EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MONONA AVENUE
4614 American Ash Drive
Madison, WI 53704
Wisconsin Power & Light
222 West Washington Avenue
Madison, WI 53701
Case No. 20471
A complaint was filed on July 22, 1985 with the Madison Equal Opportunities
Commission (MEOC) alleging discrimination on the basis of race in regard to
Said complaint was investigated by Mary Pierce of the MEOC staff and an
Initial Determination dated November 14, 1985 was issued concluding essentially
that there was probable cause to believe that discrimination had occurred as
Conciliation failed or was waived, and the case was certified to public
hearing. A hearing was held commencing on August 20, 1986 before the MEOC
Hearing Examiner, Allen T. Lawent. Attorney Rosemary J. Fox of Fox, Fox,
Schaefer and Gingras, S.C. appeared for the Complainant who also appeared in
person. Attorney Barbara Swan of Brynelson, Herrick, Bucaida, Dorschel and
Armstrong appeared for the Respondent and Mary Cole acted as the
Respondent's designated employee-representative. Based on the record of the
hearing, including consideration of the post-hearing briefs submitted by the
parties, the Examiner enters the following Recommended Decision:
RECOMMENDED FINDINGS OF FACT
- The Complainant, Gloria McCarter, is an adult black female who resides in
the State of Wisconsin.
- The Respondent, Wisconsin Power and Light Company (hereinafter, WPL), is
an employer doing business in the City of Madison, State of Wisconsin.
- The Complainant began working for WPL in May of 1978 as a
"temporary" employee in the position of Personnel Clerk III. She
had recently graduated from Stillman College in Tuscaloosa, Alabama prior to
taking the job.
- While still a Personnel Clerk III, in March of 1979 she became a
"special temporary" employee which entitled her to receive medical
and dental benefits.
- In December of 1979, the Complainant became a permanent employee for WPL
and was promoted to a Personnel Clerk II position.
- On October 1, 1982, the Complainant's position was reclassified and
retitled Employee Relations Assistant II. At this time, her salary changed
but her work duties did not. Her duties included processing payroll
authorizations, working on employee files, retiree files and EIS reports.
EIS stands for Employee Information System.
- Employees at WPL may be promoted in a variety of ways. The primary way is
that an employee can apply for an open position with the company that is at
a higher level than the position that the employee holds. Also, an employee
can be promoted if his/her job duties and responsibilities increase
- From 1982 up to the time of the hearing in this case, the Complainant had
not applied for any open positions available at WPL. In some instances, the
open position did not interest her. In other instances, she did not believe
she was qualified for the open position.
- Sometime in 1982, the Complainant indicated to her then supervisor, Brad
Mains, that she was interested in additional duties and that she would like
to work on some surveys. Mains complied with her request and assigned her
surveys to work on. There were no other additional duties available for her
at that time.
- In August, 1983, the Complainant was evaluated formally by her then
supervisor, Al Wilkening, in what WPL refers to as the "coaching"
process. Wilkening's evaluation covered the Complainant's previous year of
employment and was her first formal evaluation since she began working for
- As part of the "coaching" process, Wilkening made the following
comments about McCarter's oral and written communications which were
included in a memo summarizing his perceptions of McCarter's job
Gloria states that she, at times, has difficulty expressing herself as
clearly as possible. I agree. Gloria's communication skills are in need of
substantial improvement and are the most limiting factor regarding the
performance of her current assignments and future advancement with the
The area that needs greatest improvement is oral communications skills. She
has identified training and counseling programs which are designed to improve
that skill in the future. We will continue to support her efforts in this
Written communications skills are not a major requirement in the current
job, but will receive increased emphasis in development in the next report.
This skill is necessary as we require input for the development of EIS
practices/procedures and related communications from personnel.
- Part of the criticism of the Complainant's oral communication pertained to
her failure to ask the proper questions to obtain necessary information from
persons she had to deal with.
- Also in August of 1983, but before the coaching session with Wilkening,
the Complainant had spoken to Glen Kielley, WPL's Director of Personnel, and
indicated to him that she was interested in doing more work on the EIS
computer. In particular, she was interested in learning how to write
programs and retrieve programs. Prior to this time, she had no regular
duties that involved the use of the computer and she only knew how to
"log on" to the computer (i.e., turn on the computer and type in
- After his conversation with the Complainant, Kielley wrote a memo to
Wilkening (the Complainant's then supervisor) outlining the Complainant's
request and asking Wilkening to look into the possibility of the Complainant
being given the opportunity for training and work on the computer. At the
time, some reorganization was taking place within WPL's Personnel Department
which resulted in Mary Cole becoming the Complainant's supervisor. Cole
began working on September 1, 1983 and sometime thereafter Wilkening
reviewed with Cole the contents of Kielley's memo about the Complainant.
