The Wisconsin Equal Rights (ER) Decision Digest -- Sections 130-133
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130 Use Or Non-Use Of Lawful Products
The Complainant's claim of discrimination because of use or non-use of a lawful product off the employer's premises during non-working hours related to a counseling session which she had with a mental health counselor. The prohibition against discrimination on the basis of use or non-use of a lawful product was intended to provide protections for the use or non-use of products such as tobacco or alcohol. A counseling session with a mental health counselor is not a 'product.' It is a service. Hoyer v. Calumet Medical Center (LIRC, 05/07/10).
A Complainant and a Respondent would have the following respective burdens of proof in a case of alleged discrimination based on the use of a lawful product off the employer's premises during non-working hours. First, the Complainant would be required to show that: (1) he used a lawful product off the employer's premises during non-working hours; (2) he suffered an adverse employment action; and (3) there was a causal connection between the Complainant's use of the lawful product off the employer's premises during non-working hours and the adverse employment action. Second, if the Complainant met this burden, the burden would then shift to the Respondent to establish that the adverse action taken due to the Complainant's use of a lawful product off the employer's premises during non-working hours was not an act of employment discrimination because the Complainant's use of the lawful product off the employer's premises during non-working hours resulted in any of the conditions listed in sec. 111.35(2)(a)-(e), Stats. Miller v. Menard, Inc. (LIRC 08/31/06).
Lawfully obtained prescriptions for controlled substances for an individual's existing current medical condition are lawful products under the Wisconsin Fair Employment Act. Miller v. Menard, Inc. (LIRC 08/31/06).
The Complainant in this case failed to establish that he used a lawful product off the employer's premises. The Complainant used one pill of Tylenol-3 with codeine, a controlled substance, which had been prescribed for him four years earlier for a different medical condition. Sec. 961.38(1r), Stats., provides that "no controlled substance included in schedule II may be dispensed without the written prescription of a practitioner." Sec. 961.38(3), Stats., provides that "a controlled substance included in schedule III or IV which is a prescription drug, shall not be dispensed without a written, oral or electronic prescription of a practitioner." The Complainant did not show that he was dispensed a controlled substance for his current back condition pursuant to a written, oral or electronic prescription of a practitioner. His use of the medication was, therefore, not the use of a lawful product. Miller v. Menard, Inc. (LIRC 08/31/06).
There is no basis for interpreting the "use of lawful product" provision in the Wisconsin Fair Employment Act as affording protection against employer action taken against an individual who: (1) is not under the care of a physician, (2) does not possess a current medical prescription authorizing the use of a controlled substance, and (3) who tests positive for use of a controlled substance in violation of the employer's Drug-Free Workplace Policy. Miller v. Menard, Inc. (LIRC 08/31/06).
A Respondent had reason to believe that an employe was using alcohol to the extent that it was having a negative effect on her ability to perform her job. The employer had a legitimate interest in determining whether or not she was capable of discharging her duties as the administrator of its nursing home. The employe was discharged when she refused to undergo an assessment for alcohol abuse. The Complainant’s employment was not terminated because of use or non-use of a lawful product off the employer’s premises during non-working hours. Dable v. Petersen Health Care (LIRC, 07/30/97).
The Complainant's claim that the Respondent violated the Wisconsin Fair Employment Act's prohibition against discrimination on the basis of "use or non-use of lawful products off the employer's premises" was properly dismissed where the Complainant was a self-employed person. The Complainant would have had to have been an employe of an employer who would fire or not hire him based on his use of a lawful product, such as cigarettes. In this case, the Complainant merely alleged that the Respondent would not let him service its fire extinguishing systems because he was not a factory-authorized service representative. Hellerude v. LIRC (LaCrosse Co. Cir. Ct., 09/23/96).
131 Military Service Discrimination
[Ed. Note: In 2008, the Wisconsin Fair Employment Act was amended to substitute the term "military service" for the phrase "membership in the national guard, state defense force or any other reserve component of the military forces of the U.S., or this state".]
The Complainant’s allegation that he was displaced from a civil service position by a returnee from military leave and forced to accept a transfer to another institution failed to state a claim for relief under the Wisconsin Fair Employment Act. The intent of including Guard or Reserve membership as a protected status under the Wisconsin Fair Employment Act was to protect individuals from being discriminated against because of their membership in the Guard or Reserve, not to prohibit the State as an employer from complying with a long-standing state law (sec. 230.32, Stats.) requiring the job restoration of employees returning from military leave. Gandt v. DOC (Wis. Personnel Comm., 01/08/92).
The Respondent required certain documentation from the Complainant (his annual schedule of military training dates) in order for the Complainant to take two days of military leave. The Complainant provided that documentation and then took the leave. The action taken by the Respondent did not rise to the level of an adverse personnel action. The complaint, which alleged that the Respondent had discriminated against the Complainant on the basis of membership in the National Guard or military reserve, was appropriately dismissed. Cunningham v. Dept. of Corrections (Wis. Personnel Comm., 07/20/99).
Although the Wisconsin Fair Employment Act prohibits an employer from discriminating against an individual based upon his or her status as a member of a reserve component of the military forces of the United States, there is nothing requiring the Respondent to consider the Complainant's military service record in deciding whether to eliminate his job or terminate his employment. Kolberg v. Kearney & Trecker Corp, (LIRC, 06/19/96).
There was no basis for any suspicion that the Respondent had any preconceptions about, or bore any animus towards the Complainant because of her service with the Army National Guard. There was nothing wrong in the Respondent's director of nursing making a comment to the effect that most of the Complainant's experience in nursing had been in the Army. Nor was it improper, when the Complainant commented on one occasion to the effect that when she was in the Army they did something a certain way, for the Respondent's director of nursing to respond that that way of doing things did not fit in with the Respondent's way of doing business. Titus v. Oakwood Lutheran Home Ass'n. (LIRC, 05/24/94).
The intent of adding national guard or reserve membership to the Wisconsin Fair Employment Act was to protect individuals from being discriminated against because of their membership in the guard or reserve, not to prohibit the State as an employer from complying with a longstanding state law which requires the restoration of State employes returning from military leave (sec. 230.32, Stats.). Gandt v. DOC (Wis. Personnel Comm., 01/08/92).
132 Honesty Testing
132.1 Required procedures, nature of permitted tests
Written honesty tests were not within the purview of sec. 111.37(1)(a), Stats., as it existed in 1990. Pluskota v. Roadrunner Freight Systems, 188 Wis. 2d 288, 524 N.W.2d 904 (Ct. App. 1994).
The Wisconsin Fair Employment Act is intended to regulate only those types of honesty tests which operate in the same manner as a polygraph, voice stress analysis, or psychological stress evaluator. All of these tests measure the physiological changes in an individual from which deception or veracity may be inferred. The Reid Report, which is a paper and pencil test, purports to measure an individual's attitude towards honesty. It does not attempt to measure physiological changes in an individual. Therefore, it is not covered by the provisions of sec. 111.37, Stats. Hintz v. Fleet Farm (LIRC, 05/22/91).
