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

THERESA M. GARNER, Complainant


ERD Case No. CR200400867, EEOC Case No. 260A401856

Complainant, Theresa M. Garner, filed the complaint in this matter on February 11, 2004, naming University of Wisconsin - Milwaukee as respondent and alleging that respondent had violated the Wisconsin Fair Employment Act in various respects described therein. An investigation by the Equal Rights Division of the Department of Workforce Development resulted in an Initial Determination, issued on February 4, 2005, concluding that there was no probable cause to believe that respondents violated the Act as alleged in the complaint. Garner filed a timely appeal of this Initial Determination.

Subsequently, the respondents filed a motion to dismiss the complaint on the grounds that it failed to state a claim under the Act. An administrative law judge (ALJ) for the Equal Rights Division issued a decision on June 8, 2005, dismissing the complaint on that basis. The complainant filed a timely petition for review. (1)


The decision of the ALJ to dismiss the complaint in this matter (ERD Case No. 200400867) for failure to state a claim under the Wisconsin Fair Employment Act, is affirmed. The complaint in this matter is dismissed with prejudice.

Dated and mailed February 10, 2006
garneth0867 . rrr : 110 :

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


Background -- Theresa Garner began working for University of Wisconsin - Milwaukee in February, 2003. Her employment there ended in June, 2003. Thereafter, Garner filed a number of complaints against UW-Milwaukee alleging various forms of discrimination. The present case arises out of a complaint which Garner filed against UW-Milwaukee in February, 2004. That complaint focused on events occurring subsequent to the end of Garner's employment with UW-Milwaukee and had to do with continued contacts between Garner and UW-Milwaukee.

The ALJ dismissed the complaint, without a hearing, based on the theory that the complaint did not state a claim for relief under the Fair Employment Act. Garner petitioned for review of this decision by the commission.

A complaint may be dismissed prior to hearing on a motion to dismiss for failure to state a claim upon which relief may be granted if it appears that even if what is claimed by the complainant is assumed for purposes of analysis to be true, a decision in favor of the respondent would nevertheless be required as a matter of law. See, e.g., Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

A threshold question in such cases is what should be looked to in order to determine "what is claimed by the complainant" for purposes of making such an analysis. This question takes on greater importance in situations such as this one, in which a large volume of material bearing on the parties' allegations has been filed subsequent to the complaint.

The commission has long adhered to the approach that a decision on whether a complaint states a claim under the Act should be based on looking to what the complaint alleges and to "any other assertions of the complainant which provide an indication of the nature of the claim". See, Alvey v. Briggs & Stratton (LIRC, 11/27/91). (2)   In doing this, the commission has not looked strictly and exclusively at the language of the complaint, nor has it routinely considered absolutely everything which the complainant has managed to get into the file. Instead, it has taken an approach in which the complaint is the starting point, and in which additional assertions made by the complainant may then be looked at to the extent necessary to provide details concerning claims already alleged in the complaint, all with the goal of getting a fair idea of what the complainant contends he or she will prove in order to support the allegations made in the complaint. See, e.g., Lau v. Latec Credit Union (LIRC, February 7, 2003); Newton v. St. Gregory Education & Christian Formation Committee (LIRC, December 10, 1997); Dunn v. City of Burlington Engineering Department (LIRC, July 28, 1995); Olson v. Lilly Research Laboratories (LIRC, June 25, 1992).

With this in mind, the commission first considers the allegations of the complaint, and then turns to other assertions of the complainant which provide more detail about the claim where this is necessary to understanding what the claim stated in the complaint involves or extends to.  

The complaint -- The complaint in this matter (ERD Case No. 200400867), filed in February, 2004, named University of Wisconsin - Milwaukee as respondent, and it alleged in material part as follows:

I.  I began my employment with the Respondent on February 19, 2003. I left my employment with the Respondent on June 6, 2003. I filed EEOC charge 260-2003-03387C on November 18, 2003 alleging retaliation for opposing an illegal employment practice.

On December 24, 2003, I filed a criminal complaint with the Respondent's campus police department regarding my belief that employees had illegally used my name and password in June 2003 to send out unauthorized emails.

I later learned that the campus police department, claiming an investigation was done, forwarded my documentation to the Respondent's legal department. I am not sure how an investigation was performed properly without my evidence being supplied to UWM police.

It is my belief that the campus police did not follow their own policies for investigating a criminal complaint, and that the Respondent's legal department mislead them into believing that I was making a records request, and thus my paperwork needed to be forwarded to them.

