|SKIP MAZEREK'S SCORES||JOE ALES' SCORES||TOTAL SCORES|
|Michael Sperka||110 (1)||99 (2)||107 (1)||316|
|Michelle Strasser||108 (2)||105 (1)||88 (3)||301|
|Paul Dooley||81 (3)||86 (3)||96 (2)||263|
|Peter Crivello||70 (4)||74 (4)||73 (5)||217|
|Ramona Kaiser||60 (5)||71 (5)||78 (4)||209|
18. After assigning individual scores, the interviewers discussed the applicants and agreed that the three top candidates were Sperka, Strasser and Dooley.
19. Sperka, Strasser and Dooley were advanced to the second round of interviews, and Crivello and Kaiser were eliminated. Michael Sperka was ultimately selected for the vacancy.
20. Crivello sought to grieve the selection of Sperka, but was told by Local Union President John Fazen that the Union would not process his grievance. He appealed within the Union's structure, and a grievance was processed on his behalf, asserting that the choice of Sperka over him was a violation of Article VII. The grievance was advanced to arbitration, and Arbitrator Fred Dichter denied it on timeliness grounds.
21. The instant complaint was also filed, asserting that the decision to bypass Crivello was based, at least in part, on his involvement in organizing the Union in the 1980's.
22. The activities of Crivello in organizing and serving as a steward for the Union were protected, concerted activity.
23. The School District, and its agent Douglas Johnson, were aware of Crivello's protected, concerted activity.
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24. In the early to mid-1980's, Douglas Johnson was hostile to Crivello's protected, concerted activity.
25. Douglas Johnson's hostility to Crivello's protected, concerted activity did not manifest itself in any adverse employment action between 1980 and 1999.
26. The 1999 decision of the interview panel comprised of Ales, Polczynski and Mazurek was rationally based on their subjective impressions of the answers given to them by the candidates, and was not based in part on hostility to Crivello's protected, concerted activity.
On the basis of the above and foregoing Findings of Fact, the Examiner makes and issues the following
CONCLUSIONS OF LAW
1. The Complainant, Peter Crivello, is a "municipal employee" within the meaning of Sec. 111.70(1)i, MERA.
2. The Respondent, West Allis-West Milwaukee School District, is an "employer" within the meaning of Sec. 111.70(1)j, MERA.
3. By the acts described in the above and foregoing Findings of Fact, specifically by bypassing the Complainant for the promotion to Programmer, the Respondent Employer did not discriminate against him on the basis, in whole or in part, of his exercise of protected MERA rights.
On the basis of the above and foregoing Conclusions of Law, the Examiner makes and issues the following
It is ORDERED that the instant complaint be, and the same hereby is, dismissed.
Dated at Racine, Wisconsin, this 4th day of December, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Daniel Nielsen, Examiner
Dec. No. 30259-B
WEST ALLIS WEST MILWAUKEE SCHOOLS
MEMORANDUM ACCOMPANYING FINDINGS OF FACT,
CONCLUSIONS OF LAW AND ORDER
ARGUMENTS OF THE PARTIES
The Primary Brief of the Complainant
The Complainant asserts that the decision to bypass Crivello for the Programmer position was motivated by hostility to his activities in organizing the Recreation Department employees, and is therefore an act of discrimination in violation of Section 111.70(3)(a)3, MERA. Crivello led the effort to bring a union to the workplace in the early 1980's. This brought about the end of his previous cordial working relationship with Doug Johnson, who was bitterly opposed to the organizing drive. Johnson delivered anti-union diatribes at staff meetings, suggested to employees that a union would mean a loss of jobs, and told Greg Radtke that he would never forget who organized the union and that Crivello would never go anywhere in the Department. When the Union was certified and Crivello became the steward, Johnson resisted his efforts to grieve on behalf of other employees, and generally continued the contentious relationship.
