P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case Nos. 199400291,  199404027
EEOC Case Nos. 26G940668,  26G950136

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The following paragraph is inserted after paragraph six of the administrative law judge's ORDER:

"The respondent shall pay to the Complainant reasonable attorney fees and costs associated with replying to the respondent's petition for commission review in the amount of $760.00."

2. Paragraph seven of the administrative law judge's ORDER is deleted and the following paragraph is substituted therefor:

"Within 30 days of the expiration of time within which an appeal may be taken herein, the respondent shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708."


The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed: August 13, 1998
muenzmi.rmd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


WCA Exclusivity

In its petition for commission review the respondent argues that the administrative law judge erred in denying its motion to dismiss based on the exclusive remedy provisions of the Wisconsin Worker's Compensation Act (hereinafter "WCA.") The respondent's arguments in support of this point rest upon the law as it stood prior to the Wisconsin Supreme Court's recent decision in Byers v. LIRC, 208 Wis. 2d. 388 (1997), in which the court overruled previous case law to hold that the exclusive remedy provision in the WCA does not bar Wisconsin Fair Employment Act (hereinafter "WFEA") claims.

Although the respondent maintains that Byers has no retroactive effect and does not, therefore, apply to this case, the commission disagrees. As the Wisconsin Supreme Court stated in a recent decision, a decision which overrules past precedent is traditionally accorded retroactive effect, and the court will only apply a holding prospectively if there is a compelling judicial reason for doing so. Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 623-624 (1997). While there may be exceptional cases in which prospective application of a court decision is appropriate, this is generally to prevent an anomalous result. "A rule of law should not be applied retroactively when it is new, when its retroactive operation would retard its purpose, and when retroactive application would create inequitable results." Lindas v. Cady, 183 Wis. 2d 547, 573 (1994)(S. Abrahamson, dissenting), citing Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)(setting forth a three-part test for prospective application of a new rule of law).

There are no exceptional circumstances that would prohibit retroactive application of the supreme court's Byers decision in this case. Although in Byers the court overruled past precedent, that decision did not create a "new" rule of law or common law right, but merely provided a more current interpretation of the law that already existed. (1) Moreover, this is clearly not a case in which the retroactive application of the law as set forth in Byers would frustrate its purpose or where the respondent acted to its detriment in reliance upon an earlier interpretation of the law. Indeed, it would be absurd to suggest that the respondent would have refrained from discriminating against the complainant had it been aware that its actions could be cognizable not only under the WCA, but also under the WFEA. The commission, therefore, concludes that the Byers decision is applicable in this case and that, accordingly, the exclusivity provisions of the WCA do not provide a basis for dismissal of the complaint.


Both parties have petitioned for a review on the merits. The respondent contends that the administrative law judge's finding that the complainant was subjected to illegal retaliation with respect to the terms and conditions of her employment based upon having filed a sexual harassment complaint should be reversed. (2) The complainant, on the other hand, contends that the finding of discrimination does not go far enough and should be expanded to include her constructive discharge claim. After consideration of the record in this matter, the commission declines to do either and concludes that the result reached by the administrative law judge was the correct one.

A.  Performance Evaluation and Salary Increase

The respondent argues that the complainant failed to show she suffered an adverse employment action and, further, failed to introduce credible evidence of a causal link between her protected activity and the action taken by the employer. With regard to the latter, the respondent contends that the administrative law judge inferred discrimination solely based upon the fact that the evaluation was written after the complainant filed her sexual harassment complaint. It asserts that, if timing alone determines whether actions are retaliatory, an employe need do nothing more than file a discrimination complaint to become "discipline proof."

