EQUAL OPPORTUNITIES COMMISSION
CITY OF MADISON
210 monona avenue
1023 Fiedler Lane, #3
Madison, WI 53713
Wisconsin Life Insurance
709 North Segoe Road
Madison, WI 53713
RECOMMENDED FINDINGS OF FACT, CONCLUSIONS OF
LAW AND ORDER
Case No. 2479
A complaint was filed with the Madison Equal
Opportunities Commission (MEOC) dated December 3, 1980 alleging discrimination
on the basis of race in regard to employment (specifically, refusal to hire).
Subsequent to an investigation by MEOC Human Relations Investigator Mary Pierce,
an Initial Determination dated March 16, 1981 was issued finding Probable Cause
to believe that discrimination had occurred as alleged.
Conciliation was waived and/or failed. The case
was then certified to public hearing. A hearing was held beginning on August 24,
1981 and concluding on August 25, 1981. The Complainant appeared in person and
by lay advocate Michael Thompson (her husband). The Respondent appeared by
Attorney James K. Ruhly of MELLI, SHIELS, WALKER AND PEASE, S.C. and by
employee-representative Rosalie Beck Detomer. Based on the record of the hearing
and after consideration of any written arguments submitted by the parties, the
Examiner proposes the following Recommended Findings of Fact, Conclusions of Law
RECOMMENDED FINDINGS OF FACT
- The Complainant, Luvinia Thompson, is a black
female residing in the State of Wisconsin.
- The Respondent, Wisconsin Life Insurance
Company, is an insurance company doing business in the City of Madison.
- The Complainant, in response to a newspaper
advertisement, applied for a position with the Respondent as a Claims
Processor. She filed a written application on April 21, 1981 with the
Respondent for said Claims Processor position.
- The Claims Processor position sought was a
four-hour per day (5:00 p.m. to 9:00 p.m.) job, four days per week. The job
included, inter alia, the following skill requirements:
a. working with numbers;
b. balancing and computing accounts;
c. putting numerical information into a computer
- The Complainant, as part of the regular
application process, took a "basic math skills" test administered
by the Respondent. She scored 72 correct out of 76 problems attempted in a
given time period.
- After taking the math test, the Complainant
was interviewed by one of the Respondent's personnel assistants, Sharifa
- Subsequent to the interview with Merchant, the
Respondent contacted the Complainant's most recent employer noted on the
Complainant's application. The previous employer, the University of
Wisconsin Credit Union, conveyed the following information regarding the
Complainant (see Respondent's Exhibit 12):
"Terminated -- not able to perform duties
-- which dealt with computer -- was good with public. Very personable. Found
it hard to balance at the end of the day. Took too long over it and this held
In response to the Respondent's question about
whether the Credit Union would re-employ the Complainant, the Credit Union
indicated "not for that position." Ms. Merchant recorded the
telephone conversation for the Respondent and received the employment
information from the Complainant's former supervisor, Franceen Heeren, at the
- Merchant relayed the information received from
the Credit Union to Pamelia Yelton (now Josheff), Vice
President-Administration and in charge of Personnel for the Respondent.
- Merchant had been impressed by the Complainant
during the personal interview and conveyed that information to Yelton.
Yelton suggested that Merchant call another of the Complainant's previous
employers in order to determine whether or not the Credit Union experience
was a fluke and to see if any information could be obtained to mitigate the
information provided by the Credit Union.
- When making inquiries of previous employers
regarding the previous employment of Claims Processor and similar
applicants, the Respondent asks for information using a form entitled
"Employment Reference Inquiry." The Respondent does not deviate
from the information requested on the form and asks for no more or no less
information than indicated on the form.
- Merchant contacted AVCO Financial Services,
the Complainant's previous employer from March, 1978 until January, 1979,
immediately prior to the Credit Union position. Merchant was informed by
telephone that the Complainant had left AVCO because she was "moving
out of town." The Complainant was described by AVCO as generally being
"reliable" with "no personality problems" and as one who
"got along well with people." (See Respondent's Exhibit 13.)
- Merchant communicated the AVCO information to
Ms. Yelton. Merchant also tried to contact another of the Complainant's
previous employers but could not reach the person most familiar with the
Complainant's work (see Respondent's Exhibit 14).
- In the views of both Yelton and Merchant, the
AVCO information did not contradict or mitigate in any way the more recent
U.W.-Credit Union information, and Yelton determined to end any further
consideration of the Complainant for the Claims Processor position.
- The Respondent hired a white female, Esther
Gaganis, for the Claims Processor position. Gaganis had scored 77-79
attempted and 77 correct - on the basic math skills test. The Respondent had
no negative references regarding Gaganis' ability to perform the job.
