EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
MADISON, WISCONSIN

Gabriel Oviawe
212 Castille, Apt. 3
Madison, WI  53713

Complainant

vs.

Madison United Hospital Laundry Ltd.
1310 West Badger Road
Madison, WI  53713

Respondent

RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Case No. 20723

In a complaint filed with the Equal Opportunities Commission on December 26, 1986, Gabriel Oviawe charged the Respondent, Madison United Hospital Laundry, with discrimination in employment on the basis of race and national origin. Complainant alleged discrimination in Respondent's failure to promote him and also alleged that he had been harassed by co-workers. The complaint was investigated and on October 28, 1987, an initial determination of no probable cause was issued. Complainant timely appealed the initial determination, and on January 8, 1988, the hearing examiner issued a decision and order entering a finding of probable cause to believe discrimination occurred with respect to Respondent's failure to promote Complainant and affirming the no probable cause determination with respect to harassment. Conciliation was unsuccessful and the case was certified to hearing.

The hearing was held on July 12, 13 and 14, 1988. Complainant appeared in person and by his attorney, Carol Rubin, of Kelly & Haus. Respondent appeared by its attorney, Lauri D. Morris of Stroud, Stroud, Willink, Thompson & Howard.

Based on the evidence presented at the hearing, I now make the following Recommended Findings of Fact, Conclusions of Law and Order:

