Kimberly D. Hassell 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.
December 20, 2022
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. 2021AP1649 Cir. Ct. No. 2021CV1225

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

KIMBERLY D. HASSELL,

PETITIONER-APPELLANT,

V.

LABOR & INDUSTRY REVIEW COMMISSION,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
WILLIAM SOSNAY, Judge. Affirmed.

Before Brash, C.J., Donald, P.J., and Dugan, J.

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).

¶1 PER CURIAM. Kimberly D. Hassell, pro se, appeals an order of the
circuit court affirming the decision of the Labor and Industry Review Commission
No. 2021AP1649

(LIRC), which determined that the University of Wisconsin-Milwaukee (UWM) did
not unlawfully discriminate against Hassell, in violation of the Wisconsin Fair
Employment Act (WFEA). Upon review, we affirm.

BACKGROUND

¶2 Hassell was hired by UWM as an instructor in the Criminal Justice
Department in January 2004. She was promoted to associate professor in 2010.

¶3 The position of associate professor has three “principle
components”: teaching, research, and service. The teaching component involves
teaching the classes assigned each semester. The research component means to
engage in “scholarly activities” such as writing reports and publishing journal
articles or books, as well as crafting research methodologies. The service
component involves service to the department, the university, the community, and
the profession, and includes such activities as serving on academic committees,
editing journals, or assisting with research projects for organizations in the
community.

¶4 In addition to those principle components, associate professors are
also expected to apply for grants to fund their research. A portion of any grants
received goes to UWM.

¶5 Performance reviews for faculty members at UWM, including
associate professors, are conducted by an executive committee made up of tenured
professors from that particular department. The review process in the Criminal
Justice Department required that each faculty member submit an activity report to
its Executive Committee relating to those principle components of teaching,
research, and service. The Executive Committee then used a point scale to rate each

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faculty member: a score of 0 indicates inadequate performance; a score of 1
indicates adequate performance; and a score of 2 indicates outstanding performance.

¶6 The evaluations were used by the Executive Committee to make
recommendations regarding appointment renewal, salary increases based on merit,
and tenure. These recommendations were sent to Stan Stojkovic, the Dean of the
Helen Bader School of Social Welfare, which encompasses the Criminal Justice
Department. Dean Stojkovic then made the ultimate decision as to whether to
follow the recommendations of the Executive Committee.

¶7 Hassell’s evaluations for 2004 through 2012 show that she received a
score of 1 or higher in each of the principle component categories every year. There
were no scores reported from 2013 through 2016, as there were no pay increases
based on merit during that time frame. However, in 2014, the Executive Committee
and Dean Stojkovic deemed Hassell to be a “solid performer” for purposes of
receiving a 1% annual salary increase that was offered to all UWM faculty.

¶8 In August 2013, Hassell emailed Dean Stojkovic regarding concerns
about perceived salary disparities between male and female colleagues. Dean
Stojkovic responded via email, explaining that there were some factual inaccuracies
in Hassell’s email regarding a salary increase that a male colleague had received.
Dean Stojkovic also corrected Hassell’s perception that the funds used to
compensate a colleague at an academic conference could be put toward curing
salary discrepancies, explaining that those funds had been combined from several
departments to make a one-time payment, which is not possible to do for ongoing
salary expenses.

¶9 Dean Stojkovic further noted in his response that Hassell’s concerns
had been addressed at a faculty meeting in May 2013, which Hassell had not

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attended. He stated that he anticipated that salary adjustments would be made that
would resolve her concerns, at least in part.

¶10 In the fall of 2016, UWM allocated funds for one-time lump sum
bonus payments to long-term employees who had not received regular “merit-based
compensation adjustments” over a number of years, to support the retention of such
employees. Employees who began their employment prior to July 1, 2015 and who
were deemed to be “solid performers” were eligible for the lump sum bonus.

¶11 The executive committees of each department were to determine
whether faculty members were solid performers for purposes of being paid the lump
sum bonus. A directive from UWM stated that the executive committees could
consider performance reviews, provided they had been conducted after July 1, 2015.
Since the Criminal Justice Department had not conducted performance reviews
since 2012, however, it was decided at a meeting prior to the vote that the
determination should include consideration of “brag sheets,” similar to the activity
sheets for evaluations, to be submitted by each faculty member describing their
academic achievements. Hassell was present at that meeting, and did not object to
the adoption of this procedure.

¶12 The Executive Committee determined that Hassell was not a solid
performer, and she was thus denied the lump sum bonus payment. All other faculty
members in the Criminal Justice Department—both male and female—were
deemed to be solid performers, and received the lump sum bonus.

