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



ERD Case No. 200100463, EEOC Case No. 26GA10693

An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

The last sentence of paragraph 8 of the Findings of Fact is modified to read as follows to more accurately reflect the record:

Radlinger explained the situation to Schreiner and Schreiner said he needed to make sure it was the right form.

The final sentence of paragraph 11 of the Findings of Fact is deleted and the following substituted in order to more accurately reflect the record:

Radlinger did so and Porter, after consulting with counsel, terminated Radlinger's employment. Respondent cites as the reasons for the termination Radlinger's failure to communicate with management and her refusal to sign the bank authorization form. Porter was not aware of Radlinger's failure to sign the bank authorization form when he made the termination decision.

The following language is added to paragraph 3. of the Order:

If the parties are unable to reach agreement on the amount of back pay, a request for hearing should be filed. Respondent will not be permitted to litigate the mitigation of damages issue it has raised here as a part of this hearing or otherwise since this issue was not properly raised as an affirmative defense in this matter.

The amount of attorneys' fees and costs stated in paragraph 4. of the Order is modified from $3,172.50 to $6,594.00 in accordance with the petition for supplemental attorneys' fees filed by complainant and in the absence of objection from the respondent.


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

Dated and mailed June 20, 2003
radlicr . rmd : 115 : 9   

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


The employee worked as a shift supervisor for the employer, a fast food restaurant, until her indefinite layoff on January 15, 2001.

In a retaliation case under the Wisconsin Fair Employment Act (WFEA) like this one, the employer's motivation is the ultimate issue. Callaway v. Madison Metro. School District, ERD Case No. 9101304 (LIRC, Nov. 27, 1996)   In order to establish a prima facie case of retaliation, the employee must show (1) that she opposed an unlawful employment practice, (2) that she suffered an adverse employment action, and (3) that there was a casual connection between the opposition and the adverse action. Sarazin v. W & G Transport, ERD Case No. 199601006 (LIRC, March 9, 1999)   The causal connection can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Notaro v. Kotecki & Radtke, S.C., ERD Case No. 8902346 (LIRC July 14, 1993);  Horton v. Hopkins Chemical Co., (LIRC, June 8, 1992), aff'd, Dane Co. Cir. Ct., April 28, 1993.  The employer can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action, and the employee can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct. Acharya v. Carroll, 152 Wis.2d 330, 448 N.W.2d 275 (Ct. App. 1989).

The respondent argues that, because Radlinger failed to cooperate in its investigation of her discrimination claims, she is not entitled to protection from retaliation under the WFEA, i.e., that she failed to satisfy the first element of her prima facie case. The respondent cites Merkel v. Scovill, Inc., 787 F.2d 174 (6th Cir. 1986), (1)   and Maness v. Star-Kist Foods, 7 F.3d 704 (8th Cir. 1993), in support of this argument.  Laying to one side the problems inherent in relying upon federal courts' interpretations of federal law in interpreting the parallel but not always identical provisions of the WFEA, the facts and applicable law in Merkel and Maness are distinguishable from those under consideration by the commission here. The court in Merkel interpreted the specific provisions of the federal Age Discrimination in Employment Act (ADEA) in concluding that the complainant, who had actively obstructed the investigation of the incident underlying the age discrimination claims of two of his co-workers, was not entitled to protection from retaliation under the ADEA. However, the ADEA, unlike the WFEA, only provides protection when an employee has "made a charge, testified, assisted or participated in any manner in any investigation, proceeding or litigation under the ADEA."  Merkel was claiming ADEA protection from retaliation for "participating" in an "investigation." Because the evidence had shown that Merkel had actually refused to participate in the investigation, the court, concluding that lack of participation or nonparticipation does not satisfy the "participation" language of the ADEA, held that Merkel was not entitled to protection from retaliation under the ADEA. The language of the WFEA is much more expansive and Radlinger, as a result, is not claiming protection based on her "participation" in an "investigation" as in Merkel, but instead is claiming protection, pursuant to Wis. Stat. § 111.322(3) (2),  based on her opposition to a discriminatory practice, i.e., her complaint to respondent's management that she was being discriminated against on the basis of her sex and marital status.

The decision in Maness, a Title VII action, did not address whether the complainant was entitled to Title VII protection from retaliation. As a result, although, as discussed below, the Maness decision may have some relevance to an analysis of the merits of this case, it does not, as the respondent appears to argue, support a conclusion that the complainant failed to establish that she was entitled to protection from retaliation under the WFEA.

The only real issue here is whether the employee succeeded in proving that the reasons offered by the employer for her indefinite layoff, i.e., her refusal to cooperate in the employer's investigation of her allegations and her refusal to sign the bank signator authorization form, were a pretext for retaliation.