The commission does not find the respondent's arguments compelling, for several reasons. First, there is ample reason beyond the mere timing of the evaluation to believe that the evaluation was, in fact, tainted by Mr. Rung's negative feelings about the complainant, who had recently filed a sexual harassment complaint in which he was named. At the hearing Mr. Rung specifically testified that he was angry with the complainant about the complaint and that, subsequent to learning of the complaint and becoming angry, he drafted her evaluation. (3) After reading the evaluation, the commission believes that Mr. Rung was, indeed, feeling quite a bit of anger towards the complainant and that this is reflected in his written review of her performance, which went beyond a mere poor performance review to include disparaging comments about the complainant's character and integrity. Mr. Rung noted, for example, "Michelle is not forthright and trustworthy." He further stated, "Michelle is unwilling to accept responsibility for a case decision" and "She will do as she pleases to do and if she is confronted after the fact she denies being told." (Exhibit 28) Such remarks cannot reasonably be characterized as constructive criticism, and the commission does not believe that they would have appeared on an evaluation written by an objective supervisor, even of a poor employe. To the contrary, given Mr. Rung's acknowledgment of his angry feelings towards the complainant, the commission agrees with the administrative law judge's assessment that a retaliatory motive existed. (4)

The respondent also argues that the administrative law judge did not find that the evaluation was untrue or inaccurate and contends it is undisputed that the evaluation accurately reflects problems the complainant had at work. The commission initially notes that the respondent has not cited to any portion of the record in support of its assertion that it is undisputed the evaluation accurately reflected the complainant's problems at work, and it appears that the accuracy of the evaluation is very much in dispute. Further, although the administrative law judge did not specifically state that the evaluation was inaccurate, this may be inferred from the decision. The administrative law judge noted that prior evaluations by Mr. Rung had been acceptable and that another supervisor who was not the subject of the sexual harassment complaint also rated the complainant's performance as acceptable. These facts suggest that the unfavorable evaluation was not an accurate assessment of the complainant's performance. The administrative law judge also made factual findings that Mr. Rung yelled at the complainant, gave her contradictory directives, and contacted a foster parent to question her about the complainant's job performance, points which call into question some of Mr. Rung's stated criticisms of the complainant. Mr. Rung cannot reasonably criticize the complainant for failing to follow directions where he has given her contradictory directives, nor can he fault her for being the subject of complaints from foster families when he himself has solicited such complaints. Based upon these circumstances alone, the commission sees ample reason to conclude that the evaluation was not an accurate reflection of the complainant's job performance.

Next, the respondent argues that a negative job evaluation does not constitute an adverse employment action and that, therefore, even if it was unwarranted, it cannot form the basis for a retaliation complaint. The respondent cites Smart v. Ball State University, 89 F.3d 437, 71 FEP Cases 495 (7th Cir. 1996) in support of this proposition. In Smart, a Title VII case, the Seventh Circuit Court of Appeals noted:

"While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employe unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that `an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.'
. . . .
"There is little support for the argument that negative performance evaluations alone can constitute an adverse employment action."

Smart v. Ball State, 71 FEP Cases 495, 498.

The court's opinion in Smart is not controlling in this case. (5) The commission, which is not bound by the Seventh Circuit's interpretation of Title VII when applying the WFEA, has previously held that even informal discipline, such as negative entries in a supervisor's log, can constitute an actionable adverse employment action. See Foust v. City of Oshkosh Police Department (LIRC, April 9, 1998). Indeed, a negative supervisor's note or performance evaluation constitutes a permanent record of poor performance which can have adverse ramifications throughout a worker's employment. For example, it is not hard to imagine how such a document could adversely affect an employe's chances for promotion, nor to envision that subsequent supervisors otherwise unfamiliar with the employe's job performance could rely upon that document to form an unfavorable impression of her. Consequently, the commission believes that a negative performance evaluation may constitute an adverse employment action and may form the basis for a discrimination complaint.

The commission also considers it important to point out that the harm to the complainant in this case was not limited solely to having received a poor evaluation. Rather, the complainant was also subject to the loss of a tangible job benefit in that she was denied a salary increase as a direct result of the evaluation. Where a poor evaluation is accompanied by other negative consequences, it cannot reasonably be argued that there is no adverse employment action.

Finally, the respondent maintains that because it ultimately granted the complainant her salary increase retroactive to the date on which it was due, the complainant suffered no economic loss. The commission, however, is not persuaded by claims of "no harm no foul." It is the act of illegal discrimination that constitutes the wrong under the statute, and the fact that an employer later remedies its own discriminatory act goes to the question of damages, not to the question of liability. To find otherwise would be to seriously weaken the anti-retaliation provisions of the law. The evidence in this case demonstrates that the complainant received a poor performance evaluation and was denied a pay increase in retaliation for having filed a sexual harassment complaint, and the fact that she subsequently received the raise that was due her does not alter the commission's conclusion that she was the victim of illegal discrimination.