132.2 Discipline or discharge based on refusal to take test
In connection with an investigation into falsification of refund records at one of its stores, the Respondent asked many of its employes to submit to both a polygraph examination and a security interview with a security firm. Where the Complainant refused to take the polygraph examination, refused to participate in the security interview, and was terminated, the termination was not because of her refusal to take the polygraph examination, but because of her refusal to cooperate in an interview with a security agent attempting to investigate the circumstances of the refund falsifications. Many other employes who refused to take the polygraph examination but who participated in the security interview were retained by the employer. Saler v. Spencer Gifts (LIRC, 09/30/88).
132.3 Definition of "test results"
The fact that an employe was never informed that his answers to pre-test questions could serve as an independent basis for the employer to make an employment decision did not render those pre-test admissions any less voluntary. The Complainant had no legitimate right to expect the employer not to be concerned or to act upon his pre-test admissions of having engaged in unlawful conduct. Sajdowitz v. Cedarburg Police Dept. (LIRC, 10/15/87).
Admissions made by an employe prior to or during a polygraph test do not constitute a "result of a permitted test" within the meaning of the statutory provisions making it illegal to discharge an employe based on the "results of a permitted test." The "results of a polygraph test" are the polygrapher's opinion concerning truth or deception and the recordings of the polygraph machine, and those results exclude statements made to the polygrapher in pre-test or post-test interviews. Thus, it was not illegal to terminate an employe, who, in an interview prior to the administration of a polygraph test, made an admission of petty thefts from the employer. Weston v. Bricker Systems (LIRC, 12/20/85), aff'd., Milwaukee Co. Cir. Ct., 07/22/87.
When the Complainant, in a pre-test interview, admitted that she had stolen $20 from the Respondent on a previous occasion, and when the Respondent discharged the Complainant because of that admission, it did not violate the Act's prohibition on taking disciplinary action against an employe based on the results of a permitted test. Oral disclosures made in connection with the polygraph test are not "results of a test." Schierl, Inc. v. LIRC (Portage Co. Cir. Ct., 09/17/85).
132.4 Definition of "independently obtained evidence"
When the Complainant, in a pre-test interview, admitted that she had stolen $20 from the Respondent on a previous occasion, and when the Respondent discharged the Complainant because of that admission, it did not violate the Act's prohibition on taking disciplinary action against an employe based on the results of a permitted test. Schierl, Inc. v. LIRC (Portage Co. Cir. Ct., 09/17/85).
Information obtained from a pre-test interview may not be distinguished from that obtained from the polygraph examination itself so as to constitute "independently" obtained information. Weston v. Church's Fried Chicken (LIRC, 08/14/84); Jelenchick v. Howard Johnson's (LIRC, 01/26/84).
133 Retaliation (Fair Employment) Retaliation for exercise of rights under the WFEA (s. 111.322(3))
Pursuant to sec. 111.322(3), it is unlawful to discharge or otherwise discriminate against an individual because he or she has opposed any discriminatory practice under the Wisconsin Fair Employment Act or because he or she has made a complaint, testified or assisted in any proceeding under the Wisconsin Fair Employment Act.
For cases under sec. 111.322(2m), involving retaliation for attempts to enforce rights under certain laws other than the WFEA, refer to part 134.
133.1 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Coverage
There is no
requirement that an employee's protected opposition take the form of a written
complaint or that it contain any specific information.
All that is necessary is that the employee convey to the employer that he
or she believes discrimination has occurred.
Castle v. St. Charles Youth and Family Services
(LIRC, 4/17/15).
A complaint to human resources that the Complainant's supervisor was subjecting him to discriminatory terms and conditions of employment based upon race by not allowing him to bring a black girlfriend to a company party is considered statutorily protected opposition for purposes of a retaliation claim. Much v. Les Stumpf Ford Inc. (LIRC, 7/31/14).
In a retaliation case, the employer's motivation is the ultimate issue. To make a prima facie case, it is necessary for the Complainant to show that he or she engaged in some statutorily protected act, suffered a subsequent adverse employment action, and that the former was a motivating factor for the latter. Here, the Complainant alleged a discharge in retaliation for his filing of prior discrimination complaints. There was a lack of evidence, however, that the person responsible for deciding to discharge the Complainant knew of the existence of the prior complaints, or was unwittingly influenced by someone who harbored animus against the Complainant because of his prior complaints. Lueck v. County of La Crosse (LIRC, 11/13/14); Aff'd, Lueck v. La Crosse Co. and LIRC, La Crosse Co. Cir. Ct., 04/13/2016.
The Complainant alleged disability discrimination due to reduction in her pay for home care services she provided for her disabled son. The Complaint failed to state a cause of action under the WFEA because the Complainant is not an individual with a disability, and the WFEA does not cover allegations of discrimination based on a Complainant's association with an individual with a disability. The Complainant's retaliation claim for having filed a federal lawsuit fails to state a claim because the lawsuit did not allege any violation recognized by the WFEA as a basis for a retaliation complaint. Bach v. County of Milwaukee (LIRC, 10/09/14); Aff'd, Bach v. LIRC, Ct. App. No. 2015AP1097, 01/28/2016.
A different legal standard governs allegations of retaliation because of “opposition” and retaliation because of “participation.” In order to be protected, “opposition” must actually be engaged in in good faith, while “participation” is always protected, whether done in good faith or not. In addition, it is an essential element of either kind of retaliation case that an employer be shown to have been aware of the protected activity the employee engaged in, and that it understood that the activity was related to alleged discrimination. For this reason, a fair opportunity to defend against a claim of retaliation requires that an employer be put on notice of the specific protected conduct of the employee which is alleged to have been the reason that it retaliated against the employee. Hanson v. Dept. of Transp. (LIRC, 06/14/05)
The Complainant alleged that the Respondent took certain action against him because it believed that he was going to file a complaint with the Equal Rights Division. Such a complaint clearly fails to state a claim for relief under the Wisconsin Fair Employment Act. Sec. 111.322(3), Stats., provides that it is an act of discrimination "to discharge or otherwise 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." The Complainant had not made a complaint, testified or assisted in any proceeding under the Act prior to the action he believed the Respondent took against him. Therefore, any alleged action could not have been taken because he had made a complaint, testified or assisted in any proceeding under the Act. Thornton v. Omni Glass and Paint (LIRC, 07/16/04).
The Complainant alleged that he was retaliated against by his coWorker's after he reported that they had made comments which he considered to be racially hostile towards him. Allegations of coworker retaliation which are not alleged to have been directed by or encouraged by the Respondent cannot support a finding of unlawful retaliation on the part of the Respondent. Bessolo v. Stock Lumber Components (LIRC, 07/30/03).
Retaliation is conduct which the statute condemns solely because of the motivation which underlies it. In order to violate the prohibition against retaliation, an action or decision must have been made because of an actual, subjective belief that the person retaliated against was raising some kind of claim that discrimination was occurring, or was otherwise engaging in protected activity. Fauteck v. Sinai Samaritan Medical Center (LIRC, 11/09/00).
The protections of sec. 111.322(3), Stats., for "oppos[ing] any discriminatory practice under this subchapter" are broad enough to cover a complaint by an employee that she believes that the employer is engaging in discrimination, even if it is not discrimination which adversely affects that particular employee. Osell v. Schedulesoft (LIRC, 10/27/00).
