Employment Practices Decisions Archive: 1937 - 1995, EMPLOYMENT-PRACTICES 1 EPD ¶9682, Kenosha County Department of Public Welfare, Petitioner v. Industrial Commission of Wisconsin, Respondent., (Apr. 30, 1963), (Apr 30, 1963)

Kenosha County Department of Public Welfare, Petitioner v. Industrial Commission of Wisconsin, Respondent.

Wisconsin Circuit Court, Dane County. No. 112278, April 30, 1963

Wisconsin--Fair Employment Law

Alleged Discrimination--Failure to Hire Because of Race--Qualification for Employment--Compliance with Civil Service Act--Enforcement. --Where an applicant for a state position qualified for employment by passing the civil service examination but was bypassed and not hired even though several vacancies arose, the State Industrial Commission was warranted in inferring from the evidence that the applicant was discriminated against in violation of the Act, notwithstanding that the provisions of the civil service law were complied with. A commission order that the applicant have an opportunity for employment and be paid that sum of money which would have accrued to her had she been employed was affirmed.

Theodore W. Harris, Racine, Wisconsin, and Daniel C. Lencioni, Kenosha, Wisconsin, for Petitioner.

E. Weston Wood, Assistant Attorney General, for Respondent.

[Preliminary Statement]

WILKIE, J.: The decision of the Industrial Commission is affirmed.

We conclude that the Commission’s findings of fact ars supported by substantial evidence and that the Commission order founded thereon is a lawful order under Sec. 111.36 of the Wisconsin Fair Employment Law.

[Facts]

The essential facts before us on review have been accurately summarized in the able brief of the Attorney General.

Julia Chambers, a negro, interviewed Paul Hickey, Director of the Kenosha County Department of Public Welfare, in August 1961, regarding the possibility of her obtaining employment with the Kenosha County Department of Public Welfare. Miss Chambers testified that in this interview Mr. Hickey “stated to me that he had an all-white personnel and he would have to take this into consideration when hiring”. (R 78-79) Mr. Hickey’s testimony was to the contrary. (R 101-104)

After the conference with Mr. Hickey in August 1961, Miss Chambers took the State Bureau of Personnel examination for Caseworker I and on September 5, 1961, qualified for such employment with a grade of 72. Her eligibility for employment, as established by that examination, continued through March 5, 1962.

On February 2, 1962, the Kenosha Department of Public Welfare requested the State Bureau of Personnel to certify persons eligible for the position of Caseworker I. That request was to enable petitioner to fill a vacancy in such position. On February 20, 1962, the State Bureau of Personnel certified three persons for this position: a Mr. Kohut, a Mr. Schneider, and Miss Chambers. Mr. Schneider did not report for interview and Mr. Kohut was not interested in the position on a permanent basis. Miss Chambers was interviewed for the position on February 23, 1962, by Mrs. Ruth B. Walker, casework supervisor for the Kenosha County Department of Public Welfare and, as we read Mrs. Walker’s testimony, it appears that she was satisfied that Miss Chambers was qualified for this particular position as caseworker (R 57-58, 63-65).

Mr. Hickey did not interview Miss Chambers following her certification on February 20, 1962. On February 27, 1962, he returned the February 20, 1962, certification to the State Bureau of Personnel and requested additional names. Although Miss Chambers’ eligibility expired on March 5, 1962, she was eligible for the position in question for the reason that the vacancy had occurred and the original certification had been made prior to March 5, 1962. Hence the further certification made by the State Bureau of Personnel on March 6, 1962, included Miss Chambers along with two new individuals: Nancy Gustke with a rating of 75, and a Mrs. Simmons, who is shown merely as eligible. Mrs. Simmons failed to report for an interview. Miss Gustke was interviewed by Mrs. Walker and Mr. Hickey and Miss Chambers was not interviewed further.

On March 6, 1962, an advertisement in the Kenosha newspaper, placed by Mr. Hickey, invited application for the position of Caseworker I with the Kenosha County Department of Public Welfare. Mr. Hickey testified with respect to this advertisement that he had no specific position in mind but that the Bureau of Personnel list of eligible persons was nearly exhausted and he feared the Bureau might not be able to complete the certification which he had requested (R 32).

On or about March 12, 1962, Miss Chambers called Mr. Hickey on the telephone to inquire as to the action taken on her certification; and Mr. Hickey informed her that another person had been selected (R 27). The person selected was Miss Nancy Gustke, whom Mrs. Walker testified she considered better qualified for the position than Miss Chambers (R 63-65).

On March 15, 1962, the Kenosha County Welfare Board created a new position of Caseworker I in the Kenosha County Welfare Department, with the case load to be handled by such caseworker consisting entirely of “aid to dependent children”. The State Bureau of Personnel had informed Mr. Hickey that there were no names left on the register of personnel eligible for Caseworker I positions and that under the circumstances the Kenosha Department of Public Welfare was free to hire an uncertified person on an emergency basis. This meant that the Kenosha County Welfare Department could make a provisional appointment of anyone whom it felt qualified, including Miss Chambers. Miss Chambers’ certified eligibility had, however, expired on March 5, 1962, and she was no longer certified for the position. Although the Kenosha County Department of Public Welfare could have appointed Miss Chambers on a provisional basis, she was not so appointed and on March 19, 1962, Miss Patricia Gohlke, who had applied for the position in response to the March 6th advertisement, was appointed by Mr. Hickey. On April 10, 1962, Miss Gohlke took and failed to pass the examination for the position of Caseworker I for which she had received the provisional appointment (R 34).

The ultimate finding of the Commission, denominated a conclusion of law, was that “the Kenosha County Department of Public Welfare did practice racial discrimination in violation of the provisions of Sec. 111.31-38 Wisconsin statutes, when it failed to hire Miss Chambers”.

It is very evident from the record and from petitioner’s brief that Mr. Hickey felt that his compliance with the provisions of the civil service law was sufficient to meet the calls of the Fair Employment Law as set forth in Secs. 111.31 to 111.37 inclusive, Wis. Stats. But this is not the case. It is not enough that a governmental agency hold to the specific requirements of the applicable civil service law in filling positions. On top of this the employing agency must comply with the specific provisions of the Fair Employment Law. All government agencies and bureaus must respect this law.

The basic question is whether or not there is substantial evidence to support the Commission’s findings. We are satisfied that there is. From the facts detailed above and from the entire record as we have reviewed it, it is very obvious that the Commission had the responsibility of resolving this factual question. Reasonable inferences could be drawn either way. The Commission, as the trier of fact, heard the testimony, saw the witnesses who testified, and was in a good position to draw whatever reasonable inference it chose. The Commission did not resort to guess, speculation, or conjecture.

We further conclude that the order of the Commission that the Kenosha County Department of Public Welfare “grant to Julia Chambers, if she is still interested, job opportunity as a Caseworker I at the time of the next suitable vacancy or make such opportunity immediately available to her in the event a provisional employee is presently on the payroll as a Caseworker I” and “pay to the complainant, Miss Julia Chambers, such sum of money as may have accrued to her from February 27, 1962, the date when another certification was sought from the Bureau of Personnel, up to the date she commences employment in Kenosha or notifies the Kenosha County Department of Public Welfare she is not accepting the offer, such notification to be issued by the complainant within a period of two days from the date of the offer,” meets the calls of the Fair Employment Law and specifically Sec. 111.36(3) thereof and is a valid and binding order.

The Attorney General is requested to prepare a formal judgment in accordance herewith and submit the same to other counsel for approval as to form and to the Court for signature.