RITA POST, Complainant

MAUSTON SCHOOL DISTRICT, Respondent

An administrative law judge (ALJ) 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 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.

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

Dated and mailed August 28, 2002
postri3 . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

This case arises out of an allegation by Rita Post that the respondent discriminated against her, in violation of the Wisconsin Fair Employment Act, on the basis of age with respect to her terms and conditions of employment when it changed her teaching assignment from that of teaching 5th grade language arts and math to teaching 7th and 8th grade math. (1)

The commission agrees with the ALJ's decision that Post failed to prove by a fair preponderance of the evidence that the respondent discriminated against her on the basis of age in regard to the terms and conditions of her employment.

Post began employment as a teacher for the respondent at the respondent's Westside Elementary School in 1963. She remained at Westside until 1981, when she was transferred to Olson Middle School. From 1981 through the 1997-1998 school year, Post was assigned to teach fifth grade language arts and math at Olson Middle School. William Shaw became the principal at Olson Middle School in 1985.

Post's time spent teaching language arts and math at Olson Middle School was pretty evenly divided. It consisted of one language arts section that took about a three to three-and-a-half hour block of time and three different sections of math. Additionally, as of the 1997-1998 school year, Post had also served somewhere from 10-14 years as the fifth grade representative for the school district's math curriculum committee. The function of the math curriculum committee is to assess curriculum and grading, to make sure certain topics are being taught somewhere between the grade levels within the system K-12, to make sure there is not a lot of overlapping, and to determine what type of curriculum should be taught and how to teach.

Post was certified to teach grades 1-8. Olson Middle School included grades 5 through 8. The core subject areas at the middle school are science, language arts, reading, math and social studies. The different grade levels are organized into teams. Shaw introduced the team teaching concept at Olson Middle School grade by grade, beginning with the fifth grade class in 1988. The team concept of teaching allows teachers to work collaboratively together on a daily basis within grade level with respect to setting homework policies and rules for their grade, putting together integrated units, meeting with specialists and meeting as a whole team with parents. Shaw regards the team concept as integral to the success of students at the middle school.

As principal, Shaw was in charge of teacher assignments at Olson Middle School. During the spring of 1998 Shaw assigned Dawn Nelson, who had been employed as the 8th grade math teacher since 1993, to teach the following school year (1998- 1999) at the respondent's newly established charter school. This new school was an alternative school program for "at risk" students. Dawn Nelson had been on the committee involved in planning the new charter school and had expressed an interest in becoming the teacher at the charter school. As a result of Nelson's reassignment, there was a need for an 8th grade math teacher.

Further, at the same time the 8th grade team was losing Nelson as the 8th grade math teacher, Mr. Pierce, a long-term eighth grade teacher, was retiring at the end of the 1997-1998 school year. This left the 8th grade team with three teachers who had little experience at the middle school level and little experience with the team teaching concept.

Shaw assigned Post to take over most of the 8th grade math courses that Nelson had taught. Specifically, for the 1998-1999 school year, Shaw assigned Post to teach one 8th grade "consumer math" class (for students who had difficulty with math), two 8th grade general math classes, one 8th grade pre-algebra class, and, instead of Nelson's 8th grade algebra course, one 7th grade math course. Shaw did not feel that Post would be able to teach the algebra course. Post was age 68 when Shaw assigned her to teach the 7th and 8th grade math courses.

Shaw's reassignment of Post from teaching 5th grade to teaching 7th and 8th grade did not result in her losing any pay or benefits. Her hours of class time remained the same and she continued to work in the same building. Her reassignment did not involve any diminution of her responsibilities as a teacher.

Post alleges that by reassigning her to teach 7th and 8th grade math the respondent discriminated against her in regard to her terms and conditions of employment because of her age. Specifically, Post claims that Shaw assigned her to teach 7th and 8th grade math for the 1998-1999 school year in an attempt to force her to retire.

