Wis.LIRC ER Decision: Greffin - December 18, 1996 - - Retaliation - discrimination because of opposition to discrimination or filing complaint; former employer (against whom complaint filed) allegedly affecting a subsequent employer's hiring decision

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

RICHARD A. GREFFIN, Complainant

WISCONSIN POWER AND LIGHT, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 199602150, EEOC Case No. 26G961354

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development (Department of Industry, Labor and Human Relations prior to July 1, 1996) 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.

DECISION

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

Dated and mailed: December 18, 1996
greffri.rsd : 110 :

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

David B. Falstad, Commissioner

MEMORANDUM OPINION

The complainant, Richard A. Greffin, previously worked for Wisconsin Power and Light ("WP&L"). He was terminated from that job, and he filed an age discrimination complaint against WP&L with the Equal Rights Division in late 1995. (1 )

In April, 1996, Greffin applied for a job with the Wisconsin Department of Tourism ("Department"). In connection with his application for that job, Greffin was given an interview by a panel consisting of three persons, one of whom was an employe of WP&L, Van Fossen, an Account Manager in Corporate Communications. (2 ) Shortly after this interview, Greffin was advised by the Department that he was no longer being considered as a candidate for the position with the Department.

The following chart illustrates the relationships between the parties involved in this case:

             Dept.of Tourism      Van Fossen's 
               ("Dept.")          Employer(WP&L):
                   |               /
             (interview panel)    /
            _______|_____________/
           |       |            |
        (Dept.   (Dept.    Van Fossen 
        employe) employe) 

                 Greffin 
        (applicant for Dept. job)

Greffin asserts that Van Fossen played a part in the Department's decision to eliminate him from consideration for hire with the Department, and that his motivation in doing so was to retaliate against Greffin for his having filed a discrimination complaint against WP&L. On this basis, he filed a complaint against WP&L, alleging unlawful retaliation in violation of the Wisconsin Fair Employment Act.

The Administrative Law Judge dismissed the complaint against WP&L with prejudice, on the theory that because the Department rather than WP&L made the decision to eliminate Greffin from consideration for the job with the Department, Greffin's remedy was to file a complaint against the Department with the Personnel Commission, which pursuant to sec. 111.375(2), Stats. has jurisdiction over complaints of discrimination against state agencies. Van Fossen, the ALJ decided, was not acting within the scope of his employment at WP&L when he performed services as part of the interview panel for the Department. She concluded that WP&L was therefore not a proper respondent.

Greffin argues that prior decisions of the commission support the theory that a person's former employer may be held accountable for actions (such as the giving of negative employment references) which have an adverse impact on employment opportunities with other employers, when the former employer's actions are motivated by some prohibited consideration, such as a desire to retaliate against the employe for having filed a discrimination complaint. Greffin also asserts that Van Fossen was acting within the scope of his employment at WP&L when he served on the interview panel, pointing to the fact that his participation on the panel was known to and authorized by WP&L.

It is true that commission decisions have accepted, as a general matter, the proposition that a complainant's former employer may be held accountable for retaliatory actions which have an adverse impact on complainant's employment opportunities with other employers. See, Pufahl v. Niebuhr (LIRC, 08/16/91), aff'd. sub nom. Pufahl v. LIRC (Dane Co. Cir. Ct., 06/16/92); Seeman v. Universal Foods Corp. (LIRC, 09/22/94). This does not mean, however, that in every case in which a former employer has any involvement, there must necessarily be some way to bring that former employer within the jurisdiction of the ERD. The situation here is sufficiently different from that contemplated by the decisions just cited, that a different conclusion is appropriate.

Specifically, this is not a case in which a former employer gave an unsatisfactory reference or other type of information to another employer. In a typical case in which a person's former employer gives a bad reference to another entity which is considering hiring a person, the reference is given by an individual agent of that former employer, speaking for and on behalf of that former employer. Also typically, it is contemplated by all of the parties concerned that the reference is supposed to be based on the former employer's knowledge of the person by virtue of their employment there and is supposed to be directly related to that former employment. In this case, however, Van Fossen's connection with WP&L was coincidental to the role he played for Department of Tourism. (3 ) It is not alleged that he purported to act or speak for or on behalf of WP&L, or that the Department expected him to, or understood that he would. Far from acting as an agent for WP&L in providing a reference, Van Fossen was acting as an agent for the Department of Tourism in making a decision on behalf of the Department concerning employment with the Department. It arranged for him to be on the interview team with the specific purpose that he perform certain services and with the understanding that it would rely on and (to some extent) be bound by his actions.

Thus, even accepting for purposes of discussion the truth of the factual allegations made by Greffin, it remains the case that as a matter of law the Equal Rights Division (and the commission) should not be handling this case because it involves an action by a person acting as an agent of a state agency in respect to employment with a state agency. Such issues are under the jurisdiction of the Personnel Commission. Dismissal of the complaint was therefore appropriate.

cc:
Paul F. X. Schwartz, Attorney for Complainant
Mari E. Nahn, Attorney for Respondent

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Footnotes:

(1)( Back ) Because the Administrative Law Judge dismissed the complaint without hearing, there is no formal record to serve as the basis for making findings of fact. The facts of the case as described in this Memorandum Opinion are as alleged in the complaint and in documents filed by complainant's counsel. See, Tucker v. Rock County (LIRC, 07/02/92), Olson v. Lilly Research Laboratories (LIRC, 06/25/92).

(2)( Back ) It was asserted in a letter to the ERD from WP&L, and not disputed by Greffin, that this occurred pursuant to a regular practice of the State of Wisconsin to use three-member interview panels in which one member is not an employe of the State.

(3)( Back ) Greffin does not allege, that the WP&L or the Department of Tourism arranged to have Van Fossen made a part of the interview team after it found out that Greffin had applied, in order to obtain Van Fossen's specific knowledge about Greffin's employment at WP&L.