B. Constructive Discharge

In her petition the complainant takes issue with the administrative law judge's determination that she was not constructively discharged in retaliation for having filed her complaint. A constructive discharge occurs when an employer makes working conditions so intolerable that the employe is forced to resign. Bartman v. Allis-Chalmers Corp., 799 F.2d 311, 314, 41 FEP Cases 949 (7th Cir. 19 86), cert. denied, 479 U.S. 1092 (1987). To find a constructive discharge it must be established that, due to a discriminatory reason, working conditions are rendered so difficult or unpleasant that a reasonable person would feel compelled to resign. See Waedekin v. Marquette University, (LIRC, March 5, 1991), citing Bourque v. Powell Electrical Manufacturing Co., 617 F.2d 61, 22 FEP Cases 1191 (5th Cir. 1980); Jorgenson v. Ferrellgas, Inc. (LIRC, January 10, 1992).

The complainant insists that she was subjected to an intolerable working environment which forced her to resign. However, after considering all of the evidence in the record, the commission agrees with the administrative law judge that, while the complainant's employment had a "significant and unfortunate personal toll for her," no constructive discharge occurred. Although the complainant's petition contains a lengthy list of adverse employment actions to which the complainant was allegedly subjected, virtually all of these incidents occurred many months before the complainant tendered her resignation and had been remedied or were simply not ongoing at that point. As the administrative law judge pointed out in his decision, by the time the complainant resigned she was no longer working with Mr. Rung, but was assigned to a unit with Mr. Jacobsen, who had given her a respectable performance review and with whom no serious problems had occurred. Subsequent to this transfer, the salary increase which had been unfairly denied the complainant was awarded to her retroactively to the date on which it originally should have been received. The record further indicates that the complainant was not the subject of any discipline during the last six months of her employment. While the complainant still felt isolated from her co-workers and continued to be unhappy in her job, her conditions of employment were not shown to be particularly adverse at this point. The commission can appreciate the complainant's dissatisfaction with the job and can understand her decision not to remain in this employment. However, in the absence of evidence demonstrating that the working conditions were rendered intolerable as a result of the respondent's discriminatory conduct, no constructive discharge can be found.


In addition to their disagreement with the administrative law judge's findings on the merits of the case, both parties are also dissatisfied with the relief ordered by the administrative law judge. The respondent considers it be too much and the complainant too little. Again, however, the commission believes that the administrative law judge's resolution of the issues was appropriate.

A. Staff Training

First, the respondent argues that the administrative law judge abused his discretion by ordering it to provide training on the anti-retaliation provisions of the WFEA for the entire staff of the department where the complainant was employed. The respondent maintains that, while training may be justified for the complainant's immediate supervisor, there is no rational basis for department-wide training.

While it is true that the administrative law judge's decision does not contain factual findings indicating that anyone other than the complainant's direct supervisor engaged in retaliation against her, this did not preclude him from issuing the order he did, and the commission considers that order appropriate. The WFEA confers broad authority upon the administrative law judge to "order such action by the respondent as will effectuate the purpose of this subchapter." Wis. Stat. 111.39(4)(c). The respondent has not cited any legal authority in support of its contention that the administrative law judge exceeded his authority, and the commission sees no reason to believe that staff-wide training goes beyond what is authorized by the statute. Requiring the respondent to provide training to its staff is not a punitive measure, but one designed to eradicate discrimination in the workplace and, thus, to effectuate the purposes of the WFEA. The commission sees no reason to believe that a training session for staff members is outside of what the law contemplates and will not disturb this portion of the administrative law judge's order.