Post's claim that her reassignment was an attempt to force her to retire is based on a number of conversations that she had with Shaw regarding retirement and retirement benefits. Post asserts that possibly beginning in 1992 and in each of the next two years, Shaw asked what her retirement plans were on teacher checkout day, one of the last days before the summer recess. Post asserts that when discussing an unruly fifth grader in 1995, Shaw asked why she continued to teach with all the frustrations she was experiencing with unruly students. She asserts that in late April 1996, Shaw commented that he could not understand why she kept on teaching. She asserts that at that time Shaw mentioned how close a retiring colleague's pension would come to what he had earned as a salary, what her (Post's) pension would be if she retired and how his (Shaw's) mother was enjoying retirement. Post asserts that on April 4, 1997, after she had handed in her contract accepting employment for the following year, Shaw asked why she wanted to keep on teaching, and stated that she should retire and she was losing money by not retiring. Post asserts that subsequently during a meeting on April 14, 1997, Shaw again asked why she continued to teach and stated, "You are holding a spot some young person like my daughter could hold." Post asserts that during the April 14 meeting Shaw stated that he had been talking with parents who did not want their children to be in her room, and followed with the comment that "You're healthy, active, alert, you should retire now with dignity and not have these parental complaints brought up at contract renewal time before the Board of Education." Further, Post asserts that Shaw, who had been working on the school budget, pointed to the table beside his desk and stated, "I have the budget spread out over there, and I have to cut $21,000 from it." Post asserts that in the fall of 1997 Shaw asked why she was not at a meeting put on by a retirement specialist and stated that the meeting had been called specifically for her. Finally, Post asserts that on April 7, 1998, five days after turning in her signed contract for the following year, she met with Shaw who presented her with the possibility of working under a grant proposal being written for a part-time position. The grant proposal required that she be retired and involved assisting parents in helping their children with their education.

Assuming for purposes of argument that Post has established a prima facie case of age discrimination, several reasons lead the commission to conclude that Post has not shown by a preponderance of the evidence that she was discriminated against on the basis of her age. First, for example, Shaw's asking Post about her retirement plans on the last day of school, without more, is not evidence of age discrimination. An employer has a legitimate interest in learning of its employee's plans for the future in order that the employer itself might plan for the future. Shaw's inquiry was particularly relevant for the respondent since the respondent had experienced problems with teachers accepting contracts and then not returning to teach after the summer recess.

Additionally, although disputed by Post, several witnesses testified that Post herself had initiated several conversations with management staff regarding retirement during the period in question. For example, Shaw testified that Post had discussed her retirement plans with him on two occasions. Shaw testified that in 1993 Post stated that she was going to retire in one more year, and that in 1994 Post stated that if she could get a second grade teaching position, she would retire in two years. Administrative assistant Leslie McMullen testified that Post, believing an eligible service day had not been recorded on a retirement account statement received during the summer of 1995, stated to her "I would retire if I could get this day of creditable service on my account." Further, McMullen testified that after handing Post her teacher contract for the 1998-1999 school year, Post commented that she was thinking about retiring next year but did not know whether or not she should. Finally, Jay Mitchell, district administrator for the respondent at the time relevant herein, testified that when Post's son was applying for a custodian position with the district in November 1997, Post offered to retire if her son was hired.

Further, the commission finds that Post's claim that Shaw's discussions regarding retirement and retirement benefits was evidence of age discrimination falls short for another reason. Specifically, the evidence shows that Shaw, who was quite knowledgeable about the benefits provided to teachers under the Wisconsin Retirement System, was a proponent of the benefits available under the retirement system and that as a proponent of the retirement system he spoke not only to Post about the financial benefits available under the retirement system but frequently spoke to other teachers about the financial benefits available under this retirement system. Indeed, Post admits that usually whenever she had a discussion about retirement with Shaw, it was in the context of the benefits that would be available to her should she decide to retire. Further, the record shows that Shaw did not limit his sharing of stories about his friends who were enjoying retirement with Post, he also shared these stories with other teachers as well.