RECOMMENDED FINDINGS OF FACT

  1. The Complainant, Gabriel Oviawe, is an adult black male born in Nigeria.
  2. The Respondent, Madison United Hospital Laundry, Ltd. (MUHL) is engaged in the business of processing soiled hospital linens. At all times relevant hereto, MUHL's plant has been located in the City of Madison.
  3. MUHL consists of two major divisions, the plant and the linen service. Each division has a manager who reports directly to MUHL's General Manager.
  4. Oviawe has been employed by MUHL since September 29, 1980. He began as a part-time janitorial employee and became a full-time employee in 1982, working first in the surgical inspection department (plant division) for several weeks before transferring to the linen service division and becoming a packer. At the time of the hearing in this matter, Oviawe was still employed as a packer.
  5. Throughout the period of Oviawe's employment with MUHL, job classifications and wage rates have been governed by a series of collective bargaining agreements between MUHL and Local 150, Service and Hospital Employees' International Union, AFL-CIO. Under the terms of the most recent agreement, effective April 1, 1986, there are six job classifications. For the jobs in the lowest classification, Grade I, wages range from $5.21 to $6.21 per hour. Jobs in Grade VI, the highest classification, pay an hourly rate of not less than $7.93 and can pay as much as $9.43 per hour.
  6. The packer position held by Oviawe since 1982 has always been a Grade I position.
  7. MUHL has designated lead workers in several departments. In the plant division, the soil sort, tumble fold, flat work and surgical inspection departments all have lead workers. The linen service departments with lead workers are the packers, pack making and mending departments.
  8. Lead workers are not supervisory employees. They may not hire, fire or discipline employees, or even approve vacation requests. They do not evaluate employees. Lead worker is a Grade II position.
  9. The role of the lead worker is limited to distributing work within the department and monitoring productivity. In the soil sort department the lead worker posts production scores hourly, calls for sorters to shift from task to task at regular intervals, and performs the work performed by sorters as well. Sorters are included in the Grade I classification.
  10. MUHL has a single lead worker job description, which makes no distinction by department with respect to the duties of lead workers or the minimum qualifications needed to hold the position of lead worker. Lead workers must have a high school diploma or the equivalent and must be able to read and interpret written instructions and grasp oral directions. Lead workers must also be able to explain job requirements to production workers, play a leadership role, and keep good records. No special skills or experience are required for the position.
  11. Since 1980, the collective bargaining agreement has required that all positions above Grade I be posted and that employees be permitted to bid for such positions. The agreement permits MUHL to select individuals to fill these positions on the basis of qualifications and ability, as perceived by MUHL, but requires selection of the more senior employee where the applicants are substantially equal in qualifications. Seniority is calculated from an employee's most recent date of hire.
  12. In 1982, Oviawe applied for the lead worker position in the soil sort department. He was not selected. Jim Kimberley, a white male with less seniority, was selected. Greg Wilhelm, who selected Kimberley, told Oviawe Kimberley was selected because of his seniority.
  13. In 1984, Oviawe applied for a position in the wash room. At the time, the position was classified in Grade V. MUHL selected a white male with less seniority than Oviawe to fill the position.
  14. In September of 1986, the soil sort lead worker position again became available. The position was posted and Complainant, Charlotte Rindy and Scott Hatlevig applied. Rindy is a white female and Hatlevig is a white male. Both were then working in the soil sort department and Rindy had served as back-up to the former lead worker, who had been absent frequently due to illness.
  15. At this time, Greg Wilhelm was the plant manager. Jerald Thomas was production superintendent. In that position, he directly supervised the soil sort department. Both Wilhelm and Thomas are white males.
  16. Wilhelm and Thomas discussed filling the soil sort lead worker position and agreed on the criteria by which the candidates would be judged: "seniority"; "leadership record"; "attendance"; "communication skills - train, direct others"; "even-handedness"; "physical requirements"; "accuracy with computations"; "ability to work within authority level"; "able to motivate others to good performance"; "get along"; and "response to their need to improve".
  17. Thomas then devised a system for assessing the candidates. The assessment consisted of three different sets of ratings of the candidates: interviews, supervisory evaluations and lead worker traits.
  18. Wilhelm was not involved in devising the selection process described in paragraph 17, or in rating the candidates. He did, however, sit in on the interviews.
  19. Thomas developed a set of standard interview questions which he posed to each of the candidates. He recorded their answers and assigned each an interview score on the basis of those answers. Rindy and Hatlevig each scored 4.3 and Oviawe scored 4.2. Thomas felt all three performed well at the interview but awarded Rindy a higher score than Oviawe because of her answers to two questions and her answer to the final question in particular.
  20. Thomas also assigned each candidate a supervisory evaluation score on the basis of their most recent performance evaluations. For Oviawe, he used an evaluation prepared by Jane Smith in November of 1985. Thomas had evaluated Rindy in May of 1986 and used that evaluation in assigning her a supervisory evaluation score.
  21. MUHL's hourly employee performance evaluation contains three evaluation sections. Section A calls for the supervisor to rate the employee in five areas - productivity; attendance; safety; working with others; and response to supervision. Each area has between five and eight components. The supervisor assigns ratings from one ("unsatisfactory") to five ("almost always exceeds minimum requirement") for each component. The overall score for each area is the average of the component scores for that area.