B. Attorney Fees for Motion to Compel Discovery

Next, the respondent argues that the administrative law judge abused his discretion in ordering the payment of fees and costs related to the complainant's motion to compel discovery. The respondent maintains that the discovery problems occurred, at least in part, because of the conduct of the complainant's counsel in demanding that documents be produced at her office. It also contends that the complainant's counsel failed to comply with the requirement that her motion to compel be accompanied by a written statement indicating that there had been a consultation between the parties and a sincere attempt to resolve their differences, as provided for in Wis. Admin. Code ILHR 218.14(4), and that the administrative law judge ignored this when making his ruling.

However, the questions of whether or not the complainant should have been required to comply with Wis. Admin. Code ILHR 218.14 or whether certain aspects of her discovery demands were reasonable are of little moment at this point, since the discovery process has long been completed. The only relevant consideration at this juncture is whether the administrative law judge found or should have found that that the respondent's opposition to the motion to compel discovery was substantially justified or that, for other reasons, an award of expenses would be unjust. (6)

Although the administrative law judge did indicate in his decision that he had some reluctance about awarding fees in this case, he did not find that the respondent's opposition to the motion was substantially justified or that other circumstances made an award of expenses unjust. Indeed, the administrative law judge's hesitancy about awarding fees was based upon the fact that the respondent was cooperative after the administrative law judge ruled in favor of the complainant on the motion to compel. However, parties are expected to cooperate with the orders issued by the administrative law judge and the respondent's compliance with the terms of the administrative law judge's order is not grounds to deny the complainant her attorney fees and costs associated with obtaining that order.

The respondent does not offer any other reason to believe that its opposition to the motion was substantially justified or that the award of attorney fees was unjust. The record indicates that the respondent did not reply to the complainant's discovery request in a timely fashion and then responded in a manner that was incomplete. At the point the complainant submitted her motion to compel discovery, it was less than a week before the scheduled hearing date and she had not yet had an opportunity to review the documents she sought. The complainant ultimately prevailed on most aspects of her motion to compel. Given these circumstances, there is no reason to believe that the administrative law judge abused his discretion in awarding the complainant reasonable costs and attorney fees associated with bringing her motion.

C. Attorney Fees

While the complainant evidently has no qualms about other aspects of the administrative law judge's order, she argues that the administrative law judge erred in reducing her attorney fees by fifty-five percent as a result of her lack of success on the constructive discharge issue. The complainant maintains that the administrative law judge found she was retaliated against with respect to the terms and conditions of employment and that both issues relied upon a common core of facts. She contends that "all of the evidence submitted by and tried by complainant was highly relevant and probative to the illegal abuse and retaliation of complainant by respondent." However, while the complainant may believe that the poor evaluation and denial of a pay raise are relevant to her constructive discharge claim, at the time the complainant tendered her resignation, on July 25, 1995, she had received her pay raise retroactively and was under the supervision of Mr. Jacobsen, who had given her an acceptable evaluation. Although the evaluation and pay raise incidents may have provided relevant background to the complainant's constructive discharge claim, evidence regarding adverse employment actions occurring in excess of six months before the complainant tendered her resignation and that were not ongoing at that time has little probative value in determining whether the work environment was so intolerable at the time of her resignation that a reasonable person would have felt compelled to quit.

Moreover, even if it could be said that both the terms and conditions claim and constructive discharge claim did involve similar facts, this alone would not mandate that the complainant receive a fully compensatory fee award. Even where there is a common core of facts and much of counsel's time is devoted generally to the litigation as a whole, "the [decision-maker] should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." Hensley v. Eckerhart, 461 U.S. 424, 31 FEP Cases 1169, 1173-1174 (1983). "If . . . a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith." Id.

It seems clear that the most significant issue presented in this case and the one which would have entailed the most substantial remedy was the constructive discharge issue, upon which the complainant did not prevail. Further, although she did prevail on the most significant aspects of her terms and conditions claim, she did not prevail on this claim in its entirety. Under the circumstances, and considering the amount of testimony that was devoted to claims on which the complainant did not succeed, the administrative law judge's conclusion that the litigation would have been reduced by fifty-five percent if the complainant had focused solely upon those issues on which she prevailed does not seem unreasonable.