II.  The campus police department has not advised me as to why they handed my criminal complaint to the Respondent. In letters dated January 7, 2004 and January 13, 2004, Joely Urdan, University Legal Counsel advised me that she had my documents in her possession and that I should come to pick them up, and also stated that I must go through the Respondent's Office of Legal Affairs if I need any documentation.

III.  I believe the above-mentioned actions by the Respondent are in retaliation for my previous charge filing and also my race (black), in violation of Title VII (including sec. 704a) of the Civil Rights Act of 1964, as amended.

This complaint is specific as to what the respondent is alleged to have done wrong, who did it, and when. It alleges actions by UW-Milwaukee's Police Department, and its Office of Legal Counsel, in December 2003 - January 2004. The actions alleged were, in the case of the Police Department, a matter of failing to perform a proper investigation of a criminal complaint which Garner had filed with that Department, and, in the case of the Office of Legal Counsel, a matter of misleading the Police Department about what it should do in terms of investigating Garner's criminal complaint, and a matter of requiring Garner to deal with that office (rather than the Police Department) in connection with documents Garner had submitted to the police in support of her complaint. While the roles and actions alleged are thus somewhat different as to the Police Department and the Office of Legal Counsel, they are both concerned with the same basic wrong which Garner alleges was done to her, which is that a criminal complaint she filed with the Police Department was not properly investigated or was thwarted. 

Other assertions by complainant about what she will try to prove -- The extensive material submitted by Garner provides more assertions about the criminal complaint she filed with the UW-Milwaukee Police, how it was handled by them, and how the UW-Milwaukee Legal Office got involved in the Police Department's handling of that complaint. However, these details do not suggest anything other than what is suggested by the complaint itself about the nature of this particular claim; on the contrary, they serve only to reinforce those suggestions. This claim is about Garner having been deprived of a full and proper investigation of a criminal complaint she filed with a police agency about what she believed to have been possible criminal activity by employees of UW-Milwaukee in connection with unauthorized use of computer passwords and e-mail accounts.  

Discussion -- The important question in this case, as to whether or not the complaint in this matter states a claim under the Wisconsin Fair Employment Act, has to do with whether the things the respondent is alleged to have done because of a prohibited motivation are sufficiently related to employment that the alleged wrongs could be considered employment discrimination. A number of commission decisions issued over the past 15 years have addressed this issue.

In Pufahl v. Niebuhr (LIRC, August 16, 1991), the action allegedly taken for an unlawful reason (retaliation) was the respondent's action in contacting a city recreation department to report that the complainant was not a resident of the city on whose softball leagues she was participating. The administrative law judge had opined, in dismissing the complaint, that it was not covered under the WFEA because the respondent's action was not directly related to the complainant's employment. Although the commission affirmed the result arrived at by the administrative law judge in Pufahl, it expressed a different view about the general question which the case illustrated. The commission rejected the notion that an adverse action had to be "directly" related an individual's employment, and it instead expressed the broader view that an adverse action could in some circumstances be subject to the anti-retaliation provisions of the Act even though its relationship to an employment opportunity was only indirect. Looking to federal court decisions issued under the parallel anti-retaliation provisions of Title VII, the commission initially cited as an example of an "indirect" effect on an employment opportunity, the giving of a bad reference to an ex-employee, which although it does not affect the employment relationship which had existed between employer and employee can tend to impair the employee's opportunities for future employment with other employers and thus bears a relationship to employment in general. The commission also cited as potential examples, such things as filing a lawsuit in tort seeking damages for defamation or malicious prosecution, or threatening criminal charges for allegedly making threatening phone calls to the employer. It noted that while such things might not directly implicate any employment opportunity, there could be an indirect effect upon future employment opportunities, in that, like giving a poor recommendation, action by a former employer to sue or criminally prosecute a former employee could effectively destroy that former employee's chances of future employment. The outcome in the particular case at hand was affirmed because the action alleged in that case -- contacting the city recreation department to report that Complainant was not a resident of the city on whose softball leagues she was participating -- simply bore no conceivable relationship whatsoever to any employment opportunity, past, present or future.

