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



ERD Case No. CR200600904, EEOC Case No. 26G200600818C

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 is inserted after the first sentence in paragraph 2 of the administrative law judge's FINDINGS OF FACT:

"Ms. Freeman's race is white. Her husband's race is black."

2. In the last sentence of paragraph 7 of the administrative law judge's FINDINGS OF FACT the words "when they" are deleted.

3. Paragraph 37 of the administrative law judge's FINDINGS OF FACT is deleted and the following is substituted therefor:

"Don Gutknecht did not consider the complainant to have opposed a discriminatory practice, nor did he believe she was going to file a wage complaint."

4. The following paragraph is inserted after paragraph 37 of the administrative law judge's FINDINGS OF FACT, and the remaining paragraphs are renumbered accordingly:

"Don Gutknecht did not consider the race of Ms. Freeman's husband when he decided to terminate her employment."


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

Dated and mailed July 18, 2011.


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


In her petition for commission review the complainant argues that the administrative law judge erred in concluding that the respondent did not believe she was going to file a wage claim. The complainant maintains that, during an argument about her unemployment insurance and worker's compensation claims, the respondent told her she would not receive a cent and would never work again, to which the complainant responded that she was going to "take it to Equal Rights" and "take it downtown to my lawyer." The complainant contends that she was not required to use any "magic words" in order to provide notice that she intended to file a wage claim. She further maintains that, even if the respondent did not know she was referring to filing a wage claim, it should have known this was the case, since her unemployment claim was, in effect, a claim about not getting paid, and because she told the respondent's owner he was requiring her to do work for which she would not be paid. The complainant further contends that the only logical conclusion to be made when someone states she is going to a law enforcement agency is that she believes a law has been violated and that the agency identified has the authority to rectify the violation of law, and that she intends to file a complaint of some kind.

The complainant's arguments fail. The retaliation statute is concerned with the motives of the employer. Hephner v. Rohde Brothers Inc. (LIRC, Aug. 16, 2005). While the law does not require any "magic words," and an employee need not make an explicit threat to file a wage claim, she must nonetheless present some evidence that would warrant a conclusion that the respondent formed the belief she may do so. Jancik v. Advantage Learning Systems (LIRC Sept. 16, 2005). In Jancik, the commission gave examples of situations in which it concluded the respondent had formed such a belief:

In prior decisions involving this issue, in which the commission has found a violation of the statute in the absence of an explicit threat to file a complaint, the employee has given the employer some indication of his or her intention to file a wage claim, and it has been apparent from the facts that the employer believed the employee intended to take such action. For example, in Travis v. D.C. Nevels Trucking, Inc. (LIRC, Oct. 7, 2002), the commission found discrimination where the employee told the employer's owner that he had spoken with the Department of Transportation and had been advised that he should tell the employer he was not making a prevailing wage, to which the owner responded that the employee was raising her blood pressure, that she never had any problems like this until he came to work for her company, and that he was trying to get the company in trouble with the Department of Transportation. The employee was discharged on the spot. Similarly, in Hickman v. Milwaukee Immediate Care Center (Feb. 16, 2000), the employee told the employer that she felt its manner of paying overtime was illegal and that she had called the Labor Standards Bureau about the overtime issue, to which the employer responded it could not believe the employee had done that, and that her actions were undermining and underhanded. The employee was discharged the following day.

Both Hickman and Travis involve situations in which the employees notified their employers that they had spoken to state authorities about their wage issues, and in which the employers made it clear that they believed the employees were planning on causing problems for them with the state. . . .

The facts in this case fall well short of what would warrant a finding that an employee has engaged in protected activity. Assuming, without deciding, that the complainant did make the statement at issue, there is simply no reason to believe that the respondent would have interpreted that statement as a threat to file a wage claim. The complainant did not tell the respondent that she intended to file a wage claim, and her comment about contacting the Equal Rights Division was made in the context of an argument that was unrelated to wages. Contrary to the complainant's assertions, her unemployment claim was not about unpaid wages, and only a very creative reading of the facts would allow such an interpretation. Further, while the complainant contends that the respondent should have known she was referring to filing a wage claim, because she had previously told the respondent's owner, Don Gutknecht, that she believed she was being required to perform work for which she was not paid, Mr. Gutknecht denied that this occurred, and nothing in his testimony warrants a conclusion that he believed there was a wage dispute. In fact, even the complainant did not testify that she complained to the respondent that she was not being paid, and the only evidence the complainant can cite to on this point is the testimony of a third party, Jennifer Burg, who stated she heard the complainant tell Mr. Gutknecht that she did not understand why she was being asked to come in when she had no clients and was not getting paid for it, to which Mr. Gutknecht responded there was other work she could be doing. Assuming this conversation transpired, however, it would in no way have put Mr. Gutknecht on notice that the complainant believed she had a basis to file a wage claim or that she intended to do so.

