the commission to reach the issue of whether the employer must displace a current worker or create a new position for the complainant.

(15)( Back ) The plaintiff had filed a motion for a preliminary injunction seeking to prohibit the defendant school board from making two teacher appointments permanent.

(16)( Back ) This assumes that Mocadlo remains in the WCSD, in the detective sergeant position.  


uploaded 2012/02/01