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

ROSE HORTON, Complainant


ERD Case No. 8822828, EEOC Case No. 26G871705

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 20, 1990. Respondent filed a timely petition for review by the Commission and both parties submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:


The FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER, of the Administrative Law Judge (copy attached) are modified as follows:

Delete paragraph number 2 of the ORDER and substitute therefor the following:

"That a hearing concerning remedy shall be held in due course. A notice giving the exact time and location of this hearing shall be sent by the Division. This Order in no way prevents the parties from making any stipulations with respect to remedy which would obviate the need for a hearing on remedy or limit the issues for hearing."

As modified, the FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER of the Administrative Law Judge are affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed June 8, 1992

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner



This case concerns the question of whether Respondent discharged Rose Horton because she had engaged in practices in opposition to alleged discrimination. The general outlines of the case are relatively undisputed. Horton did clearly engage in protected activity, complaining to her supervisors about alleged sex discrimination against females at Respondent, in 1985 and 1986. Both Horton's then immediate supervisor, Kurth, and Respondent's Director of Manufacturing, Schwalenberg, were well aware of this activity. Kurth was demoted by Schwalenberg in 1986 for poor performance, and Schwalenberg took over his responsibilities. He then gave Complainant an evaluation that was essentially average, with some favorable and some unfavorable comments, but Horton became quite upset about it. The matter came to a head in a meeting on July 24, 1986, in which Schwalenberg fired Horton.

To make out a prima facie case of retaliation, a complainant must show that she engaged in protected activity, that the employer subsequently took an adverse action against her, and that "a causal link" exists between the protected activity and the adverse action. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989). The "causal connection" between the protected activity and the adverse action can be inferred from a close proximity in time between the protected activity and the adverse action. Holland v. Jefferson National Life Insurance Co., 883 F.2d 1307 (7th Cir. 1989), Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985), Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, aff'd. 545 F.2d 222 (1st Cir. 1976). Here, there is a clear chronological link. Although Horton's oppositional activities began in 1985, as late as April 1986 she was continuing her involvement with such issues, when, she and Graham met with Schwalenberg and asked him why their requests for a raise were still being held up because of Graham's discrimination complaint. It was less than three months later that Schwalenberg fired Complainant. The record clearly establishes that Horton engaged in protected oppositional activity, and the proximity in time of the oppositional activity and the discharge is adequate to permit an inference of a connection sufficient to establish the "causal link" necessary to establishment of a prima facie case. Particularly because this is in any event a case in which the Respondent proceeded as if a prima facie case had been made out, by articulating a nondiscriminatory reason for its challenged action, the issue becomes simply whether or not Horton met her ultimate burden of proving that Respondent retaliated against her, by demonstrating that its articulated nondiscriminatory reason for the discharge was a pretext for retaliation

It is not disputed that the decision to discharge Horton was made by Schwalenberg. The most concise assertion by Schwalenberg of his reason for terminating Horton is contained in his deposition (which was received into evidence at the hearing) in which he testified that the sole reason he terminated Horton was because of her reaction to her evaluation (Deposition, p. 16). Schwalenberg also explained his decision to terminate Horton by stating that she was fired because he felt that she was overreacting tremendously to her evaluation, that she was not being at all cooperative, that she did not want to resolve the issue at all, that she wasn't even going to discuss it, and that he felt he could not trust her anymore and felt that the working relationship between them was not going to work out and that they were not going to get anything done (Deposition, p. 15). He also testified that he terminated her during their meeting because he felt they weren't getting anywhere, that she was being totally uncooperative, not amenable to any solution at all, that there were no suggestions on her part as to what they could do to resolve the issue, and he felt he could no longer work with her (TR 54-55) . Finally, he testified that he discharged her because it was his opinion that there was no way that he could restore a relationship with her in light of what happened and that he did not see how he could continue to work with her (TR 57-58). (1)

A great deal of evidence was introduced at hearing concerning the actions of Horton and Schwalenberg in the last days of Horton's employment, in part reflecting actual disputes as to what in fact happened, and in part involving essentially uncontradicted matters offered to establish or rebut inferences about what motivated Schwalenberg in his-decision to terminate Horton. It is not the purpose of the Commission, in adding this memorandum opinion, to describe in detail its view of these issues. The Commission has reviewed the record in detail, and has given consideration to the arguments submitted by the parties with respect to these issues It is satisfied that the resolution of the factual questions presented in this case which is reflected in the Administrative Law Judge's Findings of Fact is an accurate one. The critical question is, given the found facts to what occurred in the last few days of Rose Horton's employment and, specifically, what she did in reaction to the evaluation which Schwalenberg had given her, does the Commission believe Schwalenberg's assertion that his decision to terminate Horton was the result of a dissatisfaction with her reaction to the evaluation which was not infected with bias against her because of her previous opposition to discriminatory practices. Giving what it considers the appropriate weight to the ability of the Administrative Law Judge to evaluate credibility based on observation of witnesses testifying at hearing, and based as well on its own careful review of the evidence, the Commission determined that it did not believe Schwalenberg. It is persuaded by the evidence that, whether or not he was indeed angry at Horton because of her reaction to his evaluation of her, he also resented her pursuit of claims of sex discrimination against the employer and it was this resentment which led him to react to the incident concerning the evaluation by terminating Horton. The Commission arrives at this conclusion, as it believes the Administrative Law Judge did also, both by making inferences as to Schwalenberg's motivation from the found facts, and by way of direct judgment on Schwalenberg's credibility as a witness.