While the Wisconsin Fair Employment Act protects conduct in opposition to what an employee believes to be a discriminatory practice, such conduct is only protected if it is supported by a good faith belief that discrimination in fact occurred. It is not necessary that the employee have been objectively "right" about a belief that an action opposed was prohibited discrimination, but it is necessary that the employee have had a good faith belief that the action they opposed was prohibited discrimination. Where an employee makes allegations of discrimination without believing in the truth of those allegations, the "opposition" is not protected under the Act. Osell v. Schedulesoft (LIRC, 10/27/00).
An employee’s support of a worker’s compensation claim filed by another employee is not one of the protected activities cited in sec. 111.322, Wis. Stats. Lutze v. DOT (Wis. Personnel Comm., 07/28/99).
The Complainant’s refusal to sign a severance or termination agreement containing a release of any claims against the employer did not constitute "opposition" to a discriminatory practice. Nor did the Complainant’s contacting an attorney demonstrate that he opposed a discriminatory practice since the employer had encouraged him to do so before signing the release. Accordingly, the Complainant failed to establish that the employer had retaliated against him by refusing to enter into an independent contractual relationship with him because he had opposed a discriminatory practice under the Act. Weier v. Heiden, Inc. (LIRC, 02/05/98).
The closeness in time of a complaint and the adverse discipline of the Complainant does not in itself establish retaliation. In this case, the employer had a legitimate, non-discriminatory reason for the written warning that it gave to the Complainant. Kannenberg v. LIRC and Walker Stainless Equipment Co., 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997)
To show unlawful retaliation under the Wisconsin Fair Employment Act, the employee must show that he or she engaged in protected activity, was subject to adverse employment decisions, and that there was a causal connection between the two facts. If the employee makes this showing, the employer may rebut the claim of retaliation by articulating a legitimate, non-discriminatory reason for its action. If the employer meets that burden, the employee may prevail by presenting evidence that the proffered reason was a pretext. Kannenberg v. LIRC and Walker Stainless Equipment Co., 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997).
A claim of retaliation because of the Complainant's relationship to another person who filed a discrimination complaint is not cognizable under the Wisconsin Fair Employment Act. Paul v. Fox Point Sportswear (LIRC, 07/18/95).
The anti-retaliation provision of the Wisconsin Fair Employment Act extends to former employes. In this case, the Respondent filed an unfair labor practice charge before the Wisconsin Employment Relations Commission (WERC) against the Complainant, who at the time was no longer employed by the Respondent, but was proceeding to a hearing on a complaint of handicap discrimination against the Respondent. The Complainant alleged that the Respondent's filing of the charge before the WERC constituted unlawful retaliation for protected activity under the Wisconsin Fair Employment Act. However, the Complainant's claim of retaliation was not related to an employment relationship and, thus, fails to come within the scope of the Wisconsin Fair Employment Act. There was not a significant connection between the alleged adverse action by the Respondent and the Complainant's employment opportunity. The gist of the WERC claim was that the Complainant should not be allowed to proceed with his handicap discrimination claim because the issues decided in that claim were already decided by an arbitrator. The WERC complaint did not have negative implications with respect to the Complainant's activity at the workplace or his integrity as a human being. Thus, the Respondent's action could not damage the Complainant's reputation or impair his future employment opportunities. Seeman v. Universal Foods Corp. (LIRC, 09/22/94).
Discrimination because of protected "opposition" does not have to involve a formal complaint to the Equal Rights Division, but can take the form of informal opposition expressed directly to the employer. However, the opposition must have been recognized by the employer as involving a claim of employment discrimination. In this case, there was no violation of the Wisconsin Fair Employment Act because what the Complainant was opposing was what he believed to be a violation of a collective bargaining agreement. The Complainant had alleged that his refusal to drop a grievance under the collective bargaining agreement led to his being retaliated against by the Respondent. Yet the grievance involved no assertion that there had been employment discrimination. The Municipal Employment Relations Act, sec. 111.70, et seq., Stats., provides protection from retaliation motivated by the fact that a person has filed a grievance alleging a violation of a collective bargaining agreement. The anti-retaliation provision of the Wisconsin Fair Employment Act, found in sec. 111.322(3m), Stats., is not intended to serve as a catch-all protection for all manner of employe protests. Norton v. City of Kenosha (LIRC, 03/16/94).
Sec. 111.322(3), Stats. prohibits discrimination because a person has opposed a discriminatory practice, or because a person has made a complaint, testified or assisted in a proceeding under the Wisconsin Fair Employment Act. This section protects both "opposition," which involves that employe's "self-help" actions to oppose what they believe to be a discriminatory practice and which is only protected if it supported by a good faith belief that discrimination in fact occurred; and "participation," which involves actual proceedings before the Equal Rights Division (either filing a complaint or assisting in one) and which is absolutely privileged against retaliation. Roncaglione v. Peterson Builders (LIRC, 08/11/93), aff'd.sub nom. Roncaglione v. LIRC (Dane Co. Cir. Ct., 05/06/94).
The anti-retaliation provision of the Wisconsin Fair Employment Act has two parts. The "opposition" element covers actions taken by an employe on their own to protest discrimination. The "participation" element relates directly and exclusively to the filing of charges with the agency or to assisting in or participating in the investigation of a filed complaint. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).
Retaliation may be found where an individual opposes conduct reasonably believed to be discriminatory, even if he or she is mistaken and there was no discrimination. Roden v. Federal Express (LIRC, 06/30/93).
There is nothing unique about retaliation issues, as opposed to conventional discrimination issues, that suggests that the "in part" test of causation articulated in Muskego-Norway Consolidated Joint School Dist. No. 9 v. WERB, 35 Wis. 2d 540, 151 N.W.2d 617 (1967), should not be applied in those types of cases. Horton v. Hopkins Chemical Co. (LIRC, 06/08/92), aff'd. Dane Co. Cir. Ct., 04/28/93.
Sec. 111.322(2m), Stats., prohibits an employer from discharging an employe who files a complaint under the Act. Thus, an employe is entitled to keep a job even if the employe files a complaint which is devoid of merit. In such cases, the employer must resolve the dispute with the employe within the context of the employment relationship even if the bogus claim causes great and irreparable damage to the company's reputation. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).
A Complainant need not show that he was harmed by the Respondent's action in order to prevail on a claim of retaliation. Ninabuck v. Consol. Freightways (LIRC, 01/31/92).
The Complainant must be able to prove that the alleged retaliatory act impinged upon the Complainant's work. This is an especially important point of proof where the alleged retaliatory treatment (in this case, the employer's refusal to say "good morning" to the Complainant) is more subtle than, for example, a disciplinary demotion, loss of normal work assignments, extension of the probationary period, or denial of a customary letter of recommendation. Alexander v. Aldridge, Inc. (LIRC, 10/21/91).