- Gaganis had been interviewed by Yelton while
Merchant, who had been promoted to Personnel Assistant on April 1, had
observed. Merchant subsequently had interviewed the Complianant without
Yelton being present.
- Persons who can type can operate a CRT as
required in the Claims Processor job. Even some persons who cannot type can
operate a CRT to an adequate extent as required in the Respondent's Claims
Processor job. Previous CRT experience was not a necessary job requirement
for the Claims Processor job, although such experience was desirable.
- The Respondent customarily performs only one
reference check of previous employers for Claims Processor and similar
applicants. As part of its affirmative action program, the Respondent will
perform more than one reference check of previous employers for
"minority" applicants where the Respondent has received a negative
reference from the original previous employer contacted. The purpose of the
additional reference check(s) is to ascertain if any contradictory or
mitigating information is available sufficient to warrant further
consideration of the applicant.
- The Respondent does not contact those previous
employers which an applicant indicates that s/he does not wish to be
contacted. The Complainant did not insert any employer's name in the
application form space for indicating any employer not to be contacted.
- In July, 1980, the Complainant applied for a
position as an Accounting Clerk II after having received a document from the
Wisconsin Job Service and after having called the Job Service to find out
the name of the employer and how to apply. Said Accounting Clerk II position
required "balancing" skills.
- The Complainant voluntarily completed and
submitted a second application form on July 14, 1981 without having been
told to do so and without asking whether it would be necessary to do so.
- She gave the application to Gene Sprecher,
Respondent's only other Personnel Assistant in addition to Merchant.
- Sprecher requested that the Complainant take
the "basic math skills" test. After being informed by the
Complainant that she had taken it just a few months earlier and had scored
72 correct out of 76 attempts, Sprecher indicated there would be no need to
re-take the test.
- Sprecher and Thompson then discussed the
requirements and duties of the Accounting Clerk II position. The Complainant
spoke about her past employment, but did not refer to the U.W.-Credit Union
which she had not listed on her second application.
- Sprecher told Thompson upon the conclusion of
the interview that if the recollection of her earlier math test results were
accurate, that she appeared qualified and might be asked to return for an
additional interview with the department supervisor. Sprecher also said that
if she did not hear from the Respondent in the next week or so, she could
assume she was no longer being considered for the position.
- Shortly after the Complainant had departed,
Sprecher spoke with Merchant who had overheard part of the interview or had
seen Ms. Thompson as she was leaving. Merchant assisted Sprecher in his
search for the earlier math test results. Sprecher and Merchant together
located all of the earlier papers; Complainant's April 21, 1980 application,
the resume, the math test and the several "Employment Reference
Inquiry" forms completed by Merchant.
- Sprecher confirmed the math test score, and
then noticed that the Complainant had omitted on her July application the
U.W.-Credit Union as well as a far earlier employer, Maggie's Grocery where
she had worked for eleven months about nine years ago, which were included
on her April application.
- Both the April and July applications contained
the Complainant's signature and declaration that the information was
"true, correct and complete" to her knowledge.
- Sprecher did not process the Complainant's
application further based on Merchant's April reference inquiries and her
employer omissions on the July application.
- Elly M. Wroblewski, a white female, was hired
for the Accounting Clerk II position. Wroblewski had scored 69 out 69
correct on the basic math skills test. Wroblewski had worked with a
Wisconsin based insurance company from September, 1971 to June, 1975 and
Respondent's inquiry to her employer revealed no negative information about
her performance. Like the Complainant, Wroblewski possessed CRT skills.
Wroblewski also had studied accounting in school. The Respondent did not
check with Wroblewski's two most recent employers, the University Hospital
Food Service in Madison and the Davis Travel Agency in Frankfurt, Germany.
Sentry Insurance, the reference contacted, did not have information
available regarding Wroblewski's job performance, other than her attendance
was no problem.
- On July 17, 1980, the Complainant called
Sprecher. Sprecher told her that the position had been filled, but that
individualized reasons for non-employment could not be communicated to the
applicant due to the volume of applications.
- The Respondent had hired 3 blacks for Claims
Processor positions in 1980; one prior to the Complainant's April
application and two subsequent. Merchant screened the two black applicants
who were hired subsequent to the Complainant's April application.
- The Respondent rejected 12 applicants for hire
in 1980 due to negative job references: ten whites, one Hispanic and the
Complainant. Six of the applicants (including the Complainant) were screened
out prior to seeing a supervisor.
- The Complainant had worked full time, 40 hours
per week, for the State of Wisconsin since sometime in August, 1980 to at
least sometime in August, 1981. She was a clerical LTE for the Wisconsin
Unemployment Compensation Division and then for the Department of Veteran
Affairs. She earned $4.926 per hour at each job. She left the Department of
Veteran Affairs to return to school full time at the University of Wisconsin
for the Fall, 1981 semester beginning early September, 1981.