In Seeman v. Universal Foods Corp. (LIRC, 09/22/94), the action allegedly taken for an unlawful reason (retaliation) was the respondent's filing of an administrative complaint with the WERC claiming that the complainant was committing an unfair labor practice under the Wisconsin Employment Peace Act. (The complainant had previously filed a complaint of disability discrimination, the arbitrator in a grievance arising out of related facts had ruled against him, and it was the employer's theory that by continuing to pursue the disability discrimination complaint the complainant was refusing to abide by a final arbitration award). In its decision in that case, the commission concluded that the action was not sufficiently related to employment or an employment opportunity to constitute an illegal action under the WFEA. The commission distinguished the administrative unfair labor practice charge involved in that case from such things as poor recommendations which could effectively destroy a former employee's chances of future employment, defamation claims which were in effect an attack on the employee's truthfulness, or action causing the person to be arrested and prosecuted for criminal trespass. The commission indicated that what was important was whether the action caused potential harm that would affect the complainants' employment opportunities. Reasoning that the WERC complaint neither challenged the complainant's integrity as a human being nor had any negative implication with respect to his workplace activities, the commission concluded that the respondent's action neither did nor would impair his reputation or future employment opportunities, so that the action was not one subject to the Act.

In Stillwell v. City of Kenosha (LIRC, September 29, 1995), the action allegedly taken for an unlawful reason (retaliation) was respondent's commencement of a legal action against the complainant in which the respondent sought a court order for specific performance of what the respondent alleged was an agreement between it and the complainant to settle a discrimination complaint. The commission distinguished an action to enforce a settlement agreement from cases involving actions in tort alleging malicious prosecution or slander, in which the potential for an award of damages against the employee was presented.

In Peck v. Walworth County and William Weiland (LIRC, September 27, 1996), the action allegedly taken for an unlawful reason (retaliation) was the release by the complainant's former employer of the terms of a settlement agreement between the parties that the complainant asserted was to have been kept confidential. The commission concluded that the complaint did not state a claim under the WFEA, because no allegation had been made that the respondent's release of confidential settlement information had even an indirect relationship to the complainant's employment. The commission noted that the reason the complainant said she wanted the terms of the settlement to stay confidential were to avoid disclosure to members of her family who are employed by the respondent and who would be displeased with the terms. Also, the information to have been released was not information calling into question the complainant's character or work habits. Thus, the commission reasoned, the potential harm complained of was not sufficiently related to employment opportunities.

In Riley v. Van Galder Bus Co. (LIRC, May 24, 1999), the complainant alleged that a former employer was harassing her by asking the complainant's friends questions about personal topics, such as where the complainant worked and what her vacation plans were. The commission reasoned that there was no allegation that these actions had an adverse effect upon the complainant's employment opportunities. The commission was, it stated, "unpersuaded that there is any significant connection between those actions and an employment relationship or that the respondent's actions impaired the complainant's future employment opportunities."

Based on the principles reflected by these decisions, the commission concludes that the complaint in this matter does not state a claim under the Fair Employment Act.

The wrong which the complaint in this matter alleges -- mishandling by a police department of a criminal complaint filed with that department -- has no significant connection to any employment relationship or employment opportunity of Garner. The "gist of the complainant's complaint", see, Dunn v. City of Burlington, supra, did not have to do with any employment relationship or opportunity, but was precisely that the UW-Milwaukee Police Department did not properly handle or investigate Garner's criminal complaint. This had nothing to do with employment; but instead related to a service (police protection) provided by UW-Milwaukee to the public at large. There is no reasonable basis to believe that failure by the UW-Milwaukee Police Department to properly investigate Garner's complaint about alleged criminal conduct by someone else, would have any significant connection to an employment relationship or that it would impair Garner's future employment opportunities.

For the foregoing reasons, the commission has affirmed the decision of the administrative law judge insofar as it dismissed the complaint in this matter (ERD Case No. 200400867).

cc: Joely Urdan, Attorney for Respondent

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(1)( Back ) The complainant also filed a second complaint, naming both University of Wisconsin - Milwaukee and the University of Wisconsin - Milwaukee Police Department as respondents, in October, 2004 (ERD Case No. 200403960). The respondent's motion to dismiss extended to both complaints, and the ALJ issued a single decision which dismissed both. The commission is addressing the two complaints in separate decisions because the different outcomes arrived at result in different procedural postures with respect to right to appeal.

(2)( Back ) In evaluating the legal sufficiency of a complainant's claim, assertions about the facts made by the respondent in an effort to establish that the claim is not cognizable under the Act, are not to be considered. Alvey; Olson v. Lilly Research Laboratories (LIRC, June 25, 1992). This is because in a process in which a complainant's assertions are assumed to be factually true for purpose of analyzing the legal viability of the complainant's claim, contrary factual assertions by the respondent are simply not relevant.


uploaded 2006/02/13