An adverse action can, in some circumstances, be subject to the anti- retaliation provisions of the Wisconsin Fair Employment Act even though its relationship to an employment opportunity is only indirect. For example, anti-retaliation provisions cover the giving of bad references to an ex-employe in retaliation for a complaint of discrimination by that employe. Filing a lawsuit in tort against an Equal Rights Complainant seeking damages for defamation or malicious prosecution may also be retaliatory. Similarly, threatening an Equal Rights Complainant with criminal charges for allegedly making threatening phone calls to the employer could also be subject to anti-retaliation provisions. In each of these cases there is some effect upon future employment opportunities of the Complainant. In this case, however, the action which the Respondent is alleged to have engaged in because of a retaliatory motive-- contacting the City Recreation Department to report that the Complainant was not a resident of the City in whose softball league she was participating--bears no conceivable relationship whatsoever to any employment opportunity, past, present, or future. While the motivation for the action arose in an employment-related context, the action itself had no relationship to employment and it was, therefore, not prohibited retaliation. Pufahl v. Niebuhr (LIRC, 08/16/91), aff'd. sub nom. Pufahl v. LIRC (Dane Co. Cir. Ct., 06/16/92).
Discrimination because of a person's membership in a protected classification, and retaliation because a person has opposed a discriminatory practice, are different things. Either one may exist without the other. An employer may be found to have illegally retaliated where it has taken adverse action against an employe because of that employe's assertion that the employer has discriminated against the person because of some protected characteristic, even if it is later established that the employer is not guilty of the alleged underlying discrimination. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).
A Complainant's act of publishing a controversial article on prostitution in a professional journal is not protected by the Act from retaliation. Rubin v. UW (Wis. Personnel Comm., 02/18/83).
An employe's opposition to discriminatory treatment of other employes is protected from retaliation. Krejci v. Jonathan Furniture Co. (LIRC, 11/06/81).
An employe's good faith opposition to practices viewed as discriminatory is protected under the Act from retaliation even though the practices may not themselves be discriminatory. Informal opposition is entitled to the same protection as opposition which is expressed through a formal complaint filed with a federal or state agency. Herslof Optical v. DILHR (Leonard) (Dane Co. Cir. Ct., 03/28/78).
133.2 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Standards of proof
A claim of retaliation may be proven using either the direct or the indirect method of proof. Under the direct method of proof in a retaliation claim, a Complainant must show that he: (1) engaged in statutorily-protected activity; (2) suffered an adverse action taken by the employer; and (3) a causal connection exists between the two. Under the direct method, there are two types of permissible evidence: (1) direct evidence (i.e., evidence that does not require drawing an inference from evidence to the proposition that it is offered to establish); and (2) circumstantial evidence (i.e., evidence which does require drawing inferences). Circumstantial evidence consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence, none conclusive in itself but together composing a convincing mosaic of discrimination against the Complainant. To prove a claim of retaliation under the indirect method, the Complainant must establish a prima facie case of retaliation by showing that he: (1) engaged in statutorily-protected activity; (2) met the employer's legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly-situated employee who did not engage in statutorily-protected activity. A similarly-situated employee is one who is directly comparable to the Complainant in all material respects. If the Complainant establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action. If the employer meets its burden, the burden shifts back to the Complainant to demonstrate that the employer's reason is pretextual. If the Complainant has produced evidence that he was fired because of his protected activity, this is actual evidence of unlawful conduct (i.e., evidence that the firing was in fact retaliation for the Complainant's complaining about discrimination). Gunty v. City of Waukesha (LIRC, 03/31/10).
Retaliation, like other claims of allegedly discriminatory treatment, is appropriately analyzed utilizing the general framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Initially, the Complainant must establish prima facie proof of retaliation by showing that: (1) he engaged in statutorily-protected activity; (2) the Respondent took an adverse employment action; and (3) a causal connection existed between the two. If a prima facie case has been established, the Respondent must then articulate a legitimate, non-discriminatory reason for its actions. If the Respondent carries its burden of production, the Complainant then must show that the Respondent's asserted reasons were in fact a pretext for retaliatory conduct. Monroe v. Birds Eye Foods (LIRC, 03/31/10).
133.21 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Prima facie case
The Respondent rebutted the Complainant's prima facie case of retaliatory discharge by producing evidence that the Complainant's poor attendance was the reason for discharge. The Complainant, who bore the burden of showing that the Respondent's proffered reason was pre-textual, was unable to do so. The reason advanced by the Respondent had a basis in fact, provided a sufficient motivation for discharge, and appeared to be the actual motivation for discharge. The Complainant's tardiness was substantial; on nine occasions in two months she was late by 20 minutes or more, four of which were during her last two weeks of employment. Godfrey v. TK Oshkosh, LLC (LIRC, 01/16/14).
In a claim of retaliation under the Wisconsin Fair Employment Act, a complainant must show that a reasonable individual would have found the challenged action to be adverse. That is, the action might well have dissuaded a reasonable individual from opposing any discriminatory act under the Act or from making a complaint, testifying or assisting in any proceeding under the Act. There is no bright-line rule. Whether alleged discriminatory conduct is sufficiently adverse can only be determined upon careful examination of the facts and circumstances presented in each case. Kruschek v. Trane Co. (LIRC, 12/23/10).
Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions would form the basis of a discrimination suit. In this case, the Complainant failed to establish that a memo that was sent to the security director by her lieutenant constituted an adverse employment action. The Complainant alleged that the memo falsely accused her of being the subject of a large number of inmate complaints and of being unprofessional and demonstrating a lack of tact when working with inmates. The evidence failed to show that the memo cause the security director to form an unfavorable impression of the Complainant. The memo was an internal memo that was not made a part of the Complainant's personnel file. The memo had absolutely no effect on the Complainant's terms or conditions of employment. Gephart v. Department of Corrections (LIRC, 11/18/09).
The claim of retaliation, like other discrimination claims, may be proven using either the direct or the indirect method of proof. Under the direct method of proof in a retaliation claim, a Complainant must show that he: (1) engaged in statutorily-protected activities; (2) suffered an adverse action taken by the employer; and (3) a causal connection exists between the two. Under the direct method, there are two types of permissible evidence: (1) direct evidence, i.e., evidence that does not require drawing an inference from evidence to the proposition that it is offered to establish; and (2) circumstantial evidence, i.e., evidence which does require drawing inferences. Under the first type of direct evidence, the evidence essentially requires that the decision-maker admitted that his actions were based upon the prohibited animus. The circumstantial evidence type of case consists of ambiguous statements, suspicious timing, discrimination against other employees, and other types of evidence which may not be conclusive in themselves but which together compose a convincing mosaic of discrimination against the Complainant. Gephart v. Department of Corrections (LIRC, 11/18/09).
To prove a claim of retaliation under the indirect method of proof, the Complainant must establish a prima facie case of retaliation by showing that he: (1) engaged in statutorily-protected activity; (2) met the employer's legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly-situated employee who did not engage in statutorily-protected activity. If the Complainant establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action. If the employer meets its burden, the burden shifts back to the Complainant to demonstrate that the employer's reason was pretextual. Gephart v. Department of Corrections (LIRC, 11/18/09).