¶13 Hassell filed a complaint with the Equal Rights Division (ERD) of the
Department of Workforce Development in November 2016, alleging discrimination
based on sex with regard to compensation and other terms of employment, in
violation of the WFEA. She also alleged that the denial of the lump sum bonus was

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retaliation for her email to Dean Stojkovic in August 2013 regarding perceived
salary inequities.

¶14 Hassell explained that her work conditions had “changed” after that
email exchange with Dean Stojkovic. She stated that she “became isolated,” in that
she was not included on marketing materials for UWM, and was not included in any
email exchanges outside of formal faculty meetings. She believed Dean Stojkovic
had engaged in “heightened scrutiny” of her outside consulting work, and also noted
that she was denied a sabbatical in 2014. She attributed these perceived changes in
conditions to her complaint about discriminatory salary practices.

¶15 An investigator from ERD made an initial determination in May 2017
that there was no probable cause that UWM had violated the WFEA. Hassell
appealed that determination, and a hearing was held before an administrative law
judge (ALJ) in May 2018.

¶16 Witnesses testifying at the hearing included Dean Stojkovic, who
testified regarding his email exchange with Hassell in August 2013 about the
perceived salary inequities. Dean Stojkovic further stated that he met with Hassell
twice regarding this issue—once before she sent her email and once after it was
sent—which he described as being not “professional meetings” but rather
confrontations that turned into “screaming matches.” Due to Hassell’s “tone”
during these confrontations, and “because her accusations were ‘full of errors,’”
Dean Stojkovic testified that he responded to Hassell’s concerns via email, as
described above, approximately five days after Hassell sent her email to him.

¶17 Testimony was also received from Tina Freiburger, a member of the
Executive Committee for the Criminal Justice Department and Chair of the
Department at the time the lump sum bonuses were awarded in 2016. Freiburger

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testified that with regard to the lump sum payment, the vote was 2-1 that Hassell
was not a solid performer. She noted that Dean Stojkovic did not participate in the
Executive Committee votes or discussions during this process.

¶18 Freiburger provided several reasons for her vote that Hassell was not
a solid performer. The primary factor for her vote was an incident that occurred a
few months prior to the vote: Hassell refused to teach one of her assigned classes
in person. About a month before the class was to start, Hassell had demanded to
teach the class online instead. Freiburger stated that this resulted in a loss of
enrollment for the class and added extra work for Freiburger, as the department
chair, to coordinate the logistics for this change. Freiburger felt this was a “major
lapse in duties” by Hassell.

¶19 Freiburger also testified about other concerns regarding Hassell.
Specifically, Freiburger observed that Hassell had not received any grants in 2015
or 2016; that Hassell’s attendance at faculty meetings had been “sporadic at best”;
and that she spent less time on campus than her colleagues.

¶20 The ALJ determined that there was no evidence to support Hassell’s
allegations that she was denied the lump sum bonus or any other merit-based salary
increases because of her gender or in retaliation to her accusations of salary
inequities. Hassell appealed that decision to LIRC, which affirmed the ALJ’s
determination.

¶21 Hassell then appealed LIRC’s decision to the circuit court. The circuit
court affirmed LIRC, finding that its decision was support by substantial evidence
in the record. This appeal follows.

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DISCUSSION

¶22 LIRC’s findings and orders relating to the WFEA are subject to
judicial review pursuant to WIS. STAT. ch. 227 (2019-20).1 See WIS. STAT.
§ 111.395. On appeal, this court “substantively review[s] LIRC’s decision and not
that of the circuit court.” Knight v. LIRC, 220 Wis. 2d 137, 147, 582 N.W.2d 448
(Ct. App. 1998).

¶23 We review LIRC’s legal conclusions de novo. Mueller v. LIRC, 2019
WI App 50, ¶17, 388 Wis. 2d 602, 933 N.W.2d 645. However, we will uphold
LIRC’s findings of fact as long as there is “credible and substantial evidence in the
record on which reasonable persons could rely in reaching the same findings.” Xcel
Energy Servs., Inc. v. LIRC, 2013 WI 64, ¶48, 349 Wis. 2d 234, 833 N.W.2d 665.
An “employer’s motivation” in an employment discrimination case is a factual
determination. Currie v. DILHR, 210 Wis. 2d 380, 386, 565 N.W.2d 253 (Ct.
App. 1997).

