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



ERD Case No. CR200304106

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. In the second sentence in paragraph 10 of the administrative law judge's FINDINGS OF FACT the words "the Complainant" are deleted and the words "the Complainant's daughter" are substituted therefor. Further in the same sentence the words "the Complainant's (CVID) condition" are deleted and the words "the Complainant's daughter's (CVID) condition" are substituted therefor.

2. In the third sentence in paragraph 10 of the administrative law judge's FINDINGS OF FACT the words "the Complainant's condition" are deleted and the words "the Complainant's daughter's condition" are substituted therefor.

3. In the third sentence in paragraph 12 of the administrative law judge's FINDINGS OF FACT the words "that Complainant" are deleted and the words "that the Complainant's daughter" are substituted therefor.

4. Paragraph four 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 statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12)."


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

Dated and mailed May 11, 2007
swansca . rmd : 164 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner


Constructive discharge/Retaliation

Section 103.10(11) of the Wisconsin Family and Medical Leave Act (FMLA) provides:

(a) No person may interfere with, restrain or deny the exercise of any right provided under this section.

(b) No person may discharge or in any other manner discriminate against any individual for opposing a practice prohibited under this section.

(c) Section 111.322(2m) applies to discharge or other discriminatory acts arising in connection with any proceeding under this section.

Section 103.10(12)(b) of the FMLA provides:

(b) An employee who believes his or her employer has violated sub. 11 (a) or (b) may, within 30 days after the violation occurs or the employee should reasonably have known that the violation occurred, whichever is later, file a complaint with the department alleging the violation. . .

Section 111.322(2m) of the Fair Employment Act (FEA) provides that it is an act of employment discrimination to discharge or otherwise discriminate against any individual because of any of the following:

(a) The individual files a complaint or attempts to enforce any right under . . . s. 103.10. . .

(b) The individual testifies or assists in any action or proceeding held under or to enforce any right under . . . s. 103.10 . . .

*          *          *

(d) The individual's employer believes that the individual engaged or may engage in any activity described in pars. (a) to (c).

In this case, the complainant contends that the respondent denied her a day of requested FMLA leave and harassed her for invoking her right to take FMLA leave by giving her a disciplinary write-up for wearing jeans and leaving work early. After receiving the write-up, the complainant filed an internal complaint alleging harassment. She also filed a union grievance. The complainant later retracted her internal complaint because she believed the respondent intended to remove the disciplinary write-up from her file. However, this turned out to be a misunderstanding, and the complainant therefore reinstated her complaint. During the discussion about retracting the complaint, the respondent asked the complainant to include a statement that there was no hostile or offensive environment in the agency. The complainant refused to do so. She subsequently tendered her resignation.

After submitting her resignation, but prior to the end of the employment relationship, the complainant filed an FMLA complaint, alleging that she was denied leave and that, due to her association with a disabled child, she received a written warning for dress code violations and attendance. When the respondent prepared the complainant's separation form, it gave her "below standards" ratings in four out of five areas and indicated she was not eligible for rehire. The complainant later filed a Fair Employment Act (FEA) complaint alleging that she was constructively discharged because the respondent believed she was going to file an FMLA complaint, and contending that the poor ratings on her separation form were in retaliation for her having filed an FMLA complaint. It is these latter allegations, raised in the FEA complaint, that are before the commission at this time.

The administrative law judge found that the complainant had not filed an FMLA complaint prior to her resignation and that there was no evidence to suggest the respondent either believed she had done so or planned to do so. In her petition, however, the complainant contends that she did engage in protected activity prior to resigning. The complainant advances two theories in support of this argument. First, the complainant argues that her internal complaint and union grievance should be considered protected activity. Second, she argues that the respondent requested she rewrite the retraction of her internal complaint to state that there was no hostile, discriminatory or offensive environment, and that this request was made because the respondent believed the complainant was going to engage in protected activity. Neither argument has merit.

Wisconsin Stat. § 103.10(12)(b) specifies that an employee who believes his or her employer has interfered with the exercise of her FMLA rights or discriminated against her for opposing a practice prohibited under the FMLA may file a complaint with the department. An internal complaint or grievance is not a complaint filed under the FMLA, nor can it be considered an attempt to enforce a right under the FMLA. See Pampuch v. Bally's Vic Tanny Health and Racquetball Club (LIRC, March 7, 1994). There is also nothing to suggest the respondent believed the complainant had filed or intended to file an FMLA complaint. The complainant never told the respondent that she had contacted or was planning to contact the Equal Rights Division, and it would be purely speculative to conclude that the respondent believed this was the case. Although the complainant contends that the respondent would have had no reason to request that she retract her statement that she was subjected to a hostile environment if it did not believe she was going to file an FMLA complaint, this argument ignores the respondent's testimony that it made the request because its internal rules require it to conduct an investigation where there is an allegation of a hostile work environment. Thus, the request that the complainant specifically retract the statement in question was to avoid the need to undergo an internal investigation of a complaint that was being retracted. The commission can see no reason to question this explanation nor any basis to infer that the respondent's request somehow signaled a concern that the complainant would file an FMLA complaint.

Finally, even if it could be found that the complainant engaged in protected activity under either of the two theories presented in her brief, the fact remains that there is nothing in the record to support a finding that she was harassed as a result, let alone that she was subjected to harassment so severe as to render her quitting a constructive discharge. (1)  The only specific instance of harassment referenced by the complainant is the disciplinary write-up she received for wearing jeans to work and leaving early. However, this write-up was issued prior to her internal grievance and prior to the events which the complainant contends put the respondent on notice of her intention to file a complaint. The complainant has not identified any harassing conduct that occurred after she engaged in the alleged statutorily protected activity, other than to generally state that there was "blatant hostility" and an "offensive environment" within the agency. In her brief to the commission the complainant also makes reference to a "barrage of complaints" against her by the respondent and asserts that the respondent made a concerted effort to get rid of her. However, absent any specific description of the conduct which the complainant alleges was so severe as to leave her with no reasonable choice but to quit, nor any citation to portions of the record containing evidence in support of her assertions, the commission can see no possible basis for finding a constructive discharge.