To establish a prima facie case in the retaliation context, a causal connection must be shown between the Complainant’s protected activity and an adverse employment action. In the context of a retaliation claim, sec. 111.322(3), Stats., makes it an act of employment discrimination "[to] discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice. . . ." Sec. 111.322(1), Stats., makes it an act of employment discrimination 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." If the subject action is not one of those specified in these statutory sections, the applicable standard is whether the action had any concrete, tangible effect on the Complainant’s employment status. A material adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Warren v. DHFS (Wis. Personnel Comm., 02/09/01).
In order to prevail on a claim of retaliation under the Wisconsin Fair Employment Act, a Complainant is required to show that he was subject to a cognizable adverse employment action. A material 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, a material loss of benefits, or other indices that might be unique to a particular situation. Vaughan v. UW (Wis. Personnel Comm., 09/07/00).
A prima facie of retaliation may be established by showing: (1) that the Complainant engaged in statutorily protected expression (i.e., the Complainant opposed a practice made unlawful under the Act, or made a complaint under the Act); (2) that the Complainant suffered an adverse action by the Respondent; and (3) that there is a causal link between the protected expression and the adverse action. If the Complainant establishes a prima facie case of retaliation, the Respondent may rebut the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse action. Finally, should the Respondent meet its burden, the Complainant then has the burden of proving that the Respondent’s proffered reasons are merely a pretext for discriminatory conduct. Sarazin v. W & G Transport (LIRC, 03/09/99).
In a retaliation case the employer's motivation is the ultimate issue. In order to establish a prima facie case of retaliation, the Complainant must show (1) that she was engaged in statutorily protected expression; (2) that she suffered an adverse action taken by the employer, and (3) that there was a causal link between the protected expression and the adverse action. The "causal connection" consists of evidence showing that a retaliatory motive played a part in the alleged adverse employment action. Callaway v. Madison Metro. School Dist. (LIRC, 11/27/96).
To establish unlawful retaliation for opposition, an employe must show (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. The causal connection can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).
In a retaliation case, the employer's motivation is the ultimate issue. In order to establish a prima facie case of retaliation, the employe must show (1) that the employe opposed an unlawful employment practice, (2) that the employe suffered an adverse action by the employer, and (3) that there was a causal link between the opposition and the adverse action. The employer can rebut the prima facie case by showing a legitimate non- retaliatory reason for the adverse action, and the employe can prevail by showing that the reason is a pretext. Roden v. Federal Express (LIRC, 06/30/93); Alexander v. Aldridge, Inc. (LIRC, 10/21/91); Frierson v. Ashea Indus. Systems (LIRC, 04/06/90).
In order to show a prima facie case of retaliation, a Complainant must show that: (1) the Complainant engaged in a statutorily protected expression; (2) the Complainant suffered an adverse action by the employer; and (3) a causal link exists between the protected expression and the adverse action. The presumption created then may be rebutted by the Respondent's articulation of a legitimate, non-retaliatory reason for its action. If the Respondent meets that burden of production, the Complainant must present evidence that the proffered reason was pretextual. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).
The Complainant may establish a prima facie case of retaliation by showing that she engaged in protected activity, that she was thereafter subjected to an adverse employment action, and that a causal link exists between the two. Chandler v. UW-LaCrosse (Wis. Personnel Comm., 08/24/89).
An inference of retaliation may be established by showing that a Complainant engaged in protected activity, was subjected to an adverse employment decision, and that there is a causal connection between these two facts. Jensen v. F. W. Woolworth Co. (LIRC, 05/22/87).
A Complainant who was not rehired established a prima facie case by showing that she had filed a discrimination complaint concerning her layoff and that the complaint was pending at the time of her failure to be recalled. Ealey v. Wisconsin Brick & Block (LIRC, 07/19/83), aff'd. sub nom. Ealey v. LIRC (Dane Co. Cir. Ct., 08/09/84).
A prima facie case of retaliatory refusal to rehire is established by showing that the employe engaged in a protected activity, that the employer was aware of that activity, and that the employer thereafter refused to rehire the employe. McMillan v. LIRC (Greyhound Lines) (Ct. App., Dist. IV, unpublished decision, 05/02/80).
It was not necessary for a discharged employe to show that a libelous letter of reference resulted in harm to prevail on her charge that it was sent in retaliation for her discrimination complaint. Pederson v. LIRC (Cepek Constr.) (Dane Co. Cir. Ct., 09/11/78).
133.22 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Standards of proof; Employer knowledge of oppositional activity
Evidence of the employer's awareness of a Complainant's oppositional activity must be sufficient to support a finding that the individuals who decided to take action against the Complainant were aware of the oppositional activity, or that other employees who were aware of the activity induced the decision-makers to take action against the complainant. Howard v. Lena's Food Market (LIRC, 01/30/14).
In a retaliation case, the required causal connection between the employee's conduct and the employer's adverse action is not established unless it is proved that the employer was aware of employee's conduct. Here, the only opposition to discrimination was communicated to an individual who was not an employee or agent of the Respondent and who did not relay the opposition to the Respondent. Nielsen v. Sports Clips (LIRC, 03/28/14)
The Complainant's complaint to her supervisors that a co-worker told her she was “bipolar” and “should be checked for ADD” was not regarded by the Respondent as a complaint of sex discrimination, since the remark had nothing to do with her sex and the Complainant never told the Respondent that she believed it was. Holmes v. Manitowoc County Sheriff's Dept. (LIRC, 9/30/14).
The mere fact that an employer has taken an adverse action against an employee does not warrant an inference that the employer knows the employee engaged in a protected activity. Rather, the Complainant must affirmatively show that the employer was aware or had reason to be aware of his protected conduct. Sabol v. State of Wisconsin (LIRC, 4/24/14), aff'd. Sabol v. LIRC (Racine County Cir. Ct., 06/12/15).
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 and that it understand the activity to be related to alleged discrimination. The Complainant's statement that she was in contact with an attorney and with the State of Wisconsin and was planning legal action, without mention of an equal rights claim or sexual harassment, was not sufficient to put the Respondent on notice that the complainant was engaging in protected conduct. Rhinehart v. A&M Plumbing (LIRC, 6/7/13), aff'd, Rhinehart v. LIRC and A&M Plumbing, Dec. 12, 2013 (Adams Co. No. 13CV118).
If an employer does not know that an employee has made a complaint of discrimination, it obviously cannot be motivated by such knowledge in the conduct it undertakes. Crook v. County of Vernon(LIRC, 02/23/04).
The Complainant complained to one of his supervisors that, although he had been required to wear dress shoes rather than tennis shoes, a female employee was allowed to dress inappropriately at work. Evidence in the record established that the Respondent was aware of the Complainant’s complaint that he was being treated differently than another employee, but the evidence did not establish that the Respondent was aware that the Complainant believed this different treatment was based on his sex. Therefore, there was no prohibited retaliation. Moller v. Metavante (LIRC, 11/13/03).
If an employer does not know that an employe has made a complaint of discrimination, it obviously cannot be motivated by such knowledge in the conduct it undertakes. Aken v. Blood Center of Southeastern Wis. (LIRC, 12/23/98).
To violate the prohibition against retaliation, the Respondent must have a belief that the Complainant is raising some kind of claim that discrimination is occurring. Where the Complainant in this case told management that he was getting tired about being teased about having sex with animals, this was insufficient to prove that he had made known to the Respondent that he was raising a claim of alleged sexual harassment. Matthews v. Bassett Bedding (LIRC, 10/27/93).
