JOSEPH E SABOL, Complainant

STATE OF WISCONSIN, Respondents

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. Paragraphs 3 through 5 of the administrative law judge's FINDINGS OF FACT are deleted and the following paragraph is substituted therefor:

     "3. The complainant applied for all four positions."

2. The remaining paragraphs of the administrative law judge's FINDINGS OF FACT are renumbered accordingly.

3. The second and third paragraphs in the administrative law judge's MEMORANDUM OPINION are deleted.

4. The last sentence of the administrative law judge's MEMORANDUM OPINION is deleted.

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

Dated and mailed April 24, 2014
saboljo_rmd . doc : 164 : 5   133.22

BY THE COMMISSION:

/s/ Laurie R. McCallum, Chairperson

/s/ C. William Jordahl, Commissioner

/s/ David B. Falstad, Commissioner

This case presents the question of whether the respondent's decision not to hire the complainant for any of four teaching positions was motivated by a desire to retaliate against the complainant for having filed previous complaints. To establish a case of retaliation the complainant must initially prove that (1) he engaged in statutorily protected fair employment activity, (2) the respondent took an adverse action against him, and (3) a causal connection exists between the protected activity and the adverse action. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989). In addition, it is an essential element of a retaliation case that an employer be shown to have been aware of the protected activity the employee engaged in. See, Hanson v. State of Wisconsin, ERD Case Nos. 200303172 and 200303173 (LIRC June 14, 2005), and cases cited therein. Here, the respondent denied having any awareness of the complainant's protected activity, and the parties agreed prior to the hearing to limit their evidence to evidence addressing the question of whether the screening committee was aware of the complainant's protected conduct. It was further agreed that, if the complainant established that the members of the committee knew about the protected activity, additional hearing would be held on the question of whether there was a connection between that knowledge and the respondent's refusal to hire the complainant.

At the hearing the complainant presented testimony from all of the members of the screening committee, none of whom indicated that they were aware the complainant had filed previous discrimination complaints. The complainant introduced no evidence to suggest otherwise, and his speculation that his "name is out there" and that information about him could be found is insufficient to warrant a conclusion to the contrary. While at the hearing, and again in his petition for review, the complainant makes the argument that the fact that his application was not advanced to the interview stage indicates the respondent must have known about his protected status, such knowledge cannot be inferred from the mere failure to grant an interview. Rather, the complainant must affirmatively show that the respondent was aware or had reason to be aware that he had engaged in protected conduct. The complainant has made no such showing.

Given that the hearing was confined to the question of whether the respondent was aware of the complainant's protected conduct, the commission has modified the administrative law judge's decision to eliminate the findings and discussion that address the respondent's reasons for its decision not to hire the complainant and other matters extraneous to the question at hand. These modifications notwithstanding, the administrative law judge's decision is affirmed.

cc: Attorney Christopher Ashley

Aff'd.  Sabol v. LIRC (Racine County Cir. Ct., 06/12/15).

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