Respondent argues that, even if it is found that a retaliatory motivation played a part in Schwalenberg's decision to terminate Horton, there should be no finding of liability because it would have reached the same result for lawful reasons even if there had been no unlawful motivation. The Respondent argues that the "but for" test of causation articulated in cases such as Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977), "is and should be the law in Wisconsin." It is evidently the Respondent's theory that, in order to establish liability, the Complainant must show that "but for" the unlawful motivation on the part of the Respondent she would not have been terminated. The Respondent would have the Commission reject the "in part" test, under which a decision will be found unlawful if it is motivated in part by an unlawful reason, even if there are other lawful reasons which might have supported the decision. The Commission considers that the Respondent is in error both in respect to what the law is and what the law should be.

The "in part" test was first articulated in Wisconsin in Muskego-Norway Consolidated Joint School District No. 9 v. WERB, 35 Wis. 2d 540, 556-57,-151 N.W.2d 617 (1967). That case involved the termination of an employe which was found to have been in retaliation for the employe's union activities, in violation of the Municipal Employment Relations Act. The supreme court held that the termination was unlawful, notwithstanding the arguable presence of other, non-retaliatory, reasons for the action, on the theory that an employe may not be fired when one of the reasons for the firing is unlawful, no matter how many other valid reasons exist for the firing. The Commission has consistently held that the "in part" test is the appropriate one under the Wisconsin Fair Employment Act. Stanton v. Abbyland Meat Processing (LIRC, 5/30/85),  Lyckberg v. First Realty Group (LIRC, 9/25/85), Lohse v. Western Express (LIRC, 2/4/86),  Collins v. MATC (LIRC, 12/19/86),  Jones v. DyDee Wash (LIRC, 11/4/88),  Maline v. Wis. Bell (LIRC, 10/30/89).  Reviewing courts have agreed with the Commission. Appleton Electric v. DILHR (Dane County Circuit Court, November 7, 1977),  Dept. of Agriculture v. LIRC, (Dane County Circuit Court, May 25, 1978),  Pokrass v. LIRC (Waukesha County Circuit Court, August 20, 1981),  Abbyland Processing, Inc. v. LIRC, (Ct. App. Dist. III, unpublished decision, February 3, 1987).  The Commission has expressly refused to apply the "but for" test articulated in Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977), which is what Respondent is arguing for in this case. Lohse, supra. The Commission has also recently reaffirmed its commitment to following the "in part" test even in the face of Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989), in which the U.S. Supreme Court announced a new and different standard for proof of causation under Title VII. Maline, supra. (That decision of the Supreme Court has itself been effectively overturned by the Civil Rights Act of 1991, which has amended Title VII to expressly provide that an employment action is unlawful if it is shown that a prohibited factor motivated it even if other lawful factors also motivated it.) There is nothing unique about retaliation issues as opposed to conventional discrimination issues that suggests that the "in part" test should not be applied in those types of cases. Muskego-Norway was, in fact, a retaliation case, involving a claim of retaliation for the exercise of statutorily protected rights. The rationale of the supreme court in Muskego-Norway (and in Employment Relations Dept. v. WERC, 122 Wis. 2d 137, 144, 361 N.W.2d 660 (1985), in which it extended the holding of Muskego-Norway to retaliation claims arising under the State Employment Labor Relations Act and expressly rejected application of the Mt. Healthy "but for" test), is fully applicable to cases presenting issues of alleged retaliation for the exercise of rights protected under the Wisconsin Fair Employment Act.

The cases relied upon by Respondent in its brief are unpersuasive, because the factual circumstances of those cases are different from those present here. It is particularly unwarranted for Respondent to assert that the circumstances in Hochstadt v. Worcester Foundation were "similar" to those in this case. This is not a case in which it is undisputed that the employer acted because of the employe's oppositional activities and the issue is whether the oppositional activities themselves were so extreme as to remove them from the protection of anti-retaliation laws. Rather, this is a typical retaliation case in which an employer claims that the employe's oppositional activities had nothing to do with the adverse decision, and that the adverse decision was instead based on certain other conduct by the employe which the employer asserts was unsatisfactory to it. This case does not require resolution of an issue as to how far an employe may go in engaging in opposition to alleged discrimination on the part of his or her employer. All that it involves is resolution of the ultimately factual question of the employer's motivation. The Commission has here determined, in agreement with the Administrative Law Judge, that the employer's claim not to have been motivated in the decision to terminate because of the oppositional activities of the employe was not credible.