In order to violate the prohibition against retaliation, an employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. If an employer does not have such a belief, it obviously cannot be motivated by such a belief in the conduct it undertakes. Thus, it is an essential element of a claim of retaliation that the Complainant prove that the employer was aware that the Complainant engaged in protected activities. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).
Retaliation is conduct which the statute condemns solely because of the motivation which underlies it. The motive is anger or resentment against a person because the person has opposed a practice they believe to be discriminatory. In order to violate the prohibition against retaliation, the employer must have a belief that the person retaliated against is raising some kind of claim that discrimination is occurring. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).
Although the Complainants were terminated at least in part for conduct in opposition to practices of their employer, they failed to prove that they had been retaliated against in violation of the Act where they failed to demonstrate that they had ever made it known that their opposition was based on their belief that the practices were discriminatory under the Act, and where the evidence demonstrated that the employer never understood the Complainants to be acting in opposition to perceived discrimination. Keller v. City of Brodhead (LIRC, 04/29/87).
A person alleging retaliation because of a previous complaint he had filed against the employer must show that the employer knew of the complaint. Acharya v. University of Wis. (LIRC, 01/19/82).
133.23 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Proof; Establishing causal connection between oppositional activity and adverse employment action
Evidence of tardiness and no-shows emerged as a non-discriminatory reason for the Complainant's discipline and discharge during the Complainant's case. The Complainant made a sufficient showing of a causal connection, however, by presenting evidence of close timing between her complaints of sexual harassment and her discipline and subsequent termination for poor attendance, and by plausibly denying that she was absent without notice or late to work immediately prior to her discharge. The employer was not present at hearing to rebut the Complainant's evidence regarding her attendance. Howard v. Lena's Food Market (LIRC, 01/30/14).
Since intent is a pertinent and necessary inquiry in a discrimination or retaliation case, the question of whether a Respondent's asserted non-retaliatory reason is objectively correct can be considered irrelevant if it appears that the Respondent genuinely believed it to be true. Engen v. Harbor Campus (LIRC, 02/22/08).
Although proximity in time may create an inference of a causal connection, it is not sufficient by itself to establish such a connection. This is true whether the issue is one of probable cause or the merits of a charge. Deal v. D&S Manufacturing (LIRC, 06/20/08).
A causal connection between oppositional activity and an adverse employment action may be inferred from the proximity in time between the protected action and the alleged retaliation. However, a Complainant’s establishment of a statutorily protected expression, and adverse action by the Respondent, and the existence of a causal connection between the protected expression and the adverse action only presents a rebuttable presumption that the Act has been violated. A Respondent may rebut this presumption by articulating a legitimate, non-retaliatory reason for its actions. Thus, while closeness in time may indicate the existence of a causal connection between protected expression and an adverse action, this does not establish unlawful discrimination in and of itself. Potts v. Magna Publications (LIRC, 02/27/01).
The timing of a complaint and an adverse employment action against the employee does not in itself establish retaliation. No retaliation was found where there was substantial evidence that the employer had a legitimate, non-discriminatory reason for disciplining the Complainant. Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997).
To establish unlawful retaliation for opposition, an employe must show (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. The causal connection can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).
A causal connection between a protected activity and an adverse action can be inferred from a close proximity in time between the protected activity and the adverse action. Horton v. Hopkins Chemical Co. (LIRC, 06/08/92), aff'd. Dane Co. Cir. Ct., 04/28/93.
A causal connection between oppositional activity and an adverse employment action may be inferred from the proximity in time between the protected action and the alleged retaliation. Alternatively, the Complainant can prove causation by providing direct evidence of retaliatory motive. Frierson v. Ashea Indus. Systems (LIRC, 04/06/90).
Where several months elapsed between the filing of a third party's complaint of discrimination and the issuance of an initial determination which listed the Complainant was a person interviewed, and where more than four weeks had elapsed between that initial determination being issued and the discharge of the Complainant alleging retaliation, all of those facts negated the inference that the Complainant was discharged in retaliation for being a person interviewed for a pending discrimination case, because the events did not follow closely in time. Wausau Hospital Center v. LIRC (Marathon Co. Cir. Ct., 11/27/85).
The discharge of an employe followed her protests about discrimination within such a short period of time (four to five months) that retaliatory motivation could reasonably be inferred. Weir v. A.E. Moore (LIRC, 02/20/80).
133.3 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Retaliation by former employer
The Complainant sought to prove that a former employer retaliated against him by giving bad references to his prospective employers, but his only evidence was a report from a reference-checking service purporting to give the former employer's answers to reference questions. The report was hearsay, and although it might have been a record of regularly conducted activity under the hearsay exception of Wis. Stat. § 908.03(6), the Complainant failed to provide a foundation for the report through the testimony of the custodian of the report or another qualified witness. Although it may be admissible, hearsay evidence cannot be the entire support for a critical finding of fact. John Germaine v. Sussek Machine Corp. (LIRC, 02/13/14).
Although anti-retaliation provisions of the WFEA extend to former employees, a nexus with employment is essential to find that retaliatory actions are covered. If the complainant is alleging that the retaliatory action adversely affects prospects for future employment, the adverse action must have a significant and identifiable employment connection to the former employee's opportunities for future employment. deMoya v. Wisconsin Department of Veterans Affairs (LIRC 12/12/13).
While the retaliatory use of a negative evaluation to affect a former employee’s job opportunities can form the basis of a discrimination complaint, such an allegation cannot be piggy-backed onto a separate complaint merely by characterizing it as evidence going to “damages” following a finding of liability. Swanson v. County of Chippewa (LIRC, 05/11/07).
The Complainant stated a claim for relief under the Wisconsin Fair Employment Act where she alleged that her former employer unlawfully retaliated against her by obtaining a restraining order against her. The restraining order, which prevented the Complainant from coming on the Respondent's campus or having contact with employees of the Respondent, would affect her opportunities not merely to be employed by the University, but also opportunities with respect to other employers which interacted with University employees or who had a presence on the University's campus. Garner v. UW-Milwaukee (LIRC 02/10/06).
The Complainant stated a claim for relief under the Wisconsin Fair Employment Act where she alleged that the Respondent had retaliated against her by filing a criminal complaint against her alleging that she had made harassing phone calls. However, while the threat to make, or the making of, a criminal complaint alleging that a former employee made harassing phone calls may be unlawful retaliation, it may also be lawful if it was done in good faith, without the intent to retaliate, based on a genuine belief about the matters being alleged. Garner v. UW-Milwaukee (LIRC 02/10/06).
The Complainant alleged that, following her discharge by the Respondent, the Respondent made comments to one of its employees (who was a friend of the Complainant’s) which caused her stress. The complaint did not include any allegation that the alleged post-discharge harassment (which allegedly consisted of asking the Complainant’s friend questions about personal topics, such as where the Complainant worked and what her vacation plans were) had an adverse effect upon the Complainant’s employment opportunities. Even if the Respondent’s actions actually resulted in the type of stress claimed by the Complainant, there was no significant connection between those actions and an employment relationship, nor did the Respondent’s actions impair the Complainant’s future employment opportunities. Accordingly, the complaint was properly dismissed by the Division. Riley v. Van Galder Bus Co. (LIRC, 05/24/99).
