MYLES NOTARO, Complainant

KOTECKI & RADTKE, S. C., Respondent

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 March 24, 1992. Complainant filed a timely petition for review by the commission and both parties submitted written arguments.

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

The decision of the administrative law judge (copy attached) is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed July 14, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The issue in this case was whether respondent unlawfully retaliated against complainant. The statutory prohibition which is usually described by the shorthand term "retaliation," is found in sec. 111.322(3), Stats., and provides that it is an act of employment discrimination

"to discharge or discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter."

This provision is virtually identical to the parallel anti-retaliation provision in Title VII.

It has been recognized that this kind of anti-retaliation language has two separate parts, an "opposition" element ("...opposed any discriminatory practice under this subchapter ..."), and a "participation" element ("...made a complaint, testified or assisted in any proceeding under this subchapter"). The "opposition" clause covers actions taken by an employe on their own to protest discrimination. The "participation" clause relates directly and exclusively to the filing of charges with the agency or to assisting or participating in the investigation of a filed complaint. (1)

To establish unlawful retaliation for opposition, an employe must initially prove (1) that he or she engaged in statutorily protected opposition, (2) that the employer took an adverse action against the employe, and (3) that a causal connection exists between these two things. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989). At least for purposes of making out a prima facie case, the "causal connection" element can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Frierson v. ASHEA Industrial Systems (LIRC, April 6, 1990). It has also become well established that proof of unlawful retaliation for opposition must include proof that the employer actually had the perception that the conduct engaged in by the employe (which is claimed to have caused the retaliation) was an attempt by the employe to oppose alleged discrimination. Cangelosi v. Larson & Associates (LIRC, November 9, 1990). Notaro met all these proof requirements here. The protected opposition activity he engaged in is reflected in the record evidence of a number of statements (some written, some oral) he made to respondent in which he directly stated that he believed that age, sex, and handicap discrimination was occurring. See, e.g., Complainant's Exhibit 5, 9, Transcript, pp. 53-55. Respondent subsequently terminated Notaro, within a relatively short period of time. Finally, there can be little doubt that respondent perceived Notaro's opposition to concern alleged employment discrimination, since (as noted) Notaro made this point expressly.

There is another issue that arises in some opposition cases, however, as a result of the fact that the opposition is required to be directed to "any discriminatory practice under this subchapter." It was recognized that under this language (and the parallel language in Title VII), an argument could be made that if the underlying employer conduct opposed by the employe was not shown to have actually been discriminatory as a matter of fact and law, the employe could be found to not have been opposing "a discriminatory practice under this subchapter" (emphasis added). The almost universal response of courts addressing this argument has been that it is not necessary for the employe to have been objectively "right" about a belief that an action opposed was prohibited discrimination, as long as some test of reasonableness and good faith is met. See, Larson, Employment Discrimination, Vol. 3, § 87.12(b), p. 17-94 et seq. This has long been the rule applied to opposition cases under the WFEA. Herslof Optical v. DILHR (Dane County Circuit Court, May 28, 1978), Keller and Keller v. City of Brodhead (LIRC, April 29, 1987).

The question of Notaro's subjective beliefs about his claims of discrimination are important here because all of the underlying allegations of discrimination which Notaro's opposition to involved, were rejected by the investigator, and Notaro did not appeal those no probable cause determinations. In legal contemplation, it has therefore been finally determined that respondent's practices which Notaro opposed were not discriminatory practices under the WFEA. The question is therefore whether Notaro believed, albeit mistakenly, that he was being discriminated against. In this case, the ALJ expressly found that Notaro did not have a reasonable good faith belief that he was being discriminated against when he engaged in his opposition. Rather, the ALJ concluded that Notaro made his allegations of discrimination without believing in them, merely in order to put pressure on respondent to settle a purely contractual dispute (the matter of the insurance) and to set up a potential retaliation claim later if any adverse action was taken against him.

Based on its review of the record, the commission fully agrees with the ALJ's assessment of Notaro's subjective beliefs as to the validity and reasonableness of his claims of discrimination. It arrives at this assessment not only because of its acceptance of the ALJ's reading of Notaro's credibility as a witness, but also based on its own review of the record.