Moreover, Shaw provided an entirely different account of the April 1997 meeting than that asserted by Post. Shaw states that he had come to know, through his own observation and communication with teachers and aides, of Post's growing frustration with some of the students and their behavior. A 1995 summative evaluation that Shaw prepared for Post supports his statement. In this evaluation Shaw included comments that Post should maintain a higher tolerance for children with behavioral (exceptional educational need) problems, and that students and parents did not regard Post's classroom as a warm environment. Shaw also commented that an effort should be made for a more relaxed teaching style. Shaw asserts that because of the frustration shown by Post and her discussions about retirement, he met with Post to discuss just what she had planned to do and what could be done to make her classroom better. Shaw asserts that Post raised the idea of retiring and then working in a part-time, 25-hour per week position, but he opposed this because it would require the creation of a position at a time when the district was under budget constraints. Shaw asserts that he discussed parents contacting the administration about Post as a means of verifying that she was becoming more frustrated in the classroom. Shaw asserts that he made a comment about Post "retiring with dignity" because he felt very strongly that Post's record of longevity in the district deserved treatment with respect and because he was concerned about parents going behind his back with complaints directly to the Board of Education. Shaw disputed Post's assertion that he told her she was holding a spot some young person like his daughter could hold. Shaw admitted commenting that Post was healthy, active and alert. However, Shaw asserts that he made this comment because he sensed that Post was having difficulty deciding what she really wanted to do. He asserts that over the years Post had presented the possibility of continuing to teach, retiring and transferring to another school district, and that he wanted her to be able to make any decision that she wanted to. Shaw states that this comment was made as a compliment. Shaw asserts that when Post raised interest in a 25-hour position a second time he pointed out to her that he was already in the process of having to cut an additional $25,000.00 from the budget.

As for meeting with Post about the grant proposal, Shaw testified that he met with Post because Mitchell instructed him to inform Post about the grant proposal, because Post had previously indicated that she was interested in being involved with the school after retirement and because his experience has been that even though teachers have signed contracts for the following year, during the summer they either leave, quit or retire.

In addition to the above, Post's contention that her 1998-1999 assignment change was an attempt to force her to resign is also undermined by several other factors. First of all, there clearly was a need for someone to teach eighth grade math. During the spring of 1998, Dawn Nelson, who had been employed as the eighth grade math teacher since 1993, was assigned to teach at the respondent's new charter school, an alternative school program for "at risk" students. In addition to the loss of Nelson, there was a long-term eighth grade teacher retiring at the end of the 1997-1998 school year. The losses of these two eighth grade teachers left the eighth grade teaching team with teachers who had little experience in the team teaching concept and who were struggling with that concept. Shaw, who had introduced the team teaching concept at Olson Middle School, regarded team teaching as integral to the success of the middle school students. Second, Shaw viewed Post as a good choice to fill the 8th grade position. Shaw was looking for someone with this experience to come in and help add continuity to the 8th grade team in these areas. Post had been a middle school teacher since 1981, and had had experience with the team teaching concept since its implementation at the Olson Middle School in 1988. Post also had math experience, being the primary math provider for the 5th grade team, and she had been a member of the district's math curriculum committee. Further, Shaw knew that Post had a very orderly classroom and felt that her demeanor with children would be very good with seventh and eighth grade students. Third, Post has failed to identify another individual that would have been a more appropriate choice than she to teach the seventh and eighth grade math classes. Fourth, Post's teacher contract with the school district provided that she was to "teach as directed where certified," and Post was certified to teach grades 1-8.

Finally, in addition to all of the above, having consulted with the ALJ regarding the credibility and demeanor of the witnesses at the hearing, the commission finds no reason to question his assessment of witness credibility and demeanor. The ALJ stated that Post simply did not come across as a very credible witness. He noted, for instance, that when asked the simple question if she was certified to teach 8th grade Post did not want to answer the question because the answer would not be helpful to her. The ALJ noted that there were other instances of this, for example, when Post was asked if she had requested the Department of Public Instruction to drop her 7th and 8th grade certification and when asked if she had called Superintendent Mitchell about her son getting hired for a custodial job with the district. As further reason for questioning Post's credibility, the ALJ noted that Post seemed to exaggerate the significance or importance of various events. For example, the ALJ noted the fact that Post unreasonably viewed an e-mail communication that Shaw had sent to all middle school staff regarding the budget situation as a "direct hit at her." As another example of this the ALJ noted that once a year Shaw had asked Post about her retirement plans--after Post had already been offered a contract to teach--and then in 1995 when Shaw did not ask about her retirement plans Post wrote on her annual evaluation "Nothing said about retirement." In contrast to Post's testimony, the ALJ noted that the testimony of Mitchell, Shaw and McMullen was forthright and that he found nothing about their testimony that gave him reason to question their testimony.

For all of the foregoing reasons, the commission finds that the complainant, Rita Post, has failed to prove by a fair preponderance of the evidence that the respondent discriminated against her on the basis of age when it reassigned her to teach 7th and 8th grade math.