The Complainant's claim that the Respondent released the terms of a confidential settlement agreement does not constitute a valid claim of retaliation under the Wisconsin Fair Employment Act. The Respondent's release of confidential settlement information had no relationship whatsoever to the Complainant's employment. Peck v. Walworth County (LIRC, 09/27/96).
Commencing a legal action against an employe or former employe because they have made a charge of discrimination can be a violation of the anti-retaliation provisions of the Wisconsin Fair Employment Act. However, the Act's anti-retaliation provision does not necessarily make unlawful an employer's attempts to judicially enforce an alleged settlement agreement if the enforcement action had a colorable basis and was brought in good faith and without any punitive motive. Stillwell v. City of Kenosha (LIRC, 09/29/95).
The anti-retaliation provision of the Wisconsin Fair Employment Act extends to former employes. In this case, the Respondent filed an unfair labor practice charge before the Wisconsin Employment Relations Commission (WERC) against the Complainant, who at the time was no longer employed by the Respondent, but was proceeding to a hearing on a complaint of handicap discrimination against the Respondent. The Complainant alleged that the Respondent's filing of the charge before the WERC constituted unlawful retaliation for protected activity under the Wisconsin Fair Employment Act. However, the Complainant's claim of retaliation was not related to an employment relationship and, thus, fails to come within the scope of the Wisconsin Fair Employment Act. There was not a significant connection between the alleged adverse action by the Respondent and the Complainant's employment opportunity. The gist of the WERC claim was that the Complainant should not be allowed to proceed with his handicap discrimination claim because the issues decided in that claim were already decided by an arbitrator. The WERC complaint did not have negative implications with respect to the Complainant's activity at the workplace or his integrity as a human being. Thus, the Respondent's action could not damage the Complainant's reputation or impair his future employment opportunities. Seeman v. Universal Foods Corp. (LIRC, 09/22/94).
The Complainant alleged that the Respondent had retaliated against her in violation of the Wisconsin Fair Employment Act by including a defamation claim against her in a civil lawsuit already pending between the parties. The Respondent has a constitutionally protected first amendment right to bring a defamation claim in state court; however, the suit must be well-founded. There are two elements required to establish unlawful retaliation in such circumstances: (1) the lack of a reasonable basis for the state court lawsuit, and (2) a retaliatory motive. Thus, the Department must make a specific finding as to whether the lawsuit was well-founded before determining whether the lawsuit was filed in retaliation against the Complainant. If the Respondent presents a reasonable basis to the Department which demonstrates that the state court lawsuit raises genuine issues of material fact, then the agency should not proceed any further with a subsequent retaliation complaint because there are legitimate issues joined in the circuit court lawsuit. If, on the other hand, the Department finds that the defamation action is plainly foreclosed as a matter of law or is frivolous, the Department may proceed on the retaliation complaint. State of Wisconsin v. DILHR (Dane Co. Cir. Ct., 04/11/94).
An adverse action can, in some circumstances, be subject to the anti- retaliation provisions of the Wisconsin Fair Employment Act even though its relationship to an employment opportunity is only indirect. For example, anti-retaliation provisions cover the giving of bad references to an ex-employe in retaliation for a complaint of discrimination by that employe. Filing a lawsuit in tort against an Equal Rights Complainant seeking damages for defamation or malicious prosecution may also be retaliatory. Similarly, threatening an Equal Rights Complainant with criminal charges for allegedly making threatening phone calls to the employer could also be subject to anti-retaliation provisions. In each of these cases there is some effect upon future employment opportunities of the Complainant. In this case, however, the action which the Respondent is alleged to have engaged in because of a retaliatory motive -- contacting the City Recreation Department to report that the Complainant was not a resident of the City in whose softball league she was participating -- bears no conceivable relationship whatsoever to any employment opportunity, past, present, or future. While the motivation for the action arose in an employment-related context, the action itself had no relationship to employment and it was, therefore, not prohibited retaliation. Pufahl v. Niebuhr (LIRC, 08/16/91), aff'd. sub nom. Pufahl v. LIRC (Dane Co. Cir. Ct., 06/16/92).
133.4 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Cases
The Respondent did not retaliate against the complainant by denying him a severance package that was offered to him (and others, who accepted the terms) on the condition he waive his prior discrimination complaints filed against the Respondent, when the Complainant refused to agree to the waiver.� The Complainant had no independent entitlement to the severance pay and the Respondent was within its rights to attach such conditions.� Davis v. Time Warner Cable of Southeast Wisconsin (LIRC, 8/16/13).
The Complainant need not show that the Respondent�s actions resulted in tangible harm in order to establish unlawful retaliation.� The Respondent�s actions in telling the Complainant his chances for a promotion depended on withdrawal of his pending discrimination complaint amounted to unlawful retaliation.� Valyo v. St. Mary�s Dean Ventures Inc. (LIRC, 1/29/13).
The Complainant contended that she had opposed sexual harassment in the workplace when she told one of the Respondent's owners that he needed to 'watch it with these girls,' and that he was making them 'uncomfortable.' This statement was too vague to put the Respondent on notice that the Complainant believed that he was engaging in any conduct that violated the law. Freeman v. Animal Motel (LIRC, 07/18/11).
The Complainant alleged that the Respondent retaliated against her after she went over the head of the store manager to complain about her Thanksgiving holiday schedule. This was not an activity which was protected by the Wisconsin Fair Employment Act. Keene v. Menard (LIRC, 05/08/08).
The Complainant failed to establish that the Respondent would reasonably have been aware that she was raising a claim of sexual harassment where she testified that she believed that she told a manager not to touch her anymore. She did not expressly state that she believed such touching (which consisted of hugging her and rubbing her shoulders and arms) constituted harassment, and it is not reasonably implicit from the evidence that the manager should have interpreted her statement that way. The Complainant also testified that she told the manager she did not feel comfortable with comments he had made about her body and asked him not to say that type of thing to her. (These comments consisted of his telling the Complainant that she was not fat and looked good when she jokingly referred to herself as 'plump,' and a similar comment made while she was sharing her emotional distress regarding a personal issue and apparently willingly accepted the manager's expressions of sympathy and empathy.) Given the context, the Complainant's statement could have reasonably been interpreted by the manager as indicating that discussion of her weight made her uncomfortable, that discussion of weight or looks was unprofessional or inappropriate in the workplace, or that she no longer needed reassurances from him because she was no longer feeling distressed and emotional about her personal issues. As a result, the Complainant failed to sustain her burden of proving that she had engaged in a protected opposition activity. Engen v. Harbor Campus (LIRC, 02/22/08).