D. Attorney Fees for Petition for Review

In addition to the above, the complainant is entitled to reasonable attorney fees related to her efforts in responding to the respondent's unsuccessful petition for review. The commission has reviewed the complainant's fee request and the respondent's objections. As the respondent has accurately noted, there are several items for which the complainant requests payment that must be disallowed. For example, the $183.71 amount dubbed "previous balance" cannot reasonably be considered related to work on the petition for review and must be disallowed. In addition, the complainant's request for a twenty-five percent fee enhancement is denied. Although the complainant's attorney indicated that she submitted a brief explaining why a fee enhancement is warranted, no such brief was submitted to the commission, even after the respondent specifically reminded the complainant's attorney of its absence. Thus, the complainant has not provided any reason to believe that she is entitled to such an enhancement. Next, the respondent correctly points out that reimbursement for time spent corresponding with the United States Equal Employment Opportunity Commission should be disallowed, as this relates to the complainant's federal claim and not to her claim before the commission. Finally, the respondent indicates that overly vague entries such as "worked on file" or "reviewed file" are not reimbursable. The commission agrees.

In addition to those items specifically identified by the respondent, the complainant's fee request contains other items which the commission does not find to be compensable. The time spent preparing the complainant's petition for review and researching and briefing issues in support of her petition is noncompensable, as the complainant did not prevail in that matter. The commission has also deleted items for "telephone call to client" or "letter to client," which are vague and cannot be considered related to the complainant's response to the respondent's petition for review.

After removing the items mentioned above, the following are the items which the commission considers compensable:

01/30/97 Interoffice conference with DMH re transcript .2 hours

01/20/97 Reviewed correspondence from attorney Aberg re petition for review and brief .5 hours
01/30/97 Reviewed correspondence from attorney Aberg re transcripts; Telephone call with ERD re transcript; Interoffice conference with JGB; Letter to ERD .3 hours
08/27/97 Letter to ERD .2 hours
09/11/97 Reviewed correspondence from LIRC .1 hours
10/02/97 Letter to LIRC .2 hours 10/21/97 Reviewed correspondence from Aberg re appeal supplementation .2 hours 10/27/97 Worked on reply brief; Legal Research and Briefing .3 hours
10/28/97 Prepared draft of reply brief; Legal Research and Briefing; Interoffice conference with Attorney James G. Birnbaum 4.9 hours
10/28/97 Prepared final of brief .4 hours
11/03/97 Reviewed correspondence from Atty. Aberg .2 hours

The above amounts to 7.3 hours at Attorney Harris' hourly rate of $100 and .2 hours at Attorney Birnbaum's hourly rate of $150, for a total of $760 in compensable fees related to the complainant's efforts responding to the respondent's petition for review. The commission has modified the administrative law judge's order to include the payment of such fees by the respondent.



I am unable to agree with the result reached by the majority herein and I dissent. The majority finds that the employer discriminated against the complainant because Mr. Rung gave her a bad evaluation in retaliation for her filing a complaint. They looked to comments in his report and decided because they are not constructive criticism that they must be retaliation.

I have reviewed the evaluations and I do not believe that Mr. Rung's style changed from the first evaluation in Exhibit 3 where he wrote "Her judgement, at times, has been quite poor and has required significant follow-up on my part, which would have been unnecessary had she followed my directions or checked with me first (e.g. Hanson Group Home, foster care survey.)" "She forgets names, e.g., Chris K. therapist is that woman down the hall in the corner office. She is inaccurate in who called or what they wanted, e.g. Vernon County social worker J.H." "...she is generally on time for the workday to start and is generally punctual at appointments and meetings." Mr. Rung rated her acceptable the first time.

The complainant replied to the first evaluation by often shifting the blame to Mr. Rung for her shortcomings. "Additionally, the use of the term `generally punctual' implies times when I have been late. I can recall no instances when I have been late for work or appointments. Furthermore, I have never been formally addressed about my appearance or punctuality for work." "I also want to address the reference to not knowing my co-workers' names and job functions. I was not formally introduced to all of my co- workers. I would like to recommend introductions occur at the time of hire. This process could include each employer briefly explaining their job duties. I did follow through with my supervisor's recommendation to meet all my co-workers and learn their job functions." "Since my employment, I have received conflicting messages regarding priorities and expectations prior to performing job duties. My training has also been fragmented and unclear. For instance, methods of completing dictation were not clarified prior to performing the task."