- The Accounting Clerk II position paid $3.75
RECOMMENDED CONCLUSIONS OF
- The Complainant is a member of the protected
class of race within the meaning of Section 3.23, Madison General
- The Respondent is an employer within the
meaning of Section 3.23, Madison General Ordinances.
- The Respondent did not discriminate against
the Complainant on the basis of race in regard to refusal to hire her for
either the Claims Processor or Accounting Clerk II position.
That this complaint be and hereby is dismissed.
The following discussion will construe the facts
in the Complainant's favor and assume Complainant has established a prima facie
case of discrimination.1 Once the Complainant has overcome that initial burden,
the burden of proof shifted to the Respondent to articulate a legitimate,
non-discriminatory reason for the non-hires. In this case, the Respondent
articulated legitimate reasons for not hiring the Complainant for either
position as discussed below. Complainant failed to show that the reasons were
either pretextual or unworthy of credence.2 Consequently, the Complainant failed
in carrying her burden of proof.
I. Claims Processor Job
The Complainant, a
black female, was not hired for this position based on the reference the
Respondent had received from the U.W.-Credit Union indicating that she had
problems "balancing" while employed there. The person hired for the
job, a white female, had a higher score than the Complainant (77 versus 72) on
the basic math skills test, but she had no CRT experience which the Complainant
did have. However, the evidence shows that anyone who can type can operate a
CRT, and even some persons who cannot type can adequately operate a CRT.
Consequently, while the Complainant's past CRT experience was helpful, it was
not necessary and the Respondent certainly was not bound to ignore her negative
employment reference regarding her "balancing". It was not
discriminatory where two employees were essentially equally qualified for the
Respondent to choose one with no balancing experience rather than one with
negative balancing experience (the Complainant). In other words, whatever
advantage the Complainant had with her CRT experience was offset by the negative
Also, the Respondent gave the Complainant the benefit of the doubt
by checking an additional reference, a practice generally followed for minority
applicants but not for white applicants.4
II. Accounting Clerk II Job
was not discriminatory for the Respondent where two applicants were otherwise
about equally qualified to consider the negative balancing references from the
U.W.-Credit Union.5 Nor was it discriminatory for the Respondent to consider the
Complainant's omission of the U.W.-Credit Union from her July application (as
the Complainant failed to show that any white applicants who the Respondent knew
had omitted recent previous employers from an application were nevertheless
hired or passed on in the interview process).6
Overall, the Complainant, an
otherwise good employee, seems to be unwilling to accept the U.W.-Credit Union's
negative job reference regarding her balancing as true. But the evidence clearly
shows that the Credit Union gave the negative reference. The Complainant could
take up the matter with the U.W.-Credit Union, but the Complainant has made no
showing that the Wisconsin Life Insurance Company discriminated against her by
their good-faith reliance on the Credit Union reference as given.7
Signed and dated 13th day of October, 1981.
Allen T. Lawent
1 While there is some dispute by the Respondent
that the Complainant was qualified for the jobs in questions, I construe the
facts in the Complainant's favor in order to illustrate that she did not carry
her burden of proof in any event (see McDonnel Douglas v. Green, 411 U.S. 792, 5
FEP Cases 965 (1973) for discussion of the prima facie case).
Department of Community Affairs v._Burdine, 450 U.S. _____, 25 FEP Cases 113
3Also probative that no discrimination occurred in either job hire
decision are the facts that ten of the twelve applicants rejected for a negative
job reference (all positions) were white. The Respondent hired 3 black Claims
Processors during 1980.
4The Respondent checked with AVCO Financial Services
to determine if any reference mitigating or contradicting that of the U.W.-Credit
Union reference could be found. However, the Respondent uses the same format in
making employment reference inquiries, and that format does not include direct
questions regarding "balancing". Nevertheless, the effort of
contacting an additional reference is more of an effort, in light of its
affirmative action goals, than the Respondent generally expends for white
applicants who have initial negative references.
5The white female hired as
the Accounting Clerk II had a slightly lower score on the basic math skills test
(69 versus 72), but also had CRT experience like the Complainant. In addition,
she had accounting courses which the Complainant did not. Finally, it was not
unreasonable for the Respondent to skip over her most recent employers and check
with a more remote job-related employer where the purpose of skipping over was
not shown to be a purposeful avoidance of a negative reference.
of Maggie's Grocery was inconsequential.
7Even had the Complainant prevailed
for either job, her backpay remedy would have been limited to the time in
August, 1980 when she received her first State LTE job, as she earned more at
the State jobs than she would have at either of Respondent's jobs, then quit the
second LTE job to attend school full time. At most, she would have received
money from April to August, 1980 (15 hours per week) or July to August, 1980
(full time). However, she did not prevail in either instance.