  22. Section B of the evaluation is entitled "Potential - Promotability" and calls for ratings as well as comments on leadership, creativity, organizational loyalty, and reasoning and logic. The supervisor also rates overall potential as average, above average or excellent. Section C of the evaluation allows the supervisor to highlight areas of strength as well as areas in which the employee should attempt improvement. It also permits the supervisor to comment generally on performance since the previous evaluation.
  23. The scores Thomas assigned the candidates for performance evaluations were based on Section A of the evaluations, the numerical ratings for productivity, attendance, safety, working with others, and response to supervision. Rindy's score was 3.64; Oviawe's was 3.58; and Hatlevig's score was 3.14.
  24. By far the greatest difference in scores between Complainant and Rindy is in the final test devised by Thomas, the lead worker trait score. Thomas identified factors he believed were indicative of the ability to perform as a lead worker and assessed the candidates with respect to each. Thomas first jotted down his comments and observations as to each candidate for each factor. He then attempted to quantify his written comments on a scale of one to five. The average score for all traits scored became the lead worker trait score. Rindy's score was 3.9. Both Oviawe and Hatlevig received scores of 3.4.
  25. Thomas's list of written comments includes two categories not accounted for on the scoring sheet. Seniority does not appear on the scoring sheet but is included in Thomas's written summary. In addition, although the written comments lists attendance from the beginning of 1986 to September as well as attendance from March, 1986 to September, only the latter is listed on the scoring sheet. The scoring sheet also lists ability to get along with others and assigns scores in this area, but this is not included in the listing which contains Thomas' written comments.
  26. In addition to ability to get along with others and attendance from March to September, 1986, the lead worker traits scoring sheet lists the following areas of evaluation by Thomas: leadership; communication, training, directing; even-handedness; physical requirements; accuracy; able to work within authority level; able to motivate. All of these areas are included in the list containing written comments.
  27. Oviawe had more seniority than Rindy.
  28. Oviawe's attendance from January 1, 1986 to September, as reflected in Thomas' comments, was better than Rindy's. He had fewer incidents of absence and fewer total days absent. Thomas' May 5, 1986 evaluation of Rindy listed attendance as an area on which she needed to concentrate. For the March to September period, Thomas' comments reflect that Rindy had no absences. He awarded Rindy a rating of 4.5 in this category. For the same period, Thomas's comments reflect Oviawe was absent on three occasions, and a total of one and one-half days. He gave Oviawe a rating of 4.
  29. MUHL's attendance records reflect that Oviawe was absent on three occasions between March 1 and the date Rindy was selected for the soil sort lead worker position in September. These three absences actually account for a total of two days of absence. However, one full day absence was a personal day which, according to MUHL's records, should not have counted against Oviawe. Thus, Oviawe had two countable half-day absences. MUHL's records indicate that Oviawe did have a third half-day absence later in September. However, this absence occurred after Thomas had completed the selection process and the candidates were informed that Rindy would be awarded the lead worker position.
  30. Because Rindy and Hatlevig both worked in a department under his supervision, Thomas was familiar with their work and was able to assess their abilities on the basis of his own observations, including recent observations of their work.
  31. Thomas had no supervisory responsibilities over Oviawe or the department in which he worked. Consequently, he was not as familiar with Oviawe and his work as he was with Hatlevig and Rindy. Oviawe's supervisor for at least two years had been Jane Smith, the linen service manager.
  32. In the area of leadership, Thomas gave Rindy a rating of 4; he gave Oviawe a score of 3. Although Thomas had a copy of Smith's November, 1985 evaluation of Oviawe, which gave Oviawe high marks in the area of leadership and potential promotability, he did not consider that portion of the evaluation which addressed potential and promotability in assigning Oviawe a leadership lead worker trait rating of 3. Thomas also failed to consult with Smith on this point to determine whether Oviawe had leadership experience, how he performed, or whether she had anything to add to her evaluation based on Oviawe's performance in the ten months which had passed since she had written it.
  33. In the area of accuracy, Thomas gave Rindy a 4. In his May 1986 performance evaluation of Rindy, Thomas gave her a rating of 3. Thomas based his lead worker trait score for accuracy on Rindy's more recent, improved performance, which he had observed.
  34. Oviawe's lead worker trait score for accuracy was 3. Thomas based this on the rating Oviawe received from Smith in November, 1985, as well as a contemporaneous notation in Section C of the evaluation that "clearer record keeping" was an area on which Oviawe needed to concentrate. Thomas did not consult with Smith to determine whether she had noted any changes in Oviawe's record keeping since then.
  35. Thomas's ratings for communication were: Rindy, 4.0; Oviawe, 3.0; Hatlevig, 3.5. Thomas felt that Oviawe was sometimes difficult to understand. He was also of the opinion that Oviawe did not have a communication difficulty which would have prevented him from performing as lead worker in the soil sort department, but merely felt Rindy's communication ability was better than Oviawe's: Thomas would have selected Oviawe over Hatlevig if Rindy had not been a candidate.
  36. Following the completion of his three-part assessment of the candidates, Thomas recommended that Rindy be selected in the following note to Wilhelm:

