EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 MARTIN LUTHER KING, JR. BOULEVARD
212 Castille, Apt. 3
Madison, WI 53713
Madison United Hospital Laundry Ltd.
1310 West Badger Road
Madison, WI 53713
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
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
- The Complainant, Gabriel Oviawe, is an adult black male born in Nigeria.
- 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.
- 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.
- 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.
- 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.
- The packer position held by Oviawe since 1982 has always been a Grade I
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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.
- 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.
- Oviawe had more seniority than Rindy.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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.
- 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.
- Wilhelm agreed with Thomas's selection of Rindy.
- 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.
- 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
- Thomas failed to assess all the candidates in the same manner in rating
- 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
- 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.
- 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
- The Commission has jurisdiction over the parties to this proceeding.
- The Commission has jurisdiction over the subject matter of this complaint.
- 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.
- 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.
- 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.
- 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.
- The Respondent, MUHL, shall cease and desist from applying promotion
selection criteria in a discriminatory manner.
- 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.
- 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.
- 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
- 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.
- 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.
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.
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
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
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
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.