NOTE: The parties apparently agreed to some kind of bifurcation of the hearing between liability and remedy issues. The precise nature of this agreement cannot be determined, because it took place at the beginning of the first day of hearing when there was an unintended failure to record the proceedings and it is thus not transcribed. One point which is unclear is the question of when reinstatement was to be addressed. Reinstatement is conventionally thought to be a matter of remedy. However, even as they acknowledged their agreement to bifurcate the hearing, the parties argued the issue of the appropriateness of reinstatement and the ALJ addressed that issue in her memorandum opinion. The ALJ made no findings of fact, conclusions of law or orders on this issue, though, and merely indicated that reinstatement would be ordered in the final decision. The parties have addressed the issue of reinstatement in their briefs to the commission.

The Commission has decided that it will not presume to resolve the dispute over reinstatement at this point. It will not "review" an indication in an ALJ's memorandum opinion as to what she intends to do in a future proceeding. The parties, having agreed to bifurcation of issues, are entitled to a hearing on remedy and a second formal decision from the ALJ on that issue. Such a decision would, of course, be appealable to the commission.

While it will not resolve the dispute over reinstatement at this point, the commission does consider it appropriate to make certain observations pertaining thereto.

The Respondent's arguments concerning reinstatement are to some extent premised on the same theory of the facts of the case upon which it built its arguments on liability. That is, Respondent argues that the employe engaged in conduct the unacceptability of which was so patent that reinstatement is unthinkable. To the extent that this argument rests on factual claims which have been expressly or implicitly rejected in the finding on liability, it must be similarly rejected. In the remedy phase of this case, Respondent should not be allowed to relitigate the issues on which it has already lost. In the matter of liability, it has been determined that Respondent terminated Complainant at least in part because of her opposition to alleged discriminatory practices. Respondent's argument, that "it is inconceivable that reinstatement can take place" under the circumstances present here because Schwalenberg "reacted in a way that he was entitled to and terminated (Complainant's) employment" (Resp. Brief, p. 27) is untenable in view of the finding of liability. Schwalenberg terminated the Complainant at least in part because of her opposition to alleged discrimination. It therefore cannot now be claimed that he was "entitled" to do so, and it therefore cannot be argued that it is "inconceivable" that reinstatement can take place. It is conceivable; the question of whether it is appropriate is initially for the ALJ upon further hearing on the issue of remedy.

Finally, the Commission suggests that the parties and in particular the parties' counsel would do well to consider the advice implicit in the ALJ's Order, to the effect that it does not prevent the parties from making stipulations concerning or otherwise settling the issues relating to remedy. Neither party's position with respect to remedy issues is so free from doubt that the desirability of settlement can be reasonably ignored. Particularly since any resolution of remedy issues could reserve the right to further appeal on liability issues, it should be explored.




I am unable to agree with the result reached by the majority herein and I dissent.

I write because I do not believe the Complainant was terminated even in part because of retaliation against her because she engaged in protected activity. Kurth was demoted and was not involved in her firing.

The mere fact that the Respondent consulted its attorney prior to meeting with the Complainant, does not establish that the Respondent had made the decision to fire prior to the meeting. The Respondent's reasons for the discharge all relate to the Complainant's reaction to her evaluation, beginning with her abuse of sick leave to help bale hay at the farm. The Respondent went out of its way to try to reach the Complainant, but the Complainant did not respond until she showed up at work. Based on the entire incident, as well as what happened during the meeting, it is consistent for the Respondent to say the Complainant overreacted and had lost the trust of the Respondent. The Respondent had been willing to change part of the evaluation but the Complainant was unwilling to cooperate. If the Complainant had been willing to work with the Respondent at the time of the meeting, I do not believe she would have been discharged.

I do not have problems with the legal standard that the majority applied; I simply disagree that the firing was in part based on the Complainant's protected activity.

For these reasons, I dissent.

/s/ Pamela I. Anderson, Chairman

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(1)( Back ) In its formal Answer to the complaint, Respondent also asserted that Horton was discharged as a result of the fact that she "admitted on July 24, 1986 that sick leave days taken on July 17, 18 and 21, 1986 were actually used by her to bale hay on her husband's (sic) farm which violated company rules as to sick leave." Notwithstanding this assertion, it is apparent from the testimony of Schwalenberg cited above that the Respondent effectively abandoned any assertion that Horton was discharged for abuse of sick leave privileges.


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