The record does not establish that Porter was aware or had any reason to be aware prior to the layoff meeting that the complainant had refused to sign the bank form. The only testimony relating to this point comes from Porter and Pat Schreiner. Pat Schreiner testified that he did not discuss this matter with Porter on January 15 because he was not at work that day. Pat Schreiner does not testify that he discussed it with Porter prior to January 15. As a result, Pat Schreiner's testimony does not establish that Porter had any reason to know about Radlinger's alleged refusal to sign the form prior to his decision to lay her off indefinitely. Porter first testified that he did not learn about Radlinger's alleged refusal to sign the bank form until after he met with her on January 15. Since he laid Radlinger off at this meeting, this testimony would establish that Porter was not aware of this alleged refusal at the time he made the layoff decision. Porter then testified that he learned of Radlinger's alleged refusal from Pat Schreiner on January 15 before he met with Radlinger. Porter then admitted that Pat Schreiner was not at work on January 15 so this conversation could not have occurred. As a result, the credible evidence of record establishes that Porter was not aware of Radlinger's alleged refusal to sign the bank form when he laid her off on January 15. Since the respondent could not have based its layoff decision on this factor, its representation that it did demonstrates pretext.

In addition, the record establishes that the employee fully cooperated with the employer's investigation until she reasonably concluded that her conduct was also under investigation. The employer was asking her questions about serious issues, i.e., her allegations of illegal discrimination and her knowledge as to criminal activities in the restaurant, and the complainant not surprisingly decided it would be advisable to have counsel present before she answered any more of the employer's questions. The complainant did not refuse to participate in the employer's investigation, she simply refused to participate without her attorney present. That is a critical distinction. To discharge a long-term supervisory employee with a satisfactory performance record for making a reasonable request establishes pretext, i.e., that the employer's motivation for the layoff was a retaliatory one. This conclusion is reinforced by the fact that Pat Schreiner, the restaurant's general manager and one of complainant's supervisors, admitted to committing and condoning criminal activities in the workplace, but, in contrast to complainant's discharge through indefinite layoff for requesting the presence of counsel, received a written reprimand for his conduct.

The respondent argues that the decision in Maness requires a different result. In Maness, the complainant assisted a co-worker with her sex discrimination claim against the respondent. The trial court found that the employer discharged Maness not in retaliation for this assistance to his co-worker, but instead because he had refused for a year to discuss with the employer's attorneys the extent to which he had disclosed potentially privileged information to the co-worker's attorney. Maness was represented by an attorney throughout the process, and his attorney was actively involved in all communications with the employer. Here, the complainant, unlike Maness, did not refuse to participate in the respondent's investigation of her discrimination complaint, but instead, reasonably refused to participate without her attorney present.

In regard to the proper remedy here, the respondent argues that, because the practice in an equal rights proceeding is to bifurcate the hearing process, i.e., to hear the case on the merits and, if the complainant prevails, to remand the case for a remedy hearing, (3)  this case should be remanded for a remedy hearing, and the issue for this remedy hearing should include whether the complainant failed to mitigate her damages. However, a mitigation of damages issue is required to be pled as an affirmative defense in the respondent's answer. Wis. Adm. Code § 218.12(2); Kalsto v. Village of Somerset, ERD Case No. 199802509 (LIRC, Oct. 3, 2000). Here, the respondent, represented by counsel at the time, filed its answer in response to the hearing notice on September 4, 2001, and pled an affirmative defense, but not one relating to its contention that the complainant failed to mitigate her damages. As the commission held in Kalsto, supra, "the asserted usual practice of bifurcated hearings does not justify failing to plead the affirmative defense in the answer, or support the contention that the affirmative defense could be first pleaded after the hearing." Consequently, if the parties are unable to reach agreement on the amount of back pay to which the complainant is entitled and a hearing on this issue becomes necessary, the respondent will not be able to raise the issue of mitigation of damages as a part of this hearing or otherwise as a part of the remedy phase of these proceedings.

Finally, the complainant has supplemented her request for attorney's fees and costs and, after reviewing such request and in the absence of any objection from the respondent, the commission awards such additional fees.

Attorney Maris Rushevics
Attorney Glenn L. Smith

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(1)( Back ) It should be noted that this case was incorrectly cited on page 17 of respondent's January 30, 2003, brief. This case was decided by the 6th circuit in 1986, not in 1985 as cited by the respondent.

(2)( Back ) ". . . it is an act of employment discrimination . . . (3) [t]o discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified, or assisted in any proceeding under this subchapter."

(3)( Back ) Actually, the typical practice when a complainant prevails is to issue a generally-worded back pay order, and to hold a remedy hearing only if the parties cannot agree on the amount of back pay owed. Toonen v. Brown County, (LIRC, Oct. 15, 1992); Kaczynski v. WSR Corporation Whitlock Auto Supply, ERD Case No. 9350108 (LIRC Oct. 29, 1997).


uploaded 2003/06/27