NOTE: The respondent correctly points out that the complainant's written arguments to the commission include a number of factual representations, as well as copies of various documents, that were not made a part of the hearing record. Matters not made a part of the record in this case have not been considered by the commission.

David B. Falstad, Chairman (Concurring Opinion)

This case was the subject of considerable debate over whether or not Rita Post was required to prove, as an element of a prima facie case of alleged discrimination in her terms, conditions or privileges of employment, that she suffered a "materially adverse employment action." See for example, the Seventh Circuit Court's decision, Crady v. Liberty National Bank & Trust Co., 993 F.2d 132 (7th Cir. 1993). In Crady, the court stated that a plaintiff must show that: 1) she was more than forty years old; 2) she performed her job satisfactorily; 3) despite her satisfactory performance she suffered a materially adverse employment action; and 4) the employer treated others outside the protected class more favorably than she was treated. Id. at 134. In Crady, the court stated that "a materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Id. at 136.

I have reservations about following the Seventh Circuit precedent that requires an individual to prove, as an element of a prima facie case of alleged discrimination in terms, conditions or privileges of employment, the material adversity of the employment action in question. I acknowledge that at times the federal employment law has been looked at for guidance in considering claims under the WFEA. However, the commission is not bound to do so. See for example, Racine Unified School Dist. v. LIRC, 164 Wis. 2d 567, 586-587, 476 N.W.2d 707 (Ct. App. 1991); Moore v. LIRC, 175 Wis. 2d 561, 570, 499 N.W.2d 289 (Ct. App. 1993). I would be inclined to find that all that a complainant is required to do is to establish an inference that an employment decision was made on the basis of a protected characteristic. (2)

I believe that if an employer's decision to transfer an employee to a different job is motivated by a discriminatory reason, that is clearly a discriminatory action affecting the employee's terms or conditions of employment. There is no requirement under the Act that the employment action complained of be materially adverse; the Act's language prohibiting age discrimination simply makes it a violation of the Act to discriminate against an individual with respect to that individual's terms, conditions or privileges of employment on the basis of age. See Wis. Stat. § 111.322(1) and § 111.33.

My colleague's concurring opinion contends that because Title VII and the WFEA both contain language making it an unlawful practice to discriminate against an individual in terms, conditions or privileges of employment, and because federal decisions interpreting Title VII, which can provide guidance for interpreting the WFEA, require a plaintiff to show as part of a prima facie case that the plaintiff suffered an "adverse employment action," no reason exists for this commission not to follow those decisions. Further, it is asserted that in those federal decisions the courts have cautioned that "not everything that makes an employee unhappy is an actionable adverse action," because, otherwise, "minor and even trivial employment actions that an irritable, chip-on-the shoulder employee did not like would form the basis of a discrimination suit" as an "expression of concern that the limited resources of the judicial system not be expended on disputes of little real significance or impact, a recurrent theme in common law and equally relevant to the limited resources of the quasi-judicial system being utilized by the complainant here."

I respectfully disagree. Imposing a requirement that a complainant prove that the complainant suffered an "adverse employment action" in order to establish that a violation of the Act has occurred is inconsistent with the plain language of the WFEA. Further, while preserving the limited resources of the quasi-judicial system is a laudable concern, it is not the commission's function to add barriers to employment discrimination claims to protect the administrative agency. If a backlog is created because the Wisconsin Legislature has enacted an overly generous statute, it is up to the Legislature to either provide the resources or amend the statute. These views have been previously expressed by a number of commentators that have examined cases arising under federal employment discrimination law. See, Ernest F. Lidge III, The Meaning of Discrimination: Why Courts Have Erred in Requiring Employment Discrimination Plaintiffs to Prove That the Employer's Action Was Materially Adverse or Ultimate, 47 U. Kan. L. Rev. 333 (1999) (The requirement that a plaintiff prove, as a part of the prima facie case, that the employer's actions about which the plaintiff complains were materially adverse is not justified by Title VII's language, U.S. Supreme Court decisions, legislative history or sound policy). For a similar argument in the context of retaliation claims, see Linda M. Glover, Title VII Section 704(a) Retaliation Claims: Turning a Blind Eye Toward Justice, 38 Hous. L. Rev. 577 (2001) (Courts imposing the higher threshold of requiring that an employer's retaliatory actions be materially or tangibly adverse to gain Title VII protection overlooks the independent interest protected by s. 704(a). The approach to s. 704(a) claims should make actionable any conduct by employers that chills employee access to the anti-discrimination provisions of Title VII).