Exhibit 4, the evaluation for November 18, 1992 which ended her probation, had no commentary but merely consisted of checked lines.

The complainant filed a grievance on August 20, 1993 in which she charged her supervisor with "Harassment: Inappropriately addressing grievant on job assignments, duties and while conducting assessment on work abilities. Ineffective supervision due to lack of training grievant, punitive techniques, threatening job status, inconsistent direction on case management issues, and lack of knowledge about the position of grievant. Inappropriately directing grievant to donate personal time to complete job tasks. Conducting inappropriate conversations with grievant. Issues resulting in stress, tension, physical illness, isolation from co-workers, and decrease in productivity."

The employer investigated the grievance and basically found against the complainant but also found that the working relationship had deteriorated to the point it was not practical for them to work together. This investigation did show evidence that co-workers also were frustrated with the complainant asking information about a situation from multiple social workers before making a decision. That management had the right to preempt her schedule, that he could participate in interviews and meetings with foster parents, that non-represented people were not entitled to comp time for paperwork and dictation. The complainant was given the same training that other workers received.

The evaluation by Mr. Rung on December 7, 1993 is the evaluation that the majority finds discriminatory. Mr. Rung did have positive as well as negative points. Under the category QUALITY: Thoroughness; accuracy; judgement, neatness; punctuality; attendance; alertness. Mr. Rung mentions she had generally corrected her problem of not being on time. He is critical when he says "Michelle does not accept corrective action or mentoring. She attempts to explain or justify why something may not be done accurately or completed timely and correctly."

Under the category QUANTITY: Volume of acceptable work under normal conditions; extent deadlines are met; planning and organizational skills. "Michelle has improved in this area as it relates to court work and where there are defined timeframes as dictated by statute. When Michelle is required to work in this area, other areas of job responsibility suffer, the foster care program specifically. The foster care program is subjective and requires self-monitoring, and is an area Michelle has struggled with most. ... I have shared with Michelle complaints I have received from foster parents and when the names of the complainants have not been given her, she dismisses the information saying that they (foster parents) are lying and she did not do or act as they have reported. This is another area where Michelle is unable or unwilling to accept correct actions that are brought to her attention."

JOB KNOWLEDGE: Understanding of facts pertaining to job; ability to retain and apply knowledge; stability; initiative; creativity. "Michelle appears knowledgeable in the area of foster care both juvenile and adult, as defined by statute or administrative rule. She uses the resource of the Foster Care Coordinators in the Western Region quite well and has continued involvement with the group. Michelle has not been able to demonstrate this same knowledge base as it relates to the Children's Code. She does not understand the statute and does not read and familiarize herself with the statute when instructed to do so. Michelle does not appear able to transfer knowledge from one case to that of another with similar circumstance. Michelle is unable to problem solve a case to conclusion and is frequently asking numerous people what to do about a case.

I have encouraged networking and learning from her peer group. However, Michelle discusses the same case with so many people that this has become confusing for her; as each worker has their own style and approach to a case. Michelle appears unable to do creative problem solving and sends conflicting messages to families about what she will or can do. She has been offered assistance through seminars and this supervisor attending client meetings with her. She has staffed cases individually and with the unit and this has not resolved the ongoing concern."

ATTITUDE: Interest in work; accepts responsibility; reaction to criticism; tact; courtesy; relationships with other (including fellow employees, supervisor, and general public). "Michelle is unwilling to accept her responsibility for a case decision. She wants an answer to a question and does not want to be part of the problem solving process. This is evidenced in daily work as well as `on call' responsibilities. Michelle does not learn from having her work critiqued. She attempts to explain or justify what she has done and insists that she is right. She will do as she pleases to do and if she is confronted after the fact she denies being told. Michelle does express an interest in her job and has good attendance. She will need to work in deficit areas and be willing to accept critique and grow from it.