Although nearly 15 years passed between the certification of the union and the promotional decision, the Examiner must realize that this was the first chance for advancement since the drive. Johnson's efforts to rig the selection process demonstrate that he still harbored animus from Crivello's successful effort to the bring the union to the Department. He waited for nearly a year to fill the position, giving himself time to make a deal to bypass seniority in return for making this a lead position in the Union. Thus, he eliminated Crivello's advantage in seniority. He posted the job with no educational requirements, thus eliminating Crivello's advantage in having a master's degree. He designed a completely subjective interview process to ensure that Crivello's greater qualifications would not be brought to bear. Viewing the process as a whole, the only reasonable conclusion is that it was specifically intended to enable Johnson to retaliate against Crivello, and to disguise that retaliation. He was the most senior candidate. He was the only candidate with a master's degree. He was the most experienced instructor. He had the greatest administrative experience. Yet, he was not even one of the three finalists. No rational, even handed process could yield such a result. The clear and convincing preponderance of the record evidence allows only one conclusion that the District bided its time, and took the first opportunity for revenge against the man who organized the Union.
The Arguments of the Respondent 3/
The Respondent argues that there is no basis for the claim of discrimination. Certainly, there was some history of tension during the years between 1980 when the Union began its organizing efforts and 1986 when the Union finally won an election and was certified. The
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District knew that Crivello was involved in the organizing efforts, which are plainly protected concerted activity. However, there is no evidence that 14 years later, those activities played any role in the selection of the new Programmer.
3/ For purposes of clarity in the narrative flow, this section incorporates both the arguments made in the District's initial brief and those made in its reply brief.
The Complainant claims that Johnson was hostile to Crivello's activities and threatened that he would get back at him. It bases this on Greg Radtke's unsupported and incredible testimony. Johnson forthrightly denied making any such comments. However, even if he did make these comments sometime in the early to mid-1980's, the fact is that Johnson was not the decision maker in eliminating Crivello from the running for this promotion. Johnson participated the final selection, but Crivello was not a finalist for the job. He was eliminated in the interview and screening process by a team of three administrators, none of whom had a history of hostility to Crivello and all of whom denied receiving any marching orders from Johnson. Two of these interviewers rated him 4th out of 5 candidates, and the third rated him dead last. These ratings were based on his very poor performance in the interview, answering the same array of questions asked of all of the other candidates. While he obviously disagrees with the assessment of these three administrators, he cannot show that their judgment of his qualifications was in any way influenced by his organizing activities in the 1980's.
The Complainant's theory of this case is that the District waited for 14 years. On its face, that is implausible. The Complainant's explanation is that this was the first opportunity the District had to retaliate. That is simply not the case. If the District had intended to illegally go after Crivello, it could presumably have taken action against him at any time. Moreover, this same position came open in 1983, at the height of Crivello's union activities. He applied for it, and was not awarded it. If there was an opportunity to make out a case of discrimination, it would have been then. He did not make any such claim. It is preposterous to think that this promotion was a better venue for revenge, or that Johnson's hostility somehow intensified with the passage of a decade and a half.
In reply to the Complainant's claim that the selection process was an elaborate sham to deny Crivello this job, the District argues that this is an interesting but wholly incorrect theory. The Complainant believes his advantage in seniority and his master's degree entitled him to receive the job and that his failure can only be the result of bad faith and illegal motives. That ignores the fact that seniority is only a tie breaker under the contract, and that subjective judgments about qualifications are the principle determinant. It also ignores the fact that no one, other than Crivello, ever said that a master's degree was a prerequisite for an administrative position. The person who received this job over Crivello in 1983 did not even have a bachelor's degree. Two of the top administrators in the Department, both members of
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the interview panel, do not hold master's degrees. There is no evidence that a enhances the performance of a person holding this job. The only plausible reason for requiring a master's degree would be to guarantee Crivello the job. While he may believe that is a proper criterion, there is no reason for the District to adopt that view. The fact is that the selection process was intended to allow all current employees to fairly compete for the position and to result in the selection of the best qualified person. That is what happened, and Mr. Crivello's unhappiness at the result does not somehow transform this neutral process into a conspiracy to deny him his legal rights.