In all areas that I can compare the three candidates Charlotte scored as well or better than the others. In addition she has had experience with being leadworker in Soil Sort, and she has done a good job at this. For these reasons I recommend that Charlotte be given the job as soil sort leadworker.

  1. Wilhelm agreed with Thomas's selection of Rindy.
  2. Oviawe was informed of MUHL's decision to place Rindy in the soil sort lead worker position he sought on or about September 11, 1986.
  3. Although Rindy's experience was a factor considered in selecting her and may have influenced some of the ratings she received for lead worker traits, her selection resulted from the fact that she emerged from Thomas's evaluation process with slightly higher scores for two of the tests - interview and evaluations - and a significantly higher score for lead worker traits.
  4. Thomas failed to assess all the candidates in the same manner in rating them.
  5. Oviawe's race and national origin were contributing factors in MUHL's decision not to award him the soil sort lead worker position in September of 1986.
  6. The union contract establishes an hourly wage differential of sixty-four cents ($0.64) between the Grade I position held by Oviawe and the wage he would have received had he been promoted to soil sort lead worker, a Grade II position. This differential existed from September, 1986 to July, 1988, when the hearing in this proceeding was held. The contract also establishes a normal work week of forty (40) hours.
  7. The parties have stipulated that Oviawe's physical ability to perform as a lead worker beyond the final date of the hearing in this matter, July 14, 1988, is to be determined in a supplemental hearing.

RECOMMENDED CONCLUSIONS OF LAW

  1. The Commission has jurisdiction over the parties to this proceeding.
  2. The Commission has jurisdiction over the subject matter of this complaint.
  3. Complainant is protected by the Equal Opportunities Ordinance from discrimination with respect to selection for, or the terms, conditions or privileges of employment on the basis of his race or national origin. sec. 3.23(7), Mad. Gen. Ord.
  4. In failing to select Complainant for the position of soil sort lead worker, MUHL discriminated against him on the basis of his race and national origin, in violation of sec. 3.23(7), Mad. Gen. Ord.
  5. Complainant is entitled to such relief as will redress the injury done to him as a result of Respondent's violation of the Equal Opportunities Ordinance. sec. 3.23(9)(c)2.b., Mad. Gen. Ord. 
  6. The Commission is constrained by the stipulation of the parties from making any factual findings with respect to Complainant's physical ability to perform in any lead worker position beyond July 14, 1988 and therefore cannot now award Complainant relief beyond that date.

RECOMMENDED ORDER

  1. The Respondent, MUHL, shall cease and desist from applying promotion selection criteria in a discriminatory manner.
  2. The Respondent shall pay Complainant back wages in the amount of sixty-four cents ($0.64) per hour, on the basis of a forty hour work week, for the period beginning September 11, 1986 and ending July 14, 1988.
  3. Respondent shall pay Complainant pre-judgment interest at the annual rate of seven percent (7%) on all back wages awarded Complainant in paragraph fifty-one (51) of this order.
  4. Complainant is awarded costs and reasonable attorneys fees, to be paid by Respondent, for the proceedings had to date in this matter. Complainant shall have thirty (30) days from the date of this order to file a petition for costs and attorneys fees and to serve the same on Respondent. Respondent shall then have fifteen (15) days to file and serve a response and Complainant shall have fifteen (15) days thereafter to file and serve a reply.
  5. A further evidentiary hearing shall be held for the purpose of determining whether Complainant is entitled to further relief. The sole factual issue to be addressed at the hearing shall be the Complainant's ability to physically perform lead worker duties after July 14, 1988.
  6. A pre-hearing conference will be held on March 7, 1989 at 10:30 a.m. at the MEOC Office, Room 500, City-County Building, 210 Martin Luther King, Jr. Boulevard, in Madison.