¶24 Indeed, the issues raised by Hassell on appeal are all essentially based
on the premise that LIRC’s factual findings were not based on credible and
substantial evidence.2 Credible evidence is that which is “sufficient to exclude
speculation or conjecture.” Bumpas v. DILHR, 95 Wis. 2d 334, 343, 290 N.W.2d
504 (1980). “Evidence that is relevant, probative, and credible, and which is in a
quantum that will permit a reasonable factfinder to base a conclusion upon it,” is

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Additionally, Hassell argues that LIRC erred in failing to hold a credibility conference.
However, as the State points out, a credibility conference is only required when LIRC overrules
the ALJ’s credibility determinations. See Hermax Carpet Marts v. LIRC, 220 Wis. 2d 611, 617,
583 N.W.2d 662 (Ct. App. 1998). That was not the case here.

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substantial evidence. Princess House, Inc. v. DILHR, 111 Wis. 2d 46, 54, 330
N.W.2d 169 (1983). The burden of showing that LIRC’s decision was not supported
by credible and substantial evidence “is on the party seeking to set aside LIRC’s
findings and order.” Xcel Energy Servs., Inc., 349 Wis. 2d 234, ¶48.

¶25 The rule relating to credible and substantial evidence “affords
significant deference” to LIRC’s factual findings. Hilton ex rel. Pages
Homeowners’ Ass’n v. DNR, 2006 WI 84, ¶25, 293 Wis. 2d 1, 717 N.W.2d 166.
In fact, “the weight and credibility of the evidence are for the agency, not the
reviewing court, to determine.” Id. (citations omitted).

¶26 In its decision, LIRC found that the evidence demonstrated that
UWM’s decision not to award Hassell the lump sum bonus was not motivated by
her gender or in retaliation to her complaint regarding perceived salary disparities.
First, with regard to her gender discrimination argument, LIRC observed that the
testimony of Freiburger—the Chair of the Criminal Justice Department, a member
of the Executive Committee who voted on the lump sum payments, and,
incidentally, a female—provided several “legitimate non-discriminatory reasons”
for her vote against awarding the payment to Hassell. Chief among those reasons
was Hassell’s demand to teach her assigned class online instead of in person, which
occurred shortly before the Committee met to determine the award of the lump sum
payments, as discussed above. LIRC also noted that everyone else in the
Department who was eligible for a lump sum bonus, which included both male and
female employees, was awarded the bonus.

¶27 LIRC further discussed the gender discrimination allegation as it
related to Hassell’s assertion that a certain male colleague, whose brag sheet was
very similar to hers, had received the lump sum payment while she had not. LIRC

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found that Hassell failed to elicit any testimony from Freiburger as to why she voted
for the male colleague to receive the payment, and not Hassell. Hassell, on the other
hand, points to the testimony of a witness who testified on her behalf: Dr. Ricky
Lane Lovell, a former faculty member from the Criminal Justice Department who
retired in 2013. Lovell testified that after reviewing both brag sheets after the lump
sum payment decision, Hassell’s sheet was “comparable to or exceeded” the male
colleague’s sheet.

¶28 LIRC found that the evidence did not provide an adequate comparison
of the brag sheets to sufficiently support Hassell’s contention that she should have
received the same “solid performer” rating as her male colleague. Weighing the
evidence and making credibility determinations are firmly within the province of
LIRC. See id.

¶29 Hassell also asserts that LIRC failed to recognize that the Criminal
Justice Department did not follow set procedures for determining solid performance
in the context of awarding the lump sum payments, namely, those used for
performance evaluations. In contrast, Freiburger testified that there was no set
procedure in the Department for making such awards that was in accord with the
directive from UWM’s administration. Freiburger stated that the Department
therefore held a faculty meeting in September 2016 to discuss the process for
determining award distribution. She said that Hassell attended that meeting, and
that she did not object to the procedure adopted of having the faculty members
submit brag sheets which, in effect, were similar to the activity sheets used for
performance evaluations.

¶30 Hassell contended that she had no opportunity to object at this
meeting. However, LIRC rejected this contention as “unpersuasive,” based on

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Freiburger’s testimony that everyone at that meeting “had a chance to talk.” Again,
this weighing of the evidence and making credibility findings is firmly within
LIRC’s province. See id.

¶31 LIRC ultimately determined that the evidence “[did] not support a
conclusion that [Hassell] was denied the lump sum compensation award because of
her sex,” which is supported by the evidence in the record. See Xcel Energy Servs.,
Inc., 349 Wis. 2d 234, ¶48. LIRC further observed that Hassell “essentially
conceded” at the hearing that her gender was not a factor in that decision, noting
that Hassell instead testified that the decision not to award her the lump sum bonus
must have been due to “retaliatory behavior,” because there was “no other
explanation she could think of” for denying her the bonus.