Finally, I also find it necessary to respond to my colleague's comments regarding the relative merits of commentary by legal scholars and case law as legal authority. First of all, my opinion on this subject matter is not limited to reliance on the opinion of non-judicial authority. See, for example, Day v. Derwinski, 771 F. Supp. 558 (S.D. N.Y. 1991), aff'd, 953 F.2d 635 (2d Cir. 1991)(Court rejected employer's claim that plaintiff's reassignment to another position with the same title and salary was not an adverse action, stating that if an employee's transfer to a different job is motivated by race or age considerations it is obviously a discriminatory action affecting terms or conditions of employment); Passer v. American Chemical Society, 935 F.2d 322 (D.C. Cir. 1991)(Court of Appeals held that district court erred in holding that cancellation of a symposium in plaintiff's honor could not be an act of retaliation, that the ADEA proscribed discrimination against those who invoke the Act's protections and it does not limit its reach "only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer or demotion."); Davis v. Sheraton Society Hill Hotel, 907 F. Supp. 896 (E.D. Pa. 1995) (Court found that refusal to reassign plaintiff to his night Guest Service Agent position showed a sufficient adverse employment action to survive summary judgment because Title VII precludes sex discrimination against "any individual with respect to his compensation, terms, conditions, or privileges of employment" and that this had been held to preclude job reassignments motivated by sex discriminations, citing Day, supra.). Moreover, in connection with retaliation cases, the EEOC, the agency charged with administering employment discrimination statutes, (3)  has stated that it disagrees with courts which have required that employment actions "materially affect the terms, conditions, or privileges of employment," concluding that "such constructions are unduly restrictive." See EEOC Guidance issued May 20, 1998, s. 8-II D 3., p. 12. And, with respect to other forms of discrimination such as race, sex or age, the EEOC has implicitly rejected a requirement that the employment action be materially adverse. The EEOC Compliance Manual states that the statutory phrase "terms, conditions, or privileges of employment" is to be interpreted "in the broadest possible terms," and sets forth several examples of employment actions covering such matters as work environment, work rules, job assignment and performance evaluations which implicitly reject the need to prove that the employment action was materially adverse. See Vol. 2, EEOC Compliance Manual § § 613.1(a), 2(b), 4(b), 5(c) and 6.

Second, the courts often turn to textual and law review commentary for guidance, and, in some instances, consideration of such commentary has had a profound impact on the law. See, for example, Henson v. City of Dundee, 682 F.2d 897, 909 n. 18 (11th Cir. 1982), where the court noted that Professor Catherine MacKinnon's book, The Sexual Harassment of Working Women (1979), "makes a useful distinction between harassment that creates an offensive environment ('condition of work') and harassment in which a supervisor demands sexual consideration in exchange for job benefits ('quid pro quo')." Also, the EEOC's 1980 Guidelines on sexual harassment as Title VII discrimination were foreshadowed by MacKinnon's 1979 book. See, 3 L. Larson and A. Larson, Employment Discrimination @ 46.02(2), n. 15, p. 46-11.

___________________________
/s/ David B. Falstad, Chairman

Laurie R. McCallum, Commissioner (Concurring Opinion)

I agree that the record here does not support a finding of age discrimination. However, in my opinion, the McDonnell Douglas analysis need not have progressed beyond the prima facie case step since complainant failed to establish that she suffered a cognizable adverse employment action.

Wisconsin courts and this commission, in applying the Wisconsin Fair Employment Act (WFEA), have adopted the federal framework for allocating burdens and the order of presentation of proof. Puetz Motor Sales, Inc. v. LIRC, 126 Wis. 2d 168, 173, 376 N.W.2d 372, 374-75 (Ct. App. 1985). This framework requires the complainant to establish a prima facie case of discrimination in order for the analysis to proceed to the second step and, as a result, in order to prove discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 67 L.Ed 2d 207, 101 S.Ct. 1089 (1981).