Next, the complainant maintains that the administrative law judge erred in finding she did not oppose a discriminatory practice. The complainant contends that she opposed sexual harassment in the workplace when she told Mr. Gutknecht that he needed to "watch it with these girls" and that he was making them uncomfortable. However, the commission agrees with the administrative law judge that the complainant failed to demonstrate she engaged in any protected conduct with respect to the alleged complaints about sexual harassment.

It is not enough to simply complain about objectionable conduct. Rather, in order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. Cangelosi v. Robert E. Larson and Associates, Inc., ERD Case No. 8821554 (LIRC Nov. 9, 1990). In Engen v. Harbor Campus (LIRC Feb. 22, 2008), for example, the commission found that an employee's statement to her employer that she thought it was out of line for its operations manager to be hugging workers was deemed insufficient to put the employer on notice that the employee was complaining of sexual harassment.

In this case, Mr. Gutknecht denied that the complainant ever said anything to him about the way he treated female employees. However, even crediting the complainant's testimony to the contrary, her statement to "watch it with these girls" or that he was making female employees feel uncomfortable was too vague to have put the respondent on notice that the complainant believed he was engaging in any conduct that violated the law. The commission further notes that the complainant has not explained when this alleged conversation took place in relation to her discharge. Consequently, even if it could be found that her comments to the respondent constituted protected opposition -- and the commission wishes to emphasize that it does not believe this was the case -- it would be difficult to make any connection between that conduct and the complainant's discharge.

Finally, the complainant argues that the respondent has not provided a legitimate, non-discriminatory reason for the discharge, since the respondent's explanation that it discharged her for stealing chicken strips was not credible. Again, this argument fails. The commission initially notes that, because the complainant's evidence failed to demonstrate that she engaged in any protected conduct, it is unnecessary to decide whether the respondent's explanation for its actions was credible. Absent any evidence that the complainant engaged in protected conduct, there can be no basis to find that discrimination occurred.

That said, the commission sees little reason to doubt the explanation provided by the respondent. The record establishes that, prior to the complainant's discharge, the respondent began to notice that its inventory of chicken strips (dog treats) was low even though its records did not indicate that it was selling this item. The respondent's son testified that he watched the security video on the complainant's last night of work, and saw her taking chicken strips. The following day the respondent's owner, Don Gutknecht, talked to Jennifer Burg, who was working behind the counter at the time the chicken strips were taken. Ms. Burg told him that she believed the complainant intended to purchase the entire jar of chicken strips, but forgot to take it. Mr. Gutknecht opened the jar and saw that the seal was broken and some of the contents removed.

At the hearing the complainant offered a different version of events. She testified that she intended to purchase chicken strips and asked Ms. Burg to write up a slip so that the cost could be deducted from her paycheck. Ms. Burg confirmed that she began to write up a slip for the dog treats and intended to complete it the following day. She testified that she showed the slip to Mr. Gutknecht when he asked her about the matter. However, Mr. Gutknecht testified that Ms. Burg never told him she was filling out a purchase slip for the complainant. The commission sees no reason to doubt the credibility of this testimony, notwithstanding the complainant's various arguments to the contrary.

Based on all the evidence, the commission is satisfied that the respondent believed the complainant was stealing from it. That belief, even if mistaken, provides a legitimate, non-discriminatory reason for terminating the employment relationship. See, Fink v. Sears Roebuck & Co. (LIRC, March 1, 2007); Grell v. Bachmann Construc. (LIRC, July 15, 2005).

The commission has considered the remaining arguments raised by the complainant in her brief to the commission, but finds them similarly unpersuasive. Because the complainant failed to demonstrate that she was discriminated against in the manner alleged, (1)  the dismissal of her complaint is affirmed.


Attorney Brenda Lewison
Attorney Russell C. Brannen, Jr.

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(1)( Back ) The hearing in this matter also addressed the issue of whether the complainant was discharged based upon the race of her husband, and the administrative law judge's decision contains findings and conclusions with respect to that issue. However, the brief in support of the complainant's petition for commission review is confined to the retaliation issues and the complainant indicates that she has dropped her claim of race discrimination. The commission has therefore not addressed that issue in its Memorandum Opinion. 


uploaded 2011/07/19