Among the factors considered by the commission were the fact that Notaro testified inconsistently on a point that was material to the question of whether he had ever really believed he was being discriminated against in denial of insurance. At one point, Notaro directly asserted that Kotecki "admitted" that the law firm "provided" her health insurance (TR I, pp. 95-96). However, he subsequently conceded that "she never said that Kotecki and Radtke, S.C. paid for her health insurance, she simply stated that she had health insurance" (TR I, p. 122), and that he "assumed" it was paid for by the employer. What is important here is that Notaro had earlier been willing to swear under oath that someone "admitted" something, when in fact it was only something he assumed. This shows a penchant for exaggerating and embroidering the truth, as well as a disregard for the significance of the testimonial oath, which in turn justifies doubt as to his other testimony--such as his claims that he genuinely believed that he was being discriminated against.

The commission was also inclined to doubt the good faith of Notaro's claim that he had been discriminated against, because of an unfortunate incident that occurred at hearing. The incident began while Notaro was under cross-examination and was caught in a contradiction of his earlier testimony on the number and identity of female employes, this being highly material to Notaro's claim of sex discrimination in provision of insurance. Notaro erupted, obscenely challenging Attorney Radtke, and he walked out of the hearing room (TR I, p. 137). It is undisputed that during the interruption of the hearing which followed, Notaro reentered the hearing room, then occupied only by Attorney Radtke, and confronted him angrily. Even if only Notaro's testimony about the incident is looked to, it must be found that he engaged in an unprovoked and unwarranted verbal attack on Radtke, calling him a "filthy slime" and making a serious allegation of personal impropriety against him. If Radtke's testimony is credited as a more credible version of the incident -- and the commission is inclined to so credit it -- the matter was a much more serious one of Notaro both threatening physical violence towards Radtke and his wife, and threatening to communicate allegations of personal impropriety on the part of Radtke to his wife and children. This conduct by Notaro, which involves ill will and threats towards Radtke, tends in the commission's view to support a conclusion that the complaints of discrimination Notaro made earlier towards Radtke had also not been made in good faith.

The commission wishes to note that this conclusion, that "opposition" was not protected because it was not engaged in in a good faith belief that discrimination had occurred, is an unusual result in a retaliation case. The commission is not finding these claims of discrimination to have been insincere merely because they turned out to lack merit. The purpose of the anti-retaliation provision, which is to insure that persons who may have been discriminated against are not deterred from seeking justice, requires that protection be provided to those whose good faith suspicions ultimately prove unfounded. This, however, is an egregious case of bad faith, of a kind seen only rarely.

Retaliation for "participation" is also a potential issue here because prior to the time that he was fired, Notaro had filed a discrimination complaint with the ERD and had told respondent that he had done so. Respondent argued that the fact that it had not been formally served with a copy of the complaint by the ERD and that Notaro had refused to provide it with a copy of the complaint, somehow takes the situation out of the range of the "participation" clause. However, it has been held that the mere threat to file a charge is protected under the "participation" clause of Title VII Is retaliation provision. Gifford v. Atchison, Topeka and Santa Fe Railroad, 29 FEP 1345, 1349 (9th Cir. 1982). In Jeffries v. Harris County Assn., 615 F.2d 1025, 22 FEP 974 (5th Cir. 1980), the court held that the participation clause applied where, before the plaintiff's discharge, the employer had been informally told by the plaintiff that a charge had been filed but had not been formally notified of or served with the charge by the EEOC. The facts here are the same. There is no dispute that Notaro actually did file a charge with the ERD on September 27, 1989, more than a week prior to his discharge, and that he informed respondent of the filing of this charge on the same day (Complainant's Exhibits 10-13). Therefore the commission concludes that there is a "participation" issue here.

The importance of this lies in the fact that, at least under federal law interpretations of Title VII, protection of participation is quite broad. In contrast to the law that has arisen under the opposition clause, the law under the participation clause in Title VII is that to make out a case it is not necessary for the person involved to prove even a reasonable good faith belief in the validity of the charges. Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1 FEP 752 (5th Cir. 1969). The coverage of the participation clause is "exceptionally broad" and extends even to those who have filed false and malicious charges. Pettway, at 1 FEP 757.