The administrative law judge resolved in the complainant's favor the question of whether the poor marks on her separation form were the result of unlawful retaliation, a finding which neither party has challenged on appeal. Such finding entitles the complainant to a cease and desist order and reasonable costs and attorney fees. There is no entitlement to back pay, because the complainant had already resigned prior to the retaliatory conduct, and lost no wages or benefits as a result of the respondent's conduct.

Subsequent to the hearing on the merits the complainant filed a motion for a continued hearing on damages, at which she could present evidence establishing that the respondent "publicized" the negative separation report and that this cost her other employment. The administrative law judge rejected this request, reasoning that what the complainant wanted to argue was a separate claim occurring subsequent to the facts at issue here, rather than merely a question of damages. The commission agrees with the administrative law judge's ruling. While the retaliatory use of a negative evaluation to affect a former employee's job opportunities can form the basis of a discrimination complaint, see, for example, Greffin v. Wisconsin Power and Light (LIRC, Dec. 18, 1996); Pufahl v. Niebuhr (LIRC, Aug. 16, 1991), aff'd. sub nom. Pufahl v. LIRC (Dane Co. Cir. Ct., 06/16/92); Seeman v. Universal Foods Corp. (LIRC, Sept. 22, 1994), such allegation cannot be piggybacked onto a separate complaint merely by characterizing it as evidence going to "damages."

The commission also notes that at the hearing the complainant contended she started other employment on September 26, 2003, prior to the respondent's having prepared the retaliatory separation form. The complainant has never actually asserted that the respondent "publicized" the form to prospective employers, claiming only that she wants an opportunity to present evidence on this point. Consequently, there is no basis to conclude that the administrative law judge's refusal to grant further hearing on the issue of damages, even if found to be in error, resulted in any prejudice to the complainant.

Attorney Fees

Finally, the complainant contends that the fee reduction ordered by the administrative law judge is in error. The complainant requested reimbursement in the amount of $27,334.63 for attorney fees and costs incurred in conjunction with this matter, representing a total of about 104.5 hours of work by two attorneys, Teresa O'Halloran and Carol Dittmar, at hourly rates of $135/$145 and $200/$250 respectively. The administrative law judge reduced the hourly rate for Carol Dittmar from $250 to $200 an hour, reduced the number of hours reasonably expended by seventy percent, and awarded a total of $7,154.89 in combined attorney fees and costs.

In her petition for review the complainant does not specifically challenge the administrative law judge's decision to reduce her attorney's hourly rate to $200, except to note in passing that Ms. Dittmar has been awarded compensation at the higher rate in other cases. Instead, the complainant focuses on the decision to reduce the award to account for partial success. The complainant argues that she is entitled to the entire amount requested, less only $1,072 to reflect the three and a half pages of her post-hearing brief which were devoted exclusively to the issues of interference with the exercise of her FMLA rights and constructive discharge. The commission disagrees, and finds the administrative law judge's attorney fee award to be reasonable and appropriate.

Where the complainant did not prevail on the most significant aspect of her claim, she has failed to achieve "significant success" in the case and should not receive fully compensatory attorney fees. Foust v. City of Oshkosh Police Department (LIRC, April 9, 1998). Here, the complainant prevailed on only a single issue, a limited victory which did not entitle her to back pay, reinstatement or any type of substantive relief. The complainant did not prevail on the most significant issue raised, her claim of constructive discharge. Further, because the complainant's attorney fee request includes time spent litigating a separate complaint, ERD Case No. C200303498, on which the complainant also did not prevail, the degree of success achieved in relation to the amount of hours billed must be deemed a limited one.

The complainant contends, however, that the commission should consider how the case would have been litigated and how much time would have been spent if she had set out to prove only the allegation upon which she prevailed. The complainant maintains that she could not have proved retaliation without establishing that she exercised her rights under the FMLA, that she protested the manner in which the respondent handled her exercise of those rights, and without establishing the quality of her work performance. The commission does not find this argument helpful to the complainant's case. Had the complainant only set out to prove retaliation with respect to the separation report, her task would have been a fairly simple one. The complainant could have satisfied her burden of proof by presenting a copy of the job evaluation from July of 2003, showing that she met standards in every area, a copy of her FMLA complaint filed in September of 2003, and a copy of the separation report prepared in the same month, by the same individual who evaluated her in July, showing that she no longer met standards in most areas. These documents, along with testimony indicating that the complainant's job performance was consistent and that she was not notified by the respondent that it felt the quality of her work was declining during the three months preceding her resignation, would have been sufficient to support a finding of retaliation. Given the circumstances, limiting her award to thirty percent of the attorney fees requested does not seem at all unreasonable.


NOTE: The commission has modified the administrative law judge's findings to more clearly reflect the fact that it is the complainant's daughter, rather than the complainant herself, who suffers from a serious health condition.


Attorney Carol S. Dittmar
Attorney Michele M. Ford

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(1)( Back ) To establish a constructive discharge the complainant would have to present evidence demonstrating that the working conditions were so difficult or unpleasant that a reasonable person would have felt compelled to resign. Cole v. Northland College (LIRC, March 19, 2001).


uploaded 2007/05/15