Michelle is not forthright and trustworthy. Considerable time is spent following up with her after she has made a decision. She does not operate within agency timelines or what would be considered a reasonable timeframe. Staff have complained specifically in her role as foster care coordinator, and with my own observations, I have determined she can not continue in that capacity."

APPEARANCE: Appropriateness for work setting. "Michelle is generally appropriately dressed for the work setting. I have spoken with Michelle that because of her role with the court, contacts with schools and outside agencies, jeans should not be worn. She ignores this counsel and wears them anyway."

Kent Jacobsen was the complainant's supervisor for the last month of the evaluation period. While he gave her a satisfactory evaluation he did indicate he could not rate her judgment abilities, the quantity category, the job knowledge category. He also indicated that she had a dispute with a co-worker over some union issue which further isolated her from her co-workers. It should also be noted that she no longer had the foster care coordinator assignment. Jacobsen also observed that in a court appearance, Michelle testified differently from a recommendation made by her previous and her present supervisor. This had been discussed prior to the court appearance. By the time Jacobsen was her supervisor she had stopped wearing jeans.

Jacobsen did a second evaluation in 90 days and rated her satisfactory but needs improvement. He did write "Michelle's inexperience shows in the areas of problem solving and problem identification. Often times the identified problem is actually only a symptom of the real issue. This leaves the family and the social worker reacting to rather than resolving issues." "I think, like so many new social workers, she gets caught up in reacting to situations in her caseload rather than managing it. This goes back to the problem solving area, which consists of working with the individual and family in identifying problems, what they are, what causes them, and whose problem they are. I think there is a need for creative problem solving on Michelle's part and in orchestrating that the families."

Exhibit 47 was an attempt by Michelle to document her complaints about Mr. Rung. The first date is June 8, 1993. She questioned Rung about why he attended some foster parent meetings. She writes "He admitted he was attending to assess my abilities as coordinator. I feel this should have occurred during my probation (1st 6 months). He said, `I see your abilities in this position as being lower than you see them as.' I felt very demeaned and insulted. Mr. Rung said the foster care program is in trouble and he needs to assess why. I clarified the program was in trouble before I came. He agreed and said he also needs to assess how my actions may be effecting the program now. He referred to two foster parents calling with negative comments about me in March of 1993. I felt those concerns had been addressed - as I approached Kent Jacobsen about the approach Dave R. took with me when the concerns came to his attention (demeaning, cruel, abusive, etc.) ...Kent J. said he did not want to tell me the names of the foster parents as they would be embarrassed. I see this as acknowledging the comments made about me as insignificant."

Using her notes the complainant testified about June 28, 1993. "There were frequent times Mr. Rung caused me to be late to an appointment. On that day I was heading out of my office and was preparing my paperwork to go to a client's residence. He passed by my office and said he needed to speak to me immediately, it could not wait. I tensed up because it sounded extremely urgent and important. I explained that I was on my way out the door. He had me change a word in a letter I had drafted. Mind you, throughout my employment under him, even after my probationary period, I had to turn in every memo, letter, report, everything I ever wrote for approval before it went out. It delayed me for my appointment 15-20 minutes. Had I been able to leave, I would have been on time. I never saw anyone else's work critiqued in the same manner."

Her notes for July 7, 1993 report "Dave said that 30 days is too long to wait on a client contact for a home study. I explained I wasn't aware of that. He said Don Mulry has a policy a contact must be made in 5 days. I said I was not aware of this policy, I further explained I had periodically attempted to contact Betty at home and left a of attempted contacts, but I was sending a letter out today of a tentative appointment for Betty. I also clarified I did not believe it was a full month since I was aware the case was referred to me. I do not feel discussions of this type are necessary as I do not neglect my work responsibilities. Yet, Dave again made me feel as if I have failed at being efficient and organized with timely contact."

There is a note from July 22, 1993 where the complainant says that Dave approached her about voluntarily switching positions. "He said he does not believe I have the abilities to carry out the job functions of the dual position I am currently in. He gave me a lot of positive comments about my case management skills and he indicated he felt I could better apply my abilities where there wasn't the dual roles."