The Complainant's Rebuttal Argument
The Complainant dismisses the Respondent's arguments as nonsense and without merit. The Respondent claims that Crivello was not qualified. On its face that is absurd. The process Johnson put in place was designed to exclude qualifications from consideration. Specifically, the interviewers gave no weight to educational background, experience or performance. Instead, the process was completely dependent upon interviewing skills. No one can seriously contend that a process designed to turn on something so subjective is intended to measure qualifications. Such a process is well suited to allowing Johnson to take revenge on Crivello for his protected activity.
The District makes much of the fact that Crivello did not contest the selection of Franz for this job in 1983, arguing that this somehow proves he knew there was no animus against him. That is a non-sequitur. Crivello had only four years of experience at that time, and he was given to understand that it was his lack of a master's degree that led to his not being chosen in 1983. In 1999, he was the senior applicant, and the only one with a master's degree. It may be that the decision in 1983 was based on animus, and perhaps the Complainant should have sued at that time. The fact that he did not does not have any bearing on the merits of this suit.
The District also claimed that it could have retaliated against the Complainant at any time, suggesting that the passage of 14 years without adverse employment actions proves its lack of animus. That is simply illogical. This claim is based on the adverse action taken against him in 1999, and the proof that he was denied the promotion because of his history with the Union. The fact that the District has not been caught in any illegal actions in the intervening time in no way lessens the force of the evidence that, in this case, they have.
The complaint in this case is that District refused to select the Complainant for the Programmer job in 1999 as retaliation for his work in organizing the Recreation Department employees in the 1980's. If proved, this constitutes discrimination in violation of
Dec. No. 30259-B
Section 111.70(3)(a)3, MERA. In order to succeed on a claim of unlawful discrimination, a complainant must show by a clear and satisfactory preponderance of the evidence that:
(1) the employee has engaged in protected, concerted activity;
(2) the employer was aware of such activity;
(3) the employer was hostile to such activity; and
(4) the employer's complained of conduct was motivated at least in part by such hostility. 4/
4/ Muskego-Norway C.S.J.S.D. No. 9 v. WERB, 35 Wis.2d 540, 151 N.W.2d 617 (1967), hereinafter referred to as "Muskego-Norway"; Cooperative Education Service Agency #4, et al., Dec. No. 13100-E (Yaffe, 12/77), aff'd, Dec. No. 13100-G (WERC, 5/79), hereinafter "CESA #4".
Protected Concerted Activity and Employer Knowledge
There is no dispute about the Complainant's protected activity, or the District's knowledge of the activity. He was the lead Union organizer within the Recreation Department and served as the first steward once the Union was certified. The argument instead is whether there is proof of hostility and, if so, whether it has been proved that the promotion here was influenced by that hostility.
There is evidence of opposition by Johnson to the organizing campaigns in the 1980's and Johnson does not really deny that. Management opposition to organizing is not necessarily the same as hostility to the opponents, but there is also some evidence that the depth of feeling went beyond merely believing the employees should not vote to be represented. Greg Radtke testified that he and Johnson regularly took steps to antagonize one another, and Johnson was quite bitter at the outcome of the final representation vote. Radtke also testified that Johnson told him he would never forget the organizers, and that Crivello would never go anywhere in the Department. I have made a finding that the former statement probably was made. That finding is based on it being a plausible statement in the context of the bitter organizing campaign. I have not made a finding as to the second statement, directed at Crivello personally. Johnson denied making it, and Crivello gave no testimony regarding the statement, even though one would expect that Radtke
Dec. No. 30259-B
would have mentioned it at the time. However, whether the statement was made or not, I believe the record is sufficient to find, and I have found, that Johnson was hostile to the efforts of Crivello and the others in the early to mid-1980's. 5/
5/ In finding hostility, I have attached no weight to Crivello's testimony concerning a chilling of his personal relationship with Douglas Johnson. Crivello cited the fact that the two had roomed together at some conferences in the late 1970's, had played cards together, and had seen each other on some social occasions, and that these activities ceased when the organizing campaign started. The rooming together was at Crivello's request because he wanted to save money, and there is no evidence either that he made subsequent requests that were refused, or that this represented some sort of personal friendship. The card games were organized by other persons, and neither Crivello nor Johnson were responsible for inviting the other. They ended before any organizing activities took place. The record shows that there have been sporadic social contacts between the two since, though they are not personal friends, and all contacts were in the form of work-related gatherings such as Christmas parties, employee outings and the like.
