622.2 Complainant’s prima facie case

The Complainant made out a prima facie case by evidence that he was qualified for a promotion and was told he would be promoted, but the position was given to an employee not in the protected class and the Complainant never got a chance to apply. The Respondent failed to articulate a non-discriminatory reason for its actions. Because the Complainant’s evidence raised a suspicion that discrimination occurred, the Complainant was entitled to a hearing on the merits. Alexander v. Hous. Auth. of the City of Milwaukee (LIRC, 01/30/20).

There are two ways a complainant can prove discrimination under the Wisconsin Fair Employment Act. A complainant can prove discrimination under the indirect evidence method, as originally set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) or by introducing direct evidence of discrimination. In the context of a hiring decision, the elements of a prima facie case using the McDonnell Douglas method of proof are that the complainant: (1) is a member of a protected class, (2) applied for and is qualified for the position, and (3) was rejected under circumstances which gave rise to an inference of unlawful discrimination. Zunker v. RTS Distributors (LIRC, 06/16/14).

A “similarly-situated” analysis calls for a flexible, common-sense examination of all relevant factors. A similarly-situated employee need not be identical to the employee in every conceivable way. Binversie v. Manitowoc Tool & Mfg., Inc. (LIRC, 03/28/13).

The Complainant contended that he was treated differently than another employee who was not in the protected class of individuals aged forty and over. The Complainant failed to establish that he and the other employee were similarly situated such that they would be expected to receive the same level of discipline for similar conduct. A similarly-situated employee is one who is “directly comparable to [the Complainant] in all material respects.” (Citing Grayson v. Oneill, 308 F.3d 808, 819 (7th Cir. 2002)). The Complainant and the other employee were not similarly situated where the Complainant was a manager and the other employee was not a manager, but was a technician and a member of the union. These factors alone warranted different treatment for reasons having nothing to do with age. Gruebling v. Wis. Bell (LIRC, 08/26/11).

The question of whether two employees are “similarly situated” must take into account all relevant factors in the context of the case. In order to be similarly situated, employees must normally have dealt with the same supervisor, have been subject to the same standards, and have engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them. An identical supervisor is not an essential requirement for employees to be similarly situated. However, the existence of different supervisors can present a major obstacle to proving discrimination based on disparate treatment. Stern v. LIRC (Dane Co. Cir. Ct., 06/05/09).

The Complainant in this case did not establish disparate treatment because there was nothing in the evidence to suggest that the different treatment was not the result of different supervisors exercising their separate decision-making discretion. James v. Dane County Parent Council (LIRC, 02/02/09).

The Labor and Industry Review Commission has not adopted the approach of the Seventh Circuit Court of Appeals that in order to satisfy the second element of a prima facie case (i.e., that the Complainant suffered an adverse employment action), an action must have a materially adverse impact on a Complainant’s employment status (such as that effected, for example, by a termination, demotion, a decrease in wages, a material loss of benefits, or significantly diminished responsibilities). Post v. Mauston Sch. Dist. (LIRC, 08/28/02); Froh v. Briggs & Stratton (LIRC, 09/29/04).

The burden of establishing a prima facie case of disparate treatment is not intended to be onerous. The policies served by the prima facie case are to eliminate the most common non-discriminatory reasons for the adverse employment action, and to provide an opportunity for the Complainant to prove discriminatory intent directly. In addition, the question of whether the Complainant has made out a prima facie case is no longer relevant once the Respondent responds to the Complainant’s proof by offering evidence of the reasons for the action taken. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983). The Respondent’s reasons for its actions, and defense to the claim, may be established through evidence presented as part of the Complainant’s case in chief. Josellis v. Pace Indus. (LIRC, 08/31/04).

In disciplinary cases in which a Complainant claims to have been disciplined more harshly, determining whether employees are similarly situated normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them. When different decision-makers are involved, the situations are rarely similarly situated in all respects. Different decision-makers may exercise their discretion differently. Castro v. Micro-Precision (LIRC, 06/25/04).

A Complainant is not required to show, as a part of the prima facie case, that she was more qualified than the successful candidates. An inference of discrimination can be drawn not only from circumstances in which the Complainant’s qualifications are greater than those of the successful candidate, but also from circumstances in which the Complainant’s qualifications are similar to those of the successful candidate. Martin v. Milwaukee Bd. of Sch. Dir. (LIRC, 02/26/03).

One element of a prima facie case is that the Complainant applied for and was qualified for a job for which the employer was seeking applicants. The Complainant in this case could not establish a prima facie case when he did not assert (nor could it reasonably be implied from the information that he provided) that the Respondent was seeking applicants for customer service positions in general, or for the customer service representative position from which the Complainant had been terminated specifically, at the time he applied. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

An employee alleging age discrimination in the context of a hiring decision makes a prima facie case by showing: (a) he is forty or older, (b) he was not hired, (c) he was qualified for the job, and (d) he was rejected under circumstances which give rise to an inference of unlawful discrimination. Kalsto v. Village of Somerset (LIRC, 10/03/00).