In order to establish a prima facie case of age discrimination, complainant must show that she was in the protected age category at the relevant time, that she suffered an adverse employment action, and that the circumstances surrounding this adverse employment action create an inference of age discrimination, e.g., that she was treated differently than similarly situated younger employees. Stipetich v. Grosshans, 234 Wis. 2d 63 (Ct. App. 2000).

The area of disagreement here centers on what the definition of "adverse employment action" should be for purposes of application of the WFEA.

Wis. Stat. § 111.322(1), makes it an act of employment discrimination under the WFEA to "refuse to hire, employ, admit or license any individual, to bar or terminate from employment . . . or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment." Since the employment action at issue here is not a hiring, termination, promotion, or compensation action, our inquiry necessarily must focus on what is meant by "terms, conditions, or privileges of employment."

Title VII, in 42 U.S.C.S. § 2000e-2(a)(1) identifies actionable adverse employment actions in essentially the same way as the WFEA:

"It shall be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment ."

In interpreting this parallel Title VII language, federal courts, including the Seventh Circuit Court of Appeals, which includes Wisconsin within its jurisdiction, have developed an extensive body of law.

In Smart v. Ball State University, 89 F.3d 437, 71 FEP Cases 495 (7th Cir. 1996), the court summarized the results in certain of these cases as follows:

Adverse employment action has been defined quite broadly in this circuit. McDonnell v. Cisneros, . . . 84 F.3d 256, 70 FEP Cases 1459 (7th Cir. 1996). In some cases, for example, when an employee is fired, or suffers a reduction in benefits or pay, it is clear that an employee has been the victim of an adverse employment action. But an employment action does not have to be so easily quantifiable to be considered adverse for our purpose. . .

While adverse employment actions extend beyond readily quantifiable losses, not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions that "an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 70 FEP Cases 1639 (7th Cir. 1996). In Crady v. Liberty National Bank & Trust Co. of Indiana, 993 F.2d 132, 61 FEP Cases 1193 (7th Cir. 1993), we found that a change in title from assistant vice-president and manager of one branch of a bank to a loan officer position at a different branch did not by itself constitute an adverse employment action. . Likewise, in Flaherty v. Gas Research Institute, 31 F.3d 451, 65 FEP Cases 941 (7th Cir. 1994), we found that a lateral transfer, where the employee's existing title would be changed and the employee would report to a former subordinate, may have caused a "bruised ego," but did not constitute an adverse employment action. Most recently, in Williams, we found that the strictly lateral transfer of a salesman from one division of a pharmaceutical company to another was not an adverse employment action.

In reaching a parallel result, the court in Collins v. State of Illinois, 830 F.2d 692, 703, 44 FEP Cases 1549 (7th Cir. 1987), acknowledged the broad sweep of Title VII as follows:

Title VII does not limit adverse job action to strictly monetary considerations. One does not have to be an employment expert to know that an employer can make an employee's job undesirable or even unbearable without money or benefits ever entering into the picture. In a sex discrimination case focusing on the issue of adverse job action, the Second Circuit pointed out:

Recognizing that job discrimination may take many forms, Congress cast the prohibition of Title VII broadly to include subtle distinctions in the terms and conditions of employment as well as gross salary differentials based on forbidden classifications. .

We believe adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well. (citations omitted).

While acknowledging both the broad sweep of Title VII and its broad remedial purpose, these courts have, however, declined to extend Title VII's reach to any and all employment actions to which an employee objects, recognizing that Congress did not intend that the courts allocate limited judicial resources to minor or even trivial matters. See, e.g., Williams, supra.

The same result should attend here. The majority opinion recognizes as follows:

Shaw's reassignment of Post from teaching 5th grade to teaching 7th and 8th grade did not result in her losing any pay or benefits. Her hours of class time remained the same and she continued to work in the same building. Her reassignment did not involve any diminution of her responsibilities as a teacher.