MEMORANDUM DECISION

The prima facie case analysis first articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is applicable to disparate treatment claims arising under the Equal Opportunities Ordinance. State Medical Society of Wisconsin v. Madison Equal Opportunities Commission, No. 82-CV-2560, Dane Co. Circ. Ct., Hon. R. Bardwell, Mar. 2, 1983. Under the framework established by McDonnell Douglas and its progeny, the Complainant must first prove, by a preponderance of the evidence, facts which establish a prima facie case of race and national origin discrimination.1 If he does so, the Respondent must then rebut the prima facie case by articulating legitimate, non-discriminatory reasons for having failed to award Complainant the soil sort lead worker position.2 To prevail, Complainant must then prove that the explanation offered by Respondent is a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext is shown by proving the explanation is unworthy of belief, or that a discriminatory reason more likely motivated the Respondent. id. A showing that Respondent's explanation for how it reached it's decision lacks merit is sufficient to show pretext. Shaw v. State of Nebraska, 666 F.Supp. 1330, 1335 (D. Neb. 1987). This is so because once the legitimate reasons for Respondent's rejection of Complainant are eliminated, the only explanation remaining is that Respondent based its decision on an impermissible consideration (such as Complainant's race or national origin). Furnco, 438 U.S. at 577. Where, as here, the Respondent has presented evidence to explain its decision and the hearing has progressed to its completion, we need not pause to determine whether Complainant has made out a prima facie case but may move directly to the ultimate question of discrimination. United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983); Larry Gustafson v. Wisconsin Physicians Service, Case No. 20539, MEOC, Ex. Dec., May 19, 1987.

Complainant has succeeded in discrediting MUHL's legitimate, non-discriminatory explanations for rejecting him in favor of Charlotte Rindy, a white female, and has therefore proven that his rejection was motivated, at least in part,3 by discriminatory reasons. Although both Greg Wilhelm, the plant manager, and Gerald Thomas, the production superintendent, testified that Rindy's experience in the soil sort department and as back-up to the previous soil sort lead worker was the one determinative factor in her selection, the evidence clearly establishes that this was not in fact true. In addition, the evidence establishes that Thomas applied the "lead worker traits" analysis in a non-uniform and biased manner which worked to Oviawe's disadvantage. Finally, there is evidence that MUHL improperly considered Oviawe's foreign accent in the selection process.

As production superintendent, Thomas oversaw the operations of the soil sort department and observed and was familiar with both Rindy's and Hatlevig's work. It was Thomas who prepared Rindy's performance evaluations. Oviawe worked in the packing department under the supervision of Jane Smith, manager of the linen service. Thomas had no supervisory responsibilities over Oviawe and seldom observed his work. In short, Thomas was fairly familiar with Rindy and Hatlevig and in a position to assess their respective performance and capabilities, but was not in a position to do so with respect to Oviawe. At the hearing, Thomas testified that, although he was familiar with Rindy and knew she had filled in for the soil sort lead worker during his many absences, he was unprepared to elevate Rindy to lead worker on that basis alone. He also testified at length about the three-part test he devised to select a lead worker. Thomas knew who the applicants for the position were when he devised the selection process. In fact, he testified that in devising the process he was sensitive to the fact that two of the candidates were protected class members, and that he wanted to avoid any hint of bias or unfairness in the selection of a new lead worker. In view of such evidence, it is impossible to accept MUHL's contention that experience alone led to Rindy's selection. Although her experience was undoubtedly a factor, it was but one of many considered by MUHL in deciding who would be promoted.