A complaint was properly dismissed for failure to state a claim for relief under the Wisconsin Fair Employment Act where the wrong which the complaint alleged had no significant connection to any employment relationship or employment opportunity for the Complainant. The Complainant, a former employee of a University, alleged that the University's police department did not properly handle or investigate a criminal complaint which she had made. This had nothing to do with employment, but instead related to a service (police protection) provided by the University to the public at large. There was no reasonable basis to believe that the University's failure to investigate the Complainant's complaint about alleged criminal conduct by someone else would have any significant connection to any employment relationship or that it would impair the Complainant's future employment opportunities. Garner v. UW-Milwaukee (LIRC 02/10/06).
The retaliation provisions of the Wisconsin Fair Employment Act do not cover the Complainant’s claim that her request to have the Respondent accommodate her disability constituted a protected activity. Bjork v. DFI (Wis. Personnel Comm., 11/14/01).
Independent contractors are not protected by the Wisconsin Fair Employment Act. In this case, the relationship contemplated by the parties did not involve an employe-employer relationship "employment opportunity." Therefore, the Respondent could not have retaliated against the Complainant for opposition to alleged discrimination in violation of the Act by refusing to enter into an independent contractor relationship unless the Complainant signed a release of his employment claims against the Respondent. Weier v. Heiden, Inc. (LIRC, 02/05/98).
Proof of unlawful retaliation for opposition must include proof that the employer actually has 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. 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. Where the Complainant made allegations of discrimination without believing in the truth of those allegations, the "opposition" is not protected under the Act. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).
Where the employe actually filed a charge and verbally notified the employer of that action, the employe's actions are covered by the "participation" protection of the Act. It is not necessary that the Complainant prove even a reasonable good faith belief in the validity of the charges in the complaint. The participation protection extends even to those who have filed false and malicious charges. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).
The Complainant established a case of retaliation in terms and conditions of employment, where she showed that she rejected unwelcome sexual advances from her supervisor and her supervisor subsequently denied her previously approved job training and shift changes, harassed her about her expense report and disciplined her, all for no apparent good reason. Roden v. Federal Express (LIRC, 06/30/93).
The Complainant stated a claim for relief under the Wisconsin Fair Employment Act when she alleged that she was retaliated against by the Respondent when it filed a civil action in circuit court seeking to enforce a settlement agreement which the Complainant had previously refused to sign. Stillwell v. DILHR (Ct. App, Dist. II, unpublished decision, 03/17/93).
The Respondent did not unlawfully retaliate against the Complainant because she had filed a complaint of discrimination with the Equal Rights Division. Although the Complainant's hostility toward management was cited by the Respondent as a reason for its discharge decision, the reference was not to her actions in opposing perceived discrimination, but to her day-to-day resistance to directions by her immediate supervisors. This was not protected conduct on the Complainant's part. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93).
The Complainant did not state a claim for relief for retaliation under the Wisconsin Fair Employment Act where she alleged that the Respondent retaliated against her for filing a prior charge of discrimination by asking her a series of personal and allegedly irrelevant questions during a deposition. It would be going beyond a fair liberal construction of the Wisconsin Fair Employment Act to hold that "terms, conditions or privileges of employment," encompasses an employer's line of questioning at a deposition taken in connection with the employe's civil service appeal of a disciplinary action. Larsen v. Department of Corrections (Wis. Personnel Comm., 07/11/91).
A causal connection was established between the Complainant's filing a complaint of discrimination and the Complainant's discharge four months later because of: (1) the proximity in time of the two actions, (2) a supervisor's comment that the Complainant probably would be discharged for the complaint, and (3) the Respondent's attempt to settle the discrimination case at the time the Complainant was discharged. Frierson v. Ashea Indus. Systems (LIRC, 04/06/90).
The Respondent discharged the Complainant because he had filed prior complaints of discrimination against the Respondent and because he opposed a practice he believed discriminatory. The Respondent's stated reason for discharging the Complainant was that he knowingly allowed another employe to work while under the influence of alcohol. This asserted reason was found unworthy of credence because the Respondent did not discharge the Complainant until one month after the event in question and during that time the Equal Rights Division began its investigation of one of the Complainant's discrimination complaints. Savage v. Stroh Container (LIRC, 09/20/89)
In a case in which it was concluded that the Complainants' opposition to their employer's practices was never known to the employer as being opposition based on perceived discrimination, even if it was assumed that the Complainants had in fact been retaliated against because of opposition to discriminatory practices, the extremely threatening and disruptive nature which their opposition took deprived it of protected status under the Act and the opposition became an independent and nondiscriminatory reason for their discharge. Keller v. City of Brodhead (LIRC, 04/29/87).
The decision of the Equal Rights Division that a chief of police and a management labor relations consultant acted with a retaliatory motive in discharging the Complainant was reversed. Neither the chief of police nor the management labor relations consultant had the authority to discharge a police officer. The Police and Fire Commission, which is a statutorily-granted body totally independent from the police department, is expressly granted the power to remove officers, according to state law. Since the Equal Rights Division found that the members of the Police and Fire Commission were not motivated by a retaliatory motive, the Complainant’s case should have been dismissed. City of River Falls Police Dept. v. LIRC (Pierce Co. Cir. Ct., 01/30/86).
Statements by an employe's supervisor that the employe would have been recalled to work after a job layoff had she not filed a complaint of discrimination against the employer are relevant to the issue of retaliation. Anderson v. Marion Plywood, Inc. (LIRC, 06/18/84).
The employe was discriminated against in retaliation for having assisted another employe with her charge of discrimination when his merit review and salary increase were delayed. Resch v. Stowe Woodward Indus. (LIRC, 04/16/82).
The employer retaliated against an employe by refusing to offer her a position because her sex discrimination complaint was pending before DILHR. Hayward Community Schools v. DILHR (Hedin) (Sawyer Co. Cir. Ct., 05/04/82).
The employe presented a prima facie case of retaliation by showing that the employe's decision not to renew his deputy card was made at the same time his discrimination complaint was pending. The allegations of poor performance advanced by the employer were pretextual since he had served six years without serious incident. Algozino v. Waupaca County (LIRC, 03/24/81).
Where an employe was terminated for opposing her employer's discriminatory policy regarding temporary disability leave for pregnancy and for supporting a fellow employe's challenge of that policy, her discharge was retaliation. Berg v. La Crosse Cooler (LIRC, 03/21/81).
The employe was discriminated against in retaliation for having filed a race discrimination complaint when she was harassed and intimidated by supervisory personnel and was denied a temporary assignment to a better paying position. Royston v. Geuder, Paeschke & Frey (LIRC, 10/09/79).
Where a layoff occurred after DILHR had issued an initial determination of probable cause, an inference was raised that the layoff was retaliatory. However, the employer overcame that inference by showing: 1) a general decline in business, 2) a practice of not replacing employes who quit or retired, and 3) execution of the layoff in accordance with the contract. Allison v. Jessen's Cleaners (DILHR, 06/14/74).
133.9 Retaliation for exercise of rights under the WFEA (s. 111.322(3)); Miscellaneous
The Complainant established that she was discharged for opposing sexual harassment. However, she was not entitled to compensation in lieu of reinstatement under sec. 111.39(4)(c), Stats., because compensation in lieu of reinstatement may be awarded only on proof of a discharge for opposing a discriminatory practice under sec. 111.322(2m), Stats. Clark v. Golden Basket Restaurant (LIRC, 05/28/96).