In general, a finding that an adverse employment action was preceded by protected activity, employer knowledge and employer hostility will lend itself to the inference that the adverse action was motivated at least in part by the hostility. Here, however, there is a lapse of 15 years between the evidence of hostility and the adverse action, with no intervening evidence of any sort of retaliation or individual expression of the hostility against Crivello as an employee.
The Complainant's theory of this case is that revenge is a dish best eaten cold, and that while the lack of promotional opportunities forced Johnson to wait, he took his first opportunity to retaliate against Crivello. This conclusion is drawn from the fact that the selection process gave him no credit for his seniority, no credit for his masters' degree, and was scored on an entirely subjective basis. In short, the Complainant views the process as not reasonably designed to select the best qualified candidate, and asserts that it must therefore have been intended to allow for retaliation against him. There are several flaws with this theory.
The failure of the selection process to give Crivello an advantage based upon seniority is not a failure at all. It is a reflection of the negotiated contract language. Article VII provides for selection based upon qualifications and work performance, with seniority as a tie breaker. The seniority factor would presumably have weighed in Crivello's favor if he had been judged relatively equal to Sperka on qualifications for the job. In any event, the failure of the District to give him credit for his 20 years versus Sperka's 15 years cannot stand as evidence that the selection process is rigged, because seniority is by contract not one of the initial selection criteria.
Dec. No. 30259-B
Crivello's greatest emphasis is on the District's refusal to set educational criteria for the job, thereby discounting his masters' degree. He believes that administrative positions within the District require a masters' degree, but that belief is based on what some unidentified person told him in 1983 when he failed to get the Programmer job in the first place. This belief is, in and of itself, somewhat odd, since it is clearly not true. Franz, the candidate who beat him out in 1983, did not have a college degree of any type. Two of the administrators who interviewed him for the Programmer job in 1999 do not hold masters' degrees. No witness, including Crivello himself, was able to articulate why a masters' degree would benefit the District in this particular job. The Complainant argues that an advanced degree is generally an indicator of greater accomplishment in a professional field, and it is true that this is a broadly accepted notion. It is not, however, so obviously relevant to this position that failure to include it is evidence of an illegal motive. The District's witnesses testified that they set the qualifications for this job at a level that would allow all current instructors to compete for the opening. Given the nature of the position, the very limited promotional opportunities in the unit, and the fact that a masters' degree has never been needed in order to do programming in the past, that is a reasonable goal.
Crivello's complaint that the selection process discounted experience in favor of interviewing skills is somewhat difficult to assess. Certainly, the process did turn on the interviews, as had past hiring processes in the Department. However, this is a small Department and the interviewers were familiar with the work histories and experience of all of the candidates. All current instructors were judged to be minimally qualified. Sperka, who was ultimately chosen, has fifteen years of experience. While there is a clear difference between 15 years and 20 years when seniority is the criterion, the difference is not nearly so clear-cut if the more general "experience" criterion is used. There is a point at which both candidates would have generally the same base of experiences with the day to day situations that would arise and with the issues confronting the recreation programs. If the less experienced candidate has a decade and a half on the job, it does not necessarily follow that an additional five years on the same job makes someone else a materially more qualified candidate. Crivello did not point to anything other than his greater seniority and his masters' degree as proof that he had superior work experience to Sperka.