- During the fall of 1983, Cole was learning her new job. She was primarily
occupied with the personnel budgeting process and had little time to work
with the Complainant. Cole did, however, spend some time with McCarter
during October of 1983 to set up a job activity matrix for McCarter's
position in order to gain an understanding of just what job duties McCarter
was performing and how much time she spent on them. The Complainant also
began to work on the Easytrieve system. Easytrieve was a computer program
for obtaining employee information. It was used with different environments,
first VSPC and then ROSCOE. Also during the fall of 1983, Cole gave
McCarter some requests for computer reports to work on. Beginning in 1984,
McCarter began learning how to write programs and prepare reports herself.
- Cole evaluated the Complainant's performance sometime in 1984. On the
"coaching" form, Cole commented about the Complainant's
communication skills in the following manner:
Communication skills - Need for experience and skill base seminars.
Human Relation Skills - Need for extra experience within job to elevate
Cole also rated the Complainant less than effective in the
"initiative" category as part of the 1984 coaching process.
Cole also wrote in regard to the Complainant:
Have perceived a positive change (since April, 1984) in the following
areas: participation with peers, initiative and imagination with work
activities, confidence in use of communication skills with groups and
individuals, time scheduling and work organization.
- McCarter's proficiency in writing Easytrieve programs increased during the
remainder of 1984 and into 1985, and she began creating more programs on her
- Throughout 1984 and approximately the first half of 1985, Cole had
ultimate responsibility for all of the computer reports. Requests for
reports came to Cole who made the initial assessment as to who should
prepare the reports. Preparation of the reports was split fairly evenly
between Cole and McCarter.
- McCarter went on maternity leave some time in March of 1985. Just before
McCarter went on maternity leave, Val Parish joined the department to assume
the position of Employee Relations Information Analyst, the position
formerly held by Cole. Cole became Employee Benefits Supervisor.
- Upon her return from maternity leave in the latter part of May, 1985, the
Complainant was informed by Cole that various employees had been promoted.
The promoted employees included two white employees in the Personnel
Department where McCarter worked. The two white employees were Debby
Ramharter and Ginny Bowar who each held the position of Employee Relations
Assistant I and were promoted to positions as Employee Relations
- Ramharter's and Bowar's promotions came about because the responsibilities
of their positions had increased in amount and complexity from sometime in
1983 until their promotions in May of 1985. The increase in amount and
complexity of their work responsibility was related to federal legislation
which became effective during 1983-84 involving compensation and benefits
(including what are colloquially referred to as TEFRA, DEFRA and REACT).
- McCarter, Loretta Alderson and Debby Kolberg were the Employee Relations
Assistant II's in WPL's Personnel Department in May of 1985. Neither
McCarter, Alderson or Kolberg were promoted in May of 1985. McCarter had
been a permanent employee for WPL since December of 1979, Alderson had been
a permanent employee since May of 1980 and Kolberg had been a permanent
employee since June of 1980.
- The Complainant, upon being informed by Cole of the promotions of Bowar
and Ramharter in her department and three persons in another department,
asked Cole if she (McCarter) was going to be promoted. Cole told McCarter
that, ". . . your job duties haven't changed and you're not doing that
good of a job at the job you have now." The Complainant was also told
that she probably would not get promoted until late 1987 when it was
anticipated that a new computer system would be installed to replace the EIS
- On or about June 14, 1985, the Complainant wrote a memo expressing
disappointment that she had not been promoted to an Employee Relations
Assistant I position. After Cole received the memo, she asked the
Complainant to discuss it paragraph by paragraph to clarify the information
that had been included. The Complainant submitted a written response to
- Subsequently, the Complainant had a meeting with Cole at which both of the
Complainant's memos were discussed as well as Cole's response to them. The
coaching forms from 1983 and 1984 were also discussed at the meeting, each
having been marked to indicate grammatical errors.
