Karen Rosneck v. LIRC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 3, 2019
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2018AP1179 Cir. Ct. No. 2017CV2366

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

KAREN ROSNECK,

PETITIONER-APPELLANT,

V.

LABOR & INDUSTRY REVIEW COMMISSION,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
FRANK D. REMINGTON, Judge. Affirmed.

Before Lundsten, P.J., Kloppenburg and Fitzpatrick, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2018AP1179

¶1 PER CURIAM. Karen Rosneck appeals a circuit court order
affirming a decision by the Labor and Industry Review Commission (LIRC) which
dismissed Rosneck’s employment discrimination complaint in favor of her
employer, the University of Wisconsin-Madison General Library System (UW).
Because substantial evidence supports LIRC’s findings, we affirm.

¶2 Rosneck was born in 1956 and is employed by UW as a
paraprofessional Library Services Assistant-Advanced (LSA-Advanced). In 2010
and 2011, the State undertook a general reallocation survey for LSA positions like
Rosneck’s. While the survey was underway, Rosneck asked a UW administrator
if there was anything else she could do to obtain a professional title and was
informed about the reclassification process. In January 2011, after meeting to
discuss the process with several UW employees, including administrator Nancy
Graff-Schultz, Rosneck submitted a request to reclassify her job to librarian, a
professional position. Graff-Schultz audited Rosneck’s current position by
conducting interviews and gathering information to compare the LSA
specifications to the librarian specifications. In August 2011, Graff-Schultz issued
a decision determining that Rosneck was correctly classified in her current
position as a paraprofessional LSA-Advanced because the majority of her work fit
that description.1

¶3 Rosneck filed a complaint under the Wisconsin Fair Employment
Act (WFEA) alleging unlawful discrimination based on her age, sex, and prior
discrimination complaints. The WFEA prohibits employment discrimination

1
Upon completion of the State’s separate reallocation survey, Rosneck’s job title
remained paraprofessional.

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based on age or sex, among other characteristics. WIS. STAT. § 111.322(1) (2017-
18)2; see also WIS. STAT. § 111.321 (listing protected statuses). It also prohibits
taking adverse action against an employee because she complained about that
discrimination. Sec. 111.322(3).

¶4 The Department of Workforce Development’s Equal Rights Division
dismissed Rosneck’s claims for lack of probable cause and LIRC modified but
affirmed the decision. LIRC emphasized that the only issues properly before it
were: (1) whether Rosneck’s “age, sex, or the fact that she filed previous
discrimination complaints were factors in [UW’s reclassification] decision”; and
(2) whether Rosneck was harassed by her supervisor “based upon her sex, age, and
in retaliation for having filed prior discrimination complaints.” Rosneck sought
judicial review and the circuit court affirmed. Rosneck appeals.

¶5 Rosneck maintains that she is misclassified as a paraprofessional
LSA due to unlawful discrimination. On appeal, this court reviews the decision of
LIRC and not that of the circuit court. Stoughton Trailers, Inc. v. LIRC, 2007 WI
105, ¶26, 303 Wis. 2d 514, 735 N.W.2d 477. LIRC’s findings of fact are
conclusive on appeal as long as they are supported by credible and substantial
evidence. Michels Pipeline Constr., Inc. v. LIRC, 197 Wis. 2d 927, 931, 541
N.W.2d 241 (Ct. App. 1995). “Substantial evidence is less of a burden than
preponderance of the evidence in that any reasonable view of the evidence is
sufficient.” Bernhardt v. LIRC, 207 Wis. 2d 292, 298, 558 N.W.2d 874 (Ct. App.
1996).

2
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
noted.

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No. 2018AP1179

¶6 Substantial evidence supports LIRC’s finding that “[t]here is no
reason to believe that [UW] delayed or denied Rosneck’s reclassification request
because of her sex, age, or because she filed previous or current discrimination
complaints….” See Currie v. DILHR, Equal Rights Div., 210 Wis. 2d 380, 386,
565 N.W.2d 253 (Ct. App. 1997) (“An employer’s motivation is a factual
determination.”). LIRC credited the testimony of Graff-Schultz, who provided a
detailed explanation of the reclassification audit process and the reasons
underlying the determination that Rosneck was classified correctly as a
paraprofessional LSA. LIRC also credited Graff-Schultz’s testimony that age,
sex, or retaliation for prior complaints had nothing to do with the reclassification
decision.