¶32 However, LIRC concluded that the evidence did not support that
allegation either. LIRC pointed out that the “protected activity” under WFEA—
Hassell’s complaint regarding perceived salary inequities—had occurred three years
prior to the vote about the lump sum payments, and that this was “not close enough
in time to infer a causal connection between the two events.” Furthermore, LIRC
noted that her complaint regarding salary inequities was made to Dean Stojkovic,
who was not a member of the Executive Committee, nor was he involved in the vote
regarding the lump sum payments. Although Dean Stojkovic ultimately approved
the recommendations of the Executive Committee regarding the payments,
including the denial for Hassell, there was testimony at the hearing from Lovell—
Hassell’s witness—that deans do not usually “challenge” ratings given by executive
committees.

¶33 Much of Hassell’s argument on appeal focuses on Dean Stojkovic’s
denial of her request for a sabbatical in 2014 as an example of part of a “pattern” of

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retaliation. However, in a letter to Hassell explaining that denial, Dean Stojkovic
stated that the reason for the denial was that her sabbatical request to continue
outside consulting work did “not have a clear relation to [her] duties to the
University.” He explained that the purpose of a sabbatical from UWM is to “enable
recipients to be engaged in intensive study in order to become more effective
teachers and scholars and to enhance their services to the [U]niversity,” namely, the
“principle components” of her associate professor position: teaching, research, and
service. He further stated that such outside consulting is not considered to be
research in terms of that principle component.

¶34 Hassell nevertheless contends that the denial demonstrates Dean
Stojkovic’s discriminatory pay practices, because he made note of the
“considerable” amount of income she had generated through those outside
consulting projects. However, as Dean Stojkovic explained in the letter, his concern
was that with the amount of outside consulting Hassell was doing, her focus on that
had “detracted too much from [her] duties on campus.”

¶35 In fact, Dean Stojkovic testified that many faculty members engage in
outside consulting projects, and he acknowledged that such work could be beneficial
to UWM. However, he stated that there must be a “balance” between that work and
the “ordinary expectations” for faculty members, and he believed that Hassell
lacked that balance.

¶36 Similarly, Freiburger testified that generally no one objected to
colleagues performing outside consulting work “as long as [those faculty members]
are still performing their work duties.” LIRC considered this one of the “non-
discriminatory” reasons that Freiburger voted to deny Hassell the lump sum
payment. This is a reasonable finding based on the evidence, in that it can be

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inferred that both Dean Stojkovic and Freiburger felt that Hassell had placed a
priority on supplementing her income with outside consulting projects at the
expense of her job duties at UWM. See id.; see also Vocational, Tech. & Adult
Educ., Dist. 13 v. DILHR, 76 Wis. 2d 230, 240, 251 N.W.2d 41 (1977) (“If …
different inferences can reasonably be drawn from the evidence, then a question of
fact is presented and the inference actually drawn by [LIRC], if supported by any
credible evidence, is conclusive.”). Thus, LIRC’s finding that all of these facts
“weigh[ed] against any finding of retaliation” is supported by the evidence. See
Xcel Energy Servs., Inc., 349 Wis. 2d 234, ¶48.

¶37 As far as Hassell’s other assertions relating to her feelings of isolation,
heightened scrutiny of her work, and being excluded from marketing materials,
LIRC stated that her allegations were generally too vague to allow for findings to
be made, and certainly did not demonstrate a basis that any of the alleged conduct
was the result of discrimination or retaliation. In sum, LIRC found that even if
Hassell was “treated unfairly” and her “academic contributions and achievements
were not fully recognized” during the process of awarding the lump sum payment,
the evidence does not support a conclusion that this occurred because of her gender
or in retaliation for her complaint regarding perceived salary inequities. In short, it
found no violations of the WFEA, and the evidence supports this finding.3 See id.

¶38 Therefore, we conclude that Hassell has not met her burden of
demonstrating that LIRC’s decision was not based on credible and substantial

3
Hassell also argues that LIRC “accepted UWM’s legal counsel’s statements as fact
without proper investigation of the evidence,” demonstrating “favoritism toward UWM” and thus
violating her due process rights. However, Hassell’s argument is, in effect, that the evidence in
this case should have been weighed differently, such that it would be viewed more favorably toward
her. As we have determined that LIRC’s decision was based on credible and substantial evidence
that was properly weighed by LIRC, we reject this argument. See Xcel Energy Servs., Inc. v.
LIRC, 2013 WI 64, ¶48, 349 Wis. 2d 234, 833 N.W.2d 665.

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evidence. See id. Accordingly, we affirm the circuit court’s order affirming that
decision.

By the Court.—Order affirmed.

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

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