The August 4, 1993 notes say "Dave requested I review Wis. Statutes 48.357 and 48.363. He wanted me to review these to draw a connection based on two of my clients transitioning home in mid-August. ...This was asked of me at 4:20 p.m. I was to report my knowledge to him by 9 A.M. 8-5-93. I had to again adjust my agenda for his priority list." She then testified "I had appointments scheduled and I had to contact the people to reschedule. In the 10 minutes left in the day Mr. Rung could have explained the code quicker than I could read it and interpret it. ... Mr. Rung knows the Juvenile Code like the back of his hand. He is well-versed on it and was uncooperative in sharing his knowledge with me regarding interpretation of the Codes. He has had years of experience with the Codes and I was a novice in comparison. He said I told him in the past that I learned by doing, therefore, he wanted me to read the Code. I explained again that `learning by doing' meant doing the process; I could read the Code all day but if I am interpreting it incorrectly, I do not know how rereading it without additional information was going to help me understand it. It would have taken 10 minutes to explain the Code to me, rather than making me rearrange the next day's schedule to accommodate him."

I think the various examples from her notes and testimony show that Mr. Rung's evaluation was not unfair or based on anger he may have felt from her filing her discrimination complaint. It seems to me that her notes especially show that the kind of criticism Mr. Rung expressed was for behavior that had already been established prior to her discrimination case or even her grievance.

For these reasons, I would reverse and find that there was no discrimination and dismiss the case.

Pamela I. Anderson, Commissioner

Attorney Dawn Marie Harris
Attorney Joel Aberg

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(1)( Back ) "The overruling of a judicial decision generally is retrospective and makes the law at the time of the overruled decision as it is declared to be in the last decision." Libby, McNeill & Libby v. Dept. of Taxation, 260 Wis. 551, 557 (1952).

(2)( Back ) The respondent also claims that the administrative law judge exceeded his authority by making findings of fact with respect to the underlying sexual harassment complaint, since that matter is not at issue in this case. However, the administrative law judge is not barred from including background information in his findings of fact, provided the findings are supported by evidence in the record. The decision contains no conclusions of law with respect to sexual harassment and the administrative law judge did not issue any order addressing that point. Consequently, the commission sees no reason to strike the factual findings in question from the decision.

(3)( Back ) Although the hearing synopsis indicates that Mr. Rung testified the evaluation may have been colored by the complaint, the respondent correctly points out that Mr. Rung did not make any such statement. While, based upon its review of the entire record, the commission does believe that Mr. Rung's evaluation of the complainant was colored by her complaint, it has drawn this inference from other evidence in the record.

(4)( Back ) The dissenting commissioner suggests that, because Mr. Rung used an unprofessional tone in a previous evaluation, the rude and unprofessional tenor of his most recent evaluation was not evidence of discrimination on his part. However, while the fact that a prior evaluation also contained some harshly stated criticisms may be proof that Mr. Rung needed to improve his supervisory style, it does not establish that the evaluation at issue, in which Mr. Rung assailed the complainant's character and trustworthiness, was written free from discriminatory animus. Further, although the dissent indicates that the majority's finding of discrimination is premised solely upon the tenor of the evaluation, the majority also considered the facts that Mr. Rung's prior evaluation of the complainant had been satisfactory, that Mr. Jacobsen gave the complainant a satisfactory rating, that the evidence in the record did not convincingly establish that the criticism of the complainant's performance was justified and, finally, that Mr. Rung admitted he drafted the evaluation while angry at the complainant for having filed a sexual harassment complaint.

(5)( Back ) The commission also considers it noteworthy that, in a decision handed down only a month after Smart, the same court opined that there is nothing in the law of retaliation that restricts the type of retaliatory act that might be visited upon an employe who seeks to invoke her rights by filing a complaint. Knox v. State of Indiana, 93 F.3d 1327 (7th Cir. 1996). In Knox, the court cited its Smart decision, not for its narrow statement regarding performance evaluations, but for the proposition that adverse employment actions can come in many shapes and sizes and that the definition of "adverse employment action" is broad.

(6)( Back ) Wis. Stat. 804.12(1) provides, in relevant part: "(c) Award of expenses of motion. 1. If the motion [to compel discovery] is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust." (emphasis added)