¶7 In support of her discrimination claim, Rosneck pointed to a male
employee who was reclassified from LSA-Senior to LSA-Advanced quickly and
without having made a specific request to UW.3 Here again, substantial evidence
supports LIRC’s finding of no discriminatory intent. Graff-Schultz testified that in
reviewing position descriptions for the State’s reallocation survey, she observed
that the male was assigned the wrong title. Upon inquiry, she was told to
complete the male’s reclassification as soon as possible so that it could be
reviewed as part of the survey. It took less time than Rosneck’s request because it
was simple. The male was merely moving between two paraprofessional titles
within the same series, not, as Rosneck requested, to a wholly separate
professional librarian classification. LIRC credited Graff-Schultz’s testimony

3
Because the male is older than Rosneck, LIRC addressed the claim as one involving
discrimination on the basis of sex.

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No. 2018AP1179

which provided a wholly nondiscriminatory reason for the difference in process
and result.

¶8 Similarly, there is no evidence that Graff-Schultz’s classification
decision was made in retaliation for Rosneck’s prior discrimination complaints
against UW. As explained in LIRC’s decision, Rosneck failed to demonstrate that
the relevant decision makers were even aware that Rosneck filed WFEA claims in
2002 and 2003. To the extent Rosneck might have taken action to commence the
instant discrimination complaint while her reclassification decision was pending,
the record does not establish that the decision makers knew anything about this
until after the August 2011 decision denying reclassification.

¶9 Rosneck argues that LIRC should have considered a host of
historical events because UW’s “ongoing refusal to correct her position’s
misclassification reflects a pattern of discrimination” going back to a “successful
1995 hearing.” She points to a 2002 complaint, the subject of a prior unrelated
appeal in which we affirmed LIRC. Rosneck v. State, No. 2007AP497,
unpublished slip op. (WI App Jan. 10, 2008). This court’s 2008 decision
affirming LIRC is not helpful to Rosneck and in any event, matters addressed in
that appeal are outside the scope of this one. Further, we agree with LIRC that to
the extent Rosneck refers to hiring events occurring in 1995, 1996, and 2001, these
involved a different set of decision makers and are too remote in time to constitute
evidence of an intent to discriminate with respect to her 2011 reclassification
request.

¶10 Rosneck also maintains that her supervisor, William Byrne, harassed
her based upon her sex and age and in retaliation for her prior discrimination
complaints. The record contains no evidence showing that Byrne, who became

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No. 2018AP1179

Rosneck’s supervisor in 2005, was aware of Rosneck’s earlier 2002 and 2003
complaints, and the majority of the alleged harassing behavior occurred prior to
Rosneck’s most recent discrimination complaint. Further, LIRC credited Byrne’s
testimony that age, sex, or retaliation had nothing to do with his actions.
Additionally, LIRC found that Rosneck did not prove that those LSA employees
not engaging in statutorily protected activity were treated more favorably than
Rosneck with respect to “letters of expectation, written reprimands, poor
performance evaluations and/or any of the other ‘harassment’ alleged.” As with
Graff-Schultz, Rosneck did not present any specific evidence of discrimination,
instead asking LIRC to infer unlawful intent based solely on the existence of
adverse circumstances, whether an unfavorable classification decision by Graff-
Schultz or disciplinary action by Byrne.

¶11 Rosneck argues that “Byrne’s complaints of unauthorized ‘talking’
began after she submitted her reclass request in Jan. 2001.” As addressed by
LIRC, a reclassification request is not the same thing as a discrimination
complaint and is not protected behavior giving rise to a claim under the WFEA. A
WFEA claim must be grounded in specific types of discrimination based on
protected characteristics. See WIS. STAT. §§ 111.321-22.

¶12 In sum, ample evidence supported LIRC’s findings. Rosneck’s
arguments to the contrary fail to account for the deferential standard of review.
We cannot, as she requests, engage in a “weighing [of] all the evidence, not just
the employer’s remarks and testimony.” Our role on appeal is to search the record
for evidence supporting LIRC’s factual determinations, not to search for evidence
against them. See Vande Zande v. DILHR, 70 Wis. 2d 1086, 1097, 236 N.W.2d
255 (1975).

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By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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