- During the meeting and discussion of the Complainant's writings, Cole also
indicated to the Complainant that the Complainant had problems with
pronunciation, enunciation, grammar, diction and verb tenses. The
Complainant informed Cole that she (McCarter) could not change the way she
spoke. She (McCarter) had previously taken courses in an attempt to improve
her oral communications skills.
- The Complainant subsequently consulted with Dr. Gail Dreyfuss, a
linguistics professor at the University of Wisconsin-Madison, in regard to
complaints about her speech. Dreyfuss concluded that the Complainant's form
of speech had some of the phonological characteristics of Black English and
that there was nothing wrong with the way McCarter spoke. Dreyfuss did
believe the Complainant had problems with her writing, however.
- As a result of the change in her position to Employee Benefits Supervisor
early in 1985, Cole had less and less time available to spend preparing
reports on the computer. In addition, a change was made in August of 1985 in
the operating environment of the EIS computer from VSPC to ROSCOE. Because
Cole was unable to take the necessary training to learn ROSCOE, Cole was
unable to operate the computer at all after August of 1985.
- McCarter and Parish both took the ROSCOE training and both were
responsible for preparing computer reports through the summer of 1985. In
the fall of 1985, Parish's duties with regard to budget preparation became
so heavy that she had no time to spend working on computer reports. McCarter
thus became responsible for preparing almost all of the computer reports for
the personnel department. In addition, McCarter became responsible for
preparing more "tailor-made" reports (special requests).
- In late 1985 and early 1986, Parish was also involved in a pre-study for a
new human resources system. During this period Parish also had very little
time to spend on the computer and McCarter was responsible for the bulk of
the computer work.
- The changes in Parish's workload and McCarter's workload were noted by
Kielley during the fall and early winter of 1985. As a result of the
workload changes and the increased reliance which WPL's Personnel Department
was placing on McCarter to prepare the necessary computer reports, McCarter
was promoted from an Employee Relations Assistant II to the position
of Employee Relations Information Assistant in March of 1986. As an Employee
Relations Information Assistant, her job was equivalent in status and salary
to an Employee Relations Assistant I.
- The Complainant's (McCarter's) race was not a factor in the Respondent's (WPL's)
failure to promote her in May of 1985.
RECOMMENDED CONCLUSIONS OF LAW
- The Complainant, Gloria McCarter, is a member of the protected class of
race within the meaning of Sec. 3.23, Madison General Ordinances.
- The Respondent, Wisconsin Power and Light Company, is an employer within
the meaning of Sec. 3.23, Madison General Ordinances.
- The Respondent did not unlawfully discriminate, within the meaning of Sec.
3.23 of the Madison General Ordinances, against the Complainant on the basis
of race in regard to promotion.
That this case be and hereby is dismissed.
In order to prevail in this case, the Complainant must prove by a
preponderance of the evidence1 that race was a
motivating factor in the Respondent's failure or refusal to promote her in May
of 1985 when two other white employees in her department were promoted (the
Complainant was promoted in March of 1986). The Complainant need not show that
race was the sole motivating factor relied on by the employer; the Complainant
may prevail even if there were also legitimate motivating factors as well as the
In a case where the hearing has been completed, the focus is on whether the
Complainant has met her ultimate burden of proving discrimination (as opposed to
her interim burden of establishing a prima facie case).3
The Complainant, who is black, presented evidence that she was not promoted
in May of 1985 when white employees Debby Ramharter arid Ginny Bowar were.
Ramharter and Bowar were Employee Relations Assistant I's in WPL's Personnel
Department. McCarter was an Employee Relations Assistant II and was not promoted
until March of 1986. Loretta Alderson and Debby Kolberg were also Employee
Relations Assistant II's. Alderson and Kolberg, both white, were also not
promoted in 1985.
McCarter's job duties differed from Alderson's and Kolberg's even though all
three persons had the same job title. McCarter's job duties also differed from
Ramharter's and Bowar's.
The Complainant contends essentially that the employer's criticism of her
oral communications was racially motivated and delayed her promotion, and that
any deficiencies the Complainant had in written communications were not
The employer essentially argues that the Complainant was not promoted in 1985
primarily because her job duties and responsibilities had not changed
sufficiently to warrant a promotion at that time, but that her duties and
responsibilities had sufficiently changed to warrant a promotion in 1986.
Ramharter's and Bowar's jobs had each begun changing during 1983, presumably
sometime in January when at least some TEFRA provisions had begun to take
effect.4 They were promoted approximately
twenty-eight months later in May of 1985.