This opinion also concluded that Post's employment contract called for her to "teach as directed where certified," that she was certified and qualified to teach 7th and 8th grade math, that she had been teaching math albeit at the 5th grade level for many years, and that she had served for multiple years on the district's math curriculum committee and was as a result familiar with the math curriculum at the 7th and 8th grade levels. The only impact on complainant's employment which could arguably be characterized as adverse was the time complainant felt that she now needed to spend during the summer preparing herself to teach math at a new grade level. The record shows, by the way, that this summer preparation activity was one in which it was not unusual for Post's colleagues to routinely engage. This fact situation compels the conclusion that, although Post preferred to remain as a 5th grade teacher, her transfer or reassignment to the 7th/8th grade classroom had only a minor or even trivial impact on her employment. This case does not even present adverse elements rising to the level of those rejected by the Williams, Crady, or Flaherty courts as not sufficiently adverse, i.e., change in title, change of supervisor, change of location, change of employing unit. Clearly, then, if this case had been brought as a Title VII action, Post's reassignment/transfer here would not rise to the level of an adverse employment action. (4)

Why, then, should a different result be reached under the WFEA? There is nothing in the legislative history or the language of these statutory schemes which would justify a different result. In fact, Wisconsin courts have long relied upon Title VII case precedent to craft decisions under the WFEA. Bucyrus-Erie Co. v. ILHR Department, 90 Wis. 2d 408, 421, 280 N.W.2d 142, n.6 (1979) (federal decisions interpreting Title VII can provide guidance for the interpretation of the WFEA). The rationale for following federal precedent is particularly compelling where, as here, the corresponding statutory language is not only parallel, but essentially identical.

Another persuasive factor here relates to the caution expressed by the courts in Williams and Smart, supra, i.e., that "not everything that makes an employee unhappy is an actionable adverse action," because, otherwise, "minor and even trivial employment actions that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit." This is an expression of concern that the limited resources of the judicial system not be expended on disputes of little real significance or impact, a recurrent theme in common law and equally relevant to the limited resources of the quasi-judicial system being utilized by the complainant here. In the instant action, complainant has failed to show that her transfer/reassignment had anything but a minor or even trivial effect on her employment.

What difference does any of this make at this point in these proceedings? (5)   As to this case, probably very little, although it would serve as further support for the commission's decision here in favor of the respondent employer. However, this commission does not operate in a vacuum. In view of the potential availability of summary disposition procedures in administrative proceedings, (6)  a conclusion that certain employment actions are not sufficiently significant to be actionable could have an impact on the expenditure and allocation of public resources by the Department of Workforce Development (DWD) and the commission, i.e., summary disposition of WFEA cases prior to investigation or hearing due to a complainant's failure to allege a cognizable adverse action could result not only in a saving of administrative resources but also in the ability of this administrative process to focus its resources on matters of real significance to employees and employers. It is instructive to note that the state agency with responsibility under the WFEA which parallels that of DWD and the commission, except that its jurisdiction extends to actions filed against the state as an employer, has decided to follow the apparently majority view articulated in the 7th circuit decisions discussed above. See, e.g., Dewane v. UW, Case No. 99-0018-PC-ER (Wis. Personnel Comm'n Dec. 3, 1999).

The complainant also argues that the commission, in Muenzenberger v. County of Monroe, (LIRC, Aug. 13, 1998), has already resolved the point under consideration here. However, although a previous commission rejected the relevant rationale articulated in Smart, supra, in its decision in Muenzenberger, this rejection is puzzling in view of the facts in that case. In Smart, the 7th Circuit opined that a negative performance evaluation, standing alone, does not constitute a cognizable adverse employment action. However, the court took pains in this decision to distinguish such a situation from one in which a negative performance evaluation results in the removal of key job responsibilities (citing Vergara v. Bentsen, 868 F.Supp. 581, 68 FEP Cases 1591 (S.D. N.Y. 1994), and Sowers v. Kemira, Inc., 701 F.Supp. 809, 825, 46 FEP Cases 1825 (S.D. Ga. 1988)); results in a demotion (citing EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 61 FEP Cases 1001 (11th Cir. 1993)); or is accompanied by or results in other such employment actions. Under the facts of Muenzenberger, the unsatisfactory performance evaluation did not stand alone, i.e., the complainant was denied a salary increase as a direct result of this unsatisfactory evaluation. Under the standard enunciated by the 7th Circuit in Smart, supra, it would have to be concluded that the complainant in Muenzenberger alleged a cognizable adverse employment action. (7)   The previous commission's stated rejection of Smart in reaching the same result is, as stated above, puzzling.  I agree with the conclusion in Muenzenberger that an unsatisfactory performance evaluation which results directly in the denial of a salary increase constitutes an adverse employment action under the WFEA, but I point out, contrary to the previous commission's opinion in Muenzenberger, that this result is consistent with, not contrary to, the 7th Circuit's decision in Smart. It would have to be concluded as a result that the holding in Muenzenberger has limited utility in the resolution of the present controversy and limited persuasive punch. Finally in this regard, I would note that the holding in Muenzenberger was very fact-specific, i.e., the commission focused its concern on the impact a negative performance evaluation could have on a complainant's future employment opportunities. It would have to be concluded that this same concern would not attend the fact situation under consideration here since complainant has failed to show that the subject transfer/reassignment would have any negative impact on her future employment.