The use of a subjective system of evaluating candidates always leaves open the possibility that illegal motives are among the subjective criteria being applied. Here, the process was not wholly subjective. All candidates were asked the same questions, by the same interviewers, each of whom individually graded their responses and arrived at grades broadly agreeing with one another. The questions asked were plainly relevant to the position. That said, the scoring of the answers was a purely subjective evaluation. Crivello argues for a set of objective criteria such as education and seniority, principally because both would insure that he got the job. As discussed above, seniority is addressed in the contract, and educational levels are not necessarily a valid criterion if the cost of using them is to exclude all but one of the bargaining unit members. An objectively graded test could be employed, although those systems carry with them separate issues concerning validity in test design and evaluation, and
Dec. No. 30259-B
are usually better suited to technical jobs rather than administrative or professional positions. A degree of subjectivity is inherent in most promotional processes for administrative jobs, and the fact that this process was subjective does not prove that it was illegitimate.
The question is not whether the evaluation of the candidates' was subjective. It is instead whether a reasonable administrator, in the same position as the members of the interview panel, could have reasonably concluded that Sperka was the better candidate, so that Crivello's greater seniority would not come into play. Put another way, in reviewing their answers, can it be said that animus is the most probable explanation for favoring Sperka over Crivello? 6/ Just as with the initial grading, this is itself a subjective judgment.
6/ I draw the comparison between Sperka and Crivello because, even though three other candidates were rated higher than Crivello, it is Sperka who was awarded the position. Finding that Crivello was a better candidate than Strasser or Dooley, the other two finalists, would be an empty exercise. If he was not at least equal to Sperka, no meaningful relief is available to him.
In reviewing the notes of the interviews, and the interviewers' explanations of their impressions, I do not agree that Crivello spoke only in generalities, though some of Sperka's responses are more detailed than his and can be read as showing a broader view of the program and a greater emphasis on innovation than is expressed in Crivello's answers. I do find, however, that Crivello's repeated emphasis on securing the job because of his desire to become a supervisor, rather than mentioning his goals for the program itself, would have given most interviewers pause. Personal ambition is not a negative factor is seeking a promotion most applicants can be expected to be motivated by ambition. However, from the viewpoint of a management selection committee, expressing a desire to improve the program and advance the goals of the employer is a far more desirable response. Failing to mention those factors would be a matter of great concern, particularly in answer to the very first question asked by the interviewers, which specifically invited the applicant to articulate a vision of the position. Crivello merely replied that he was seeking to move up. Both Polczynski and Mazurek cited these answers as factors in downgrading Crivello's application.
In evaluating interviews, the presentation skills of the individual obviously are an important element, and those do not come through on the reading of interview notes. The verbal and promotional skills required for a good interview are not wholly irrelevant to a job such as this, given the amount of interaction required with instructors, participants and the general public. Both interviewers who testified said that Sperka's interview was exceptional, while Crivello's was unimpressive. Obviously, that is a very subjective judgment. However, the notes of the interviews on their face do show a reasonable basis on which the interviewers could have concluded that Sperka was the better candidate. Given the long time lapse between the protected activity and the promotion, the lack of any evidence of continuing
Dec. No. 30259-B
expressions of hostility to Crivello, and the legitimate bases for selecting Sperka over him for this opening, I find that animus is not the most plausible reason for the District's decision not to award Crivello the Programmer position. 7/ Accordingly, I have dismissed the complaint in its entirety. 8/
7/ In concluding that the grading of the applications was not tainted by animus, I have considered, but have not given conclusive weight to, the fact that there is no evidence of animus by the three interviewers. Using a neutral evaluator might break the chain between hostility and motivation, but this is a small department. Both Polczynski and Matusek testified that they were aware of Crivello's protected concerted activity. If there was otherwise compelling proof that Johnson harbored active hostility to Crivello in 1999, it might still be reasonably inferred that his wishes would be known to his chosen interview panel, whether he directly expressed them or not.
8/ Given the dismissal of the complaint, I have not found it necessary to address the Respondent's argument that damages should be tolled for the period between the hearing scheduled in September of 2002, and the January hearing date.
Dated at Racine, Wisconsin, this 4th day of December, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Daniel Nielsen, Examiner