McCarter's job began changing after August of 1983 when she started to learn
how to use the computer. Further, some of the main changes in her computer work
responsibility occurred after she returned (in May of 1985) from maternity
leave; specifically, Cole no longer was able to work on the computer and
Parish's time became occupied with other duties. Consequently, McCarter became
primarily responsible for the computer reports and she also became responsible
for generating more "tailor-made" reports (special requests).
Perhaps the crux of this discrimination charge involves the meeting between
Cole and McCarter after McCarter returned from maternity leave (in May, 1985)
and had found out that other (white) employees had been promoted, including two
who worked in the same department as McCarter. While Cole's manner of handling
this meeting can be characterized as lacking in sensitivity and diplomacy, the
issue here is whether there is anything that occurred at the meeting that
supports the Complainant's position that her failure to be promoted was
motivated by race bias.
At the meeting, Cole criticized McCarter's writing as well as her
pronunciation, enunciation, grammar, diction and verb tenses. Even McCarter's
own expert witness concedes McCarter had problems with her writing. However, it
should also be noted that written communications were not a major requirement of
her job as an Employee Relations Assistant II.
As for oral communications, the Complainant had been previously criticized by
the employer on this point. One aspect of the criticism was the Complainant's
failure to ask the proper questions to obtain necessary information from persons
she had to deal with.
Even if the Complainant used perfect pronunciation, enunciation, grammar,
diction and verb tense, she could still have had problems obtaining needed
information from persons and she has failed to show that this part of the
criticism of her oral communications was racially motivated.
At the same time, while there had been some valid criticism of the
Complainant's oral communications, some of Cole's criticism was also invalid.
The Complainant's speech exhibited characteristics of a variant of English
called "Black English"5 ("Standard
English" is also a variant of English), but her speech did not exhibit what
her expert witness referred to as stigmatized forms of that variant. Also, the
Complainant had taken special instruction to improve her oral communications
(and this Examiner had no problems understanding her testimony at the hearing).
Nevertheless, the Complainant's burden in this case is to show, by a
preponderance of the evidence, that her race was a factor in the failure to
promote her in March of 1985. Even if one accepts the Complainant's view that
some of Cole's criticism of the Complainant's speech was racial in nature, the
Complainant has not established, under the heavy burden which the law requires
and in view of the totality of the circumstances, that her race was a factor in
the failure to promote her in May of 1985.
Essentially, in May of 1985 the changes in the Complainant's job had not been
present for as long as the changes in Ramharter's and Bowar's jobs. Also, some
of the important changes in responsibility regarding the Complainant's job did
not occur until after her return from maternity leave (in May, 1985); i.e.,
increased reliance on the Complainant for computer reports as a result of Cole's
no longer being involved in computer work and Parish's becoming preoccupied with
the budget and other duties.
Consequently, even if racial bias is found in some of Cole's criticisms of
the Complainant's oral communications skills, there is not sufficient evidence
in this case to also warrant a finding that McCarter's race was a factor in her
failure to be promoted in May of 1985. And the promotion issue is the only issue
I have been called on to enter a specific finding in this case.
Signed and dated this 29th day of December, 1986.
EQUAL OPPORTUNITIES COMMISSION
Allen T. Lawent
1Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 101 S. Ct. 1089 (1981).
2State v. W.E.R.C., 122 Wis.
2d 132 (1985); Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.B., 35 Wis. 2d
540, 151 N.W. 2d 617 (1967); see also Wisconsin Dept. of Agriculture, V. LIRC,
17 EPD 8607 (1978) applying the Muskego-Norway tests to an employment
discrimination case under the Wisconsin Fair Employment Act (sec. 111.31 et
seq., Wis. stats.) and Federated Rural Electric Insurance Company v.
MEOC, et al, No. 84-552 (Wisconsin Court of Appeals IV/III, 9/10/85), rev'd
on other grounds by the Wisconsin Supreme Court without reaching the
"in-part" test issue, 131 Wis. 2d 189 (1986).
3U. S. Postal Service Board of
Governors v. Aikens, 103 S.Ct. 1478, 31 EPD par. 33, 477 (1983).
4TEFRA presumably refers to the
federal Tax Equity and Fiscal Responsibility Act of 1982.
5Not all blacks speak "Black
English" nor are all persons who speak "Black English"