Complainant also argues that the decision in Watkins v. LIRC, 69 Wis. 2d 782, 233 N.W.2d 360 (1975), demonstrates the reluctance of courts in a WFEA action to conclude that an employment action is not sufficiently adverse to be actionable. It should first be pointed out that the court in Watkins was resolving a mootness issue, not the issue before us here. It should also be noted that the fact situation in Watkins involves a denial of an application for a transfer from one civil service position to another, i.e., a competitive hiring action. A refusal to hire is specifically identified in both the WFEA and Title VII as actionable. Hence, despite the expressive language in Watkins cited by the complainant, this decision, too, has limited application here.

The contrary view expressed in the other concurring opinion relies primarily not on a comparison of the relevant statutory language or on case law, but on the views expressed by individual commentators. Although consideration of such views may be useful in developing one's understanding of the debate, they do not constitute legal authority. Such views constitute, at best, one person's opinion or interpretation. It is puzzling that reliance on the opinions of non-judicial authority would be urged over reliance on case law authority developed by the federal courts.

__________________________________________
/s/ Laurie R. McCallum, Commissioner

cc: Attorney David R. Rohrer

Appealed to Circuit Court. Affirmed January 28, 2003.

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(1)( Back ) Subject to ss. 111.33 to 111.36, the Wisconsin Fair Employment Act makes it unlawful for an employer to "discriminate against any individual.in terms, conditions or privileges of employment" on the basis of age. Wis. Stats. §§ 111.322(1) and 111.321.

(2)( Back ) In the instant case, where the respondent has articulated its legitimate, nondiscriminatory reason for its employment action as if Post had properly made out a prima facie case, I would simply proceed to decide whether the respondent discriminated against Post on the basis of age. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983).

(3)( Back ) EEOC guidelines, "while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance." Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986), quoting, General Electric Co. v. Gilbert, 429 U.S. 125, 141-142 (1976).

(4)( Back ) See, in support, Doe v. DeKalb County School District, 145 F.3d 1441 (11th Cir. 1998)(in order to constitute an adverse employment action, a transfer must have some of the attributes of a demotion; the fact that an employee must learn as a result of a transfer dose not mean that the transfer is per se adverse as all transfers require some learning; the transfer of a teacher to a position in another school which required him to complete 10 credit hours of additional training not an adverse employment action); Johnson v. Chattanooga Board of Education, 1991 U.S. App. Lexis 3351 (6th Cir. 1991) (transfer from teaching 2nd grade to teaching 3rd grade not adverse employment action even though complainant would prefer to teach 2nd grade).

(5)( Back ) See, e.g., U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 715 (1983) (where the entire case has been tried on the merits, and the parties have fully tried the question of whether the employer's actions were pretextual, the question of whether a prima facie case has been established "is no longer relevant.").

(6)( Back ) Balele v. Wis. Pers. Comm., 2002 WI App 134, 2002 Wisc. App. LEXIS 495 (April 25, 2002) (unpublished)

(7)( Back ) See, Lutze v. DOT, Case No. 97-0191-PC-ER, (Wis. Personnel Comm'n. July 28, 1999): Here, unlike the situation in Smart and Bragg, supra, the performance evaluation, according to complainant, does not stand alone, i.e., complainant represents that it was part of an evaluation/compensation process which linked a satisfactory performance evaluation to eligibility for merit pay. Complainant has alleged that, as the direct result of the unsatisfactory performance evaluation he received on June 17, 1997, he was denied a merit pay increase. This concrete, tangible impact on complainant's pay results in a conclusion that the unsatisfactory performance evaluation was an adverse employment action within the meaning of the [W]FEA, and the motion to dismiss should be denied as a result.

uploaded 2002/09/06