The burden of establishing a prima facie case of disparate treatment is not intended to be onerous. The policies served by the prima facie case are to eliminate the most common non-discriminatory reasons for the adverse employment decision and to provide an opportunity for the Complainant to prove discriminatory intent indirectly. Requiring proof of subjective qualifications at the prima facie phase of the analysis does not serve either of these policies. Rather, forcing the Complainant at the outset to prove subjective qualifications subverts the indirect method of proof by requiring proof of the subjective standards and motives of the employer, and has the effect of collapsing the three-step McDonnell Douglas analysis into a single step at which all issues would be resolved. Foust v. City of Oshkosh Police Dep’t (LIRC, 04/09/98).

When a Complainant in a race discrimination case did not introduce specific evidence that she was replaced, this did not prevent a conclusion that she established a prima facie case of discrimination in discharge. The elements of a prima facie case are not fixed in stone, but can vary with the circumstances of the case. Proof of replacement can be substituted for by proof that others not in the protected class were treated more favorably. Ray v. Ramada Inn-Sands West (LIRC, 03/05/91).

In the context of a hiring decision, the elements of a prima facie case are that the Complainant: (1) is a member of a protected class, (2) applied for and is qualified for the position, and (3) was rejected under circumstances which gave rise to an inference of unlawful discrimination. Larson v. DILHR (Wis. Pers. Comm’n, 01/22/89).

The elements of a prima facie case vary with the circumstances of each case, but generally a prima facie case refers to evidence which is sufficient to support a finding in the Complainant’s favor unless rebutted. Goldberg v. St. Joseph’s Hosp. (LIRC, 08/09/85).

In a claim of discriminatory discharge on the bases of age, the Complainant must show that he was 40 or older, that he was discharged, that he was qualified for the job, and either that he was replaced by someone not within the class or that others not in the protected class were treated more favorably. Here, however, the fact that the Complainant was not replaced by a younger employer is not dispositive, as the necessary elements of a prima facie case are not fixed in stone but vary with the facts of each case. It is enough that the Complainant established facts which raise an inference of age discrimination. The Complainant did so in this case by establishing that he was laid off while a much younger and less experienced employee was retained in a position for which the Complainant was fully qualified and which was in fact essentially a sub-set of the position the Complainant had held. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

To support a prima facie case of discriminatory discharge, the discharged employee need not establish that his performance was excellent or even average, but only that it was of sufficient quality to merit continued employment. That the employee's work was inferior to that of other employees, making him a candidate for discharge when there was a reduction in available work, is instead properly raised by the employer as a nondiscriminatory reason for discharge. Puetz Motor Sales v. LIRC, 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985).

Minority Complainants may make out a prima facie case of discrimination, even if they were replaced by another minority, if they can demonstrate that the hiring of a minority replacement was a pretext to mask an actual discriminatory discharge. Davis v. Univ. of Wis. Sys. (Wis. Pers. Comm’n, 01/07/85).

A Complainant’s failure to enter his age and the age of his replacement into the hearing record prevented any finding that his layoff was age discrimination. Nelson v. Massey Ferguson (LIRC, 10/20/83).

A Complainant establishes the element of satisfactory performance necessary to a prima facie case by proving that she was not criticized by her employer. Lenich v. Dana’s Deli (LIRC, 03/29/83).

In failure to promote cases, the employee’s initial burden is to show that: (1) he belongs to a protected group, (2) he was qualified and applied for a promotion, (3) he was considered for and denied a promotion, and (4) other employees of similar qualifications who were not in the protected group were promoted at the same time. He need not prove at the initial stage that he was the most qualified person for the promotion in order to make out a prima facie case, nor must he show that he applied where the promotion was not announced. Bolden v. Wis. Tel. Co. (LIRC, 08/04/81).

Under McDonnell-Douglas, an employee claiming individual discrimination must establish that: 1) she is a member of a protected class, 2) she applied and was qualified for a job for which the employee was seeking applicants, 3) she was rejected, and 4) after such rejection, the position remained open and the employer continued to seek applications from persons of the Complainant’s qualifications. Rubenstein v. LIRC (UW Bd. of Regents) (Dane Co. Cir. Ct., 02/06/81).

Even where it was not clear that an employee made out a prima facie case of sex discrimination, a minimal showing of analogous McDonnell-Douglas factors should justify some explanation on the part of the employer. Waukesha Pub. Sch. v. DILHR (Coulson) (Dane Co. Cir. Ct., 07/06/78).