While Notaro still argues that his objections to the termination of insurance payments were in effect protected opposition, that in any event he engaged in more expressly protected opposition later, and that his opposition was in fact reasonable and in good faith, his principal argument to the commission rests on this absolute privilege extended to participation, in conjunction with the findings of fact made by the ALJ that in connection with the termination decision, the respondent considered Notaro's statements indicating that he had filed a complaint under the Act. The exact wording of the finding of fact is:

"The primary reason that respondent terminated complainant's employment was his objection to terminating his health insurance. Secondarily, respondent also considered: complainant's excessive absences, his unsatisfactory production, his statements purporting to oppose discriminatory practices, and his statements indicating that he had filed a complaint under the Act."

Notaro argues that this presents a "mixed motive" situation in which the discharge was "in part" caused by respondent's consideration of his protected participation. Notaro's arguments about the "in part" issue are not entirely correct. He asserts that the commission has indicated "time and time again" that it will apply the "in part" test followed in Muskego-Norway C.S.J.S.D. No. 9 v. W.E.R.C., 35 Wis. 2d 540 (1967). However, the commission has recently questioned the application of this rule. In both Hoell v. Narada Productions, Inc. (LIRC, December 18, 1992) and Gee v. ASAA Technology (LIRC, January 15, 1993), the commission noted that while the Muskego-Norway "in part" test had been applied in cases arising under the Municipal and State Labor Relations Acts, the Wisconsin Supreme Court had specifically declined to rule on the question of whether that test should be applied in cases under the WFEA, in Federated Electric v. Kessler, 131 Wis. 2d 189, 388 N.W.2d 553 (1986). Thus, the question is at best an open one. It should be noted that one court of appeals has, in dicta, also questioned the applicability of the Muskego-Norway approach in mixed motive cases to cases under the WFEA. Racine Unified School District v. LIRC, 164 Wis. 2d 567, 597, 476 N.W.2d 708 (Ct. App. 1991) .

The commission concludes that, whatever its applicability in general, the "in part" test is not germane here because "participation" was not even a determining factor in the decision. In Wisconsin, the courts have adopted the "determining factor" standard under which, to prove discrimination in the first place a complainant must prove that a protected characteristic was a "determining factor" in the decision. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 172-73, 376 N.W.2d 372 (Ct. App. 1985), Kovalic v. DEC International, Inc., 161 Wis. 2d 863, 874, 469 N.W.2d 224 (Ct. App. 1991). A "determining factor" is more than "a factor." Puetz, 126 Wis. 2d at 172. This rule has been specifically applied in retaliation cases. Acharya v. Carroll, 152 Wis. 2d at 340.

Here, the ALJ did not even find Notaro's statements concerning filing a complaint were a factor in the decision, much less a determining factor. Rather, the ALJ found that the objection to the termination of insurance premium payments was "the primary reason" for the termination. He also found that the matter of Notaro making statements about filing a complaint was "considered" by the respondent, "secondarily," along with a number of other things. The Commission sees this as representing a finding by the ALJ that whatever role the matter of the statements about filing a complaint played, they were something less than a determining factor. This conclusion is supported by the fact that the ALJ made a conclusion of law that Notaro failed to establish by a preponderance of the evidence that respondent retaliated against him. Presumably, if the ALJ had felt that the "consideration" of Notaro's filing of a complaint had been a "determining factor," unlawful retaliation would have been found. The fact that it was not found thus supports the view that the ALJ did not believe that the "consideration" he described in his finding of fact even rose to the level of a determining factor. The commission agrees.

NOTE: Unlike the ALJ, the commission does not rely on the unemployment compensation appeal tribunal decision as a basis for the conclusion that respondent acted against complainant because of his objections to the 'termination of his health insurance coverage. Section 108.101, Stats. 1989-90, enacted by 1989 Act 77 and applicable to the appeal tribunal decision in this case, clearly had as its purpose the elimination of the practice of using unemployment compensation decisions as preclusive determinations in other forums. Under this section, the appeal tribunal decision was inadmissible and should not have been admitted. This makes no difference in the outcome, however, since (as the ALJ noted in his Memorandum) there are other grounds in the record on which to arrive at the same conclusion.

110

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(1)( Back ) Filing a charge with the ERD is clearly an act of "opposition" itself. However, there are different legal standards and tests depending on whether something is classed as "opposition" or "participation," and the differences are such that charge filing will generally be evaluated as "participation" rather than mere "opposition," for reasons discussed at more length below in this Memorandum Opinion.

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