Ironically, the selection process devised by Thomas in order to fairly select a lead worker on the basis of merit became a vehicle for discrimination. The lead worker trait analysis consisted primarily of subjective, undefined criteria. While not unlawful per se, the use of subjective criteria in filling low level blue collar jobs has been recognized as a ready mechanism for discrimination. See, Grano v. Dept. of Development, 699 F.2d 836, 837 (6th Cir. 1983) (per curiam); Royal v. Missouri Highway & Transportation Comm'n., 655 F.2d 159, 164 (8th Cir. 1981); Stewart v. General Motors Corp., 542 F.2d 445, 450-51 (7th Cir. 1976), cert. denied, 433 U.S. 919 (1977). Where they are employed, "subjective promotion procedures are to be closely scrutinized because of their susceptibility to discriminatory abuse", Royal, supra, 655 F.2d at 164, especially where the evaluators themselves are not members of the protected minority. id. Here, as in Colon v. Sorenson, 668 F.Supp. 1319 (D. Neb. 1987), Complainant has shown that the promotion process did not ensure equality of opportunity and that the reasons advanced by MUHL for selecting Rindy are pretextual. First, although he knew little about Oviawe's leadership ability, Thomas rated him in this category without having considered the written comments in the "potential-promotability" portion of Smith's evaluation or consulting with Smith to determine Oviawe's capabilities. Thomas rated Rindy on the basis of his many opportunities to observe her at work. He awarded Rindy a score of 4 and Oviawe a 3. Thomas acted in the same manner in rating the candidates in the category of accuracy. Although Thomas had given Rindy a score of 3 for accuracy in a performance evaluation he prepared just a few months earlier, he now gave her a score of 4 and explained that this higher score was based on Rindy's recent performance. In giving Oviawe a score of 3 for accuracy, Thomas relied on an evaluation which was almost a year old. He made no attempt to determine whether Oviawe's accuracy had improved, worsened or remained constant in the intervening period. His actions "strongly suggest a disinterest [by Thomas] in challenging [his] impressions and gathering a uniform set of information about each candidate." Colon v. Sorenson, 668 F.Supp. at 1328. Thomas has offered no reasonable explanation for having failed to avail himself of pertinent information which would have enabled him to fairly and uniformly assess the candidates' lead worker traits.

Thomas was also inconsistent in converting his written comments on lead worker traits to numerical ratings.4 Although he and Wilhelm both agreed that seniority was one of the factors that would be considered and Thomas included seniority in his initial listing of lead worker traits, he did not give the candidates numerical ratings for seniority. Oviawe was more senior than Rindy and Hatlevig. Thomas' handling of the attendance rating is also troubling. Initially, he considered two periods of attendance. The first began January 1, 1986 and ended in September, at about the time the lead worker ratings were prepared. The second ended at the same time, but only extended back to March 1, 1986. Under either test, Oviawe was absent the same number of days. For the first and longer period identified, Rindy's attendance record was not as good as Oviawe's. However, if consideration of attendance was limited to the shorter period, Rindy compared favorably to Oviawe: she had no absences and Oviawe had no more than two. Thomas chose to rate the candidates' attendance on the basis of the later, shorter period only. As with his failure to assign numerical ratings for seniority, he offered no explanation for having done this. This evidence further supports the inference that MUHL illegally discriminated against Oviawe.

Finally, it is apparent that Oviawe has a foreign accent. His testimony at the hearing however, was understandable, and Thomas testified that Oviawe was qualified for the soil sort lead worker position and that if Rindy had not been in the running for the position, Oviawe would have been selected over Hatlevig. I therefore conclude that Oviawe's foreign accent would not have interfered with his ability to perform soil sort lead worker duties. Despite this, Thomas considered Oviawe's accent by including communication in the leadworker trait category and rating him the lowest of the three candidates in that category. Thomas' consideration of Oviawe's accent, which would not have interfered with his ability to do the work in question, amounted to national origin discrimination. See, Carino v. University of Oklahoma Board of Regents, 750 F.2d 815, 819 (10th Cir. 1984).

Where, as here, the explanations offered by MUHL for how Rindy came to be selected are shown to be untrue (as with the contention that Rindy was selected solely on the basis of experience) and lacking in merit (as with the subjective, unfairly applied lead worker trait analysis), and the evidence shows that MUHL improperly relied on Complainant's accent in rating him, Complainant has met his burden of proving that discrimination has occurred. See, Burdine, supra; Furnco, supra; Shaw, supra.

Victims of employment discrimination are entitled to such relief as will redress the injury done by the discrimination, including back wages. Sec. 3.23(9)(c)2.b. In addition, the Commission is authorized, where a violation is found to have occurred, to order such action as will bring the Respondent into compliance with the ordinance and generally effectuate its purposes. id. By ordering Respondent to cease and desist from discriminating on the basis of race and national origin in its promotion process, Respondent is brought into compliance and the objectives of ensuring equal opportunities in employment without regard to race and national origin are furthered.

MUHL's rejection of Oviawe had the immediate and lasting effect of depriving him of the higher lead worker wage. The wage differential between Oviawe's position and the lead worker salary is, sixty-four cents ($0.64) per hour. Oviawe is entitled to back wages from September 11, 1986, the date MUHL rejected him and selected Rindy to fill the lead worker position, through July 14, 1988, the date on which the hearing was concluded. However, because the parties stipulated that the question of Oviawe's physical ability to perform lead worker duties beyond July 14, 1988 should be addressed at a later evidentiary hearing, I am unable to make any factual findings which would support an award of lost wages beyond that date. An award of pre-judgment interest is also necessary to effectuate the objective of making Complainant whole for his loss. Hilgers v. Laboratory Consulting, Inc., Nos. 86-CV-6488 and 86-CV-6733, Dane Co. Circ. Ct., Hon. A. Bartell, Aug. 24, 1987, Mem. Dec. at 12. Since the parties have articulated no factual or legal criteria for determining the appropriate rate of interest, I have elected to follow the lead of the Supreme Court in Anderson v. Labor and Industry Review Commission, 111 Wis. 2d 245, 330 N.W.2d 594 (1983) and order that Respondent pay pre-judgment interest at an annual rate of seven percent (7%) on the back pay awarded Complainant.

Complainant is also entitled to recover his costs and attorneys fees. See, Adam Vance v. Eastex Packaging, Case No. 20107, MEOC, Aug. 29, 1985; Felix Ossia v. Mariann Rush, Case No. 1377, MEOC, Ex. Dec., Jun. 7, 1988. Accordingly, the above order affords him an opportunity to file a petition for costs and attorneys fees and also affords MUHL an opportunity to respond to that petition.

Whether further relief is appropriate will be determined following a supplementary hearing, also provided for in the above order.

Dated at Madison this 25th day of January, 1989.

EQUAL OPPORTUNITIES COMMISSION

Harold Menendez
Hearing Examiner


1The facts necessary to establish a prima facie case of discrimination will necessarily vary with each case. McDonnell Douglas Corp v. Green, 411 U.S. at 802, n.13. What is required is a showing of facts which, if unexplained, would support an inference of discrimination. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978). Thus, in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), a prima facie case was made out by a female who showed she was qualified for the position she sought, and that the position remained open for a lengthy period before she was rejected in favor of a male who had been under her supervision. 450 U.S. at 253, n.6. A prima facie case was also established by a plaintiff who demonstrated membership in a protected class, similarity to individuals not within that class, and differential treatment. See, Collins v. State of Illinois, 830 F.2d 692, 698 (7th Cir. 1987).

2Respondent's burden in rebutting the prima facie case is not one of proof but of production. MUHL need only set forth, through the introduction of admissible evidence, an explanation for rejecting Complainant which is legally sufficient to justify judgment for Respondent. 450 U.S. at 254.

3The Commission adheres to the "in-part" test of 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, Billy Sanders v. U-Haul Co. of Western Wisconsin, Case No. 20288, MEOC, Ex. Dec., May 22, 1985; Gloria McCarter v. Wisconsin Power & Light, Case No. 20471, MEOC, Ex. Dec., Dec. 29, 1986; aff'd., MEOC, Mar. 26, 1987.

4As Thomas explained it, he first listed lead worker traits on a sheet of paper and recorded information, comments and observations for each candidate. See, Exh. R-11. He then converted his written comments to numerical ratings. See, Exh. R-10. The numerical ratings constituted the third component of the three-part test Thomas used to evaluate the candidates.