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702.20 Honesty testing device
Requiring an applicant to certify that his answers to an exam are true does not constitute the administration of an honesty testing device as defined by the FEA. McCoic v. Wis. Lottery, 88-0157-PC-ER, 12/17/92
702.22 Marital status
"Marital status," as defined in the Fair Employment Act, includes the identity of a person's spouse, citing Ray v. DHSS & Group Insurance Board, 83-0129-PC-ER, 10/10/84, and Earnhardt v. DHSS, 89-0025-PC-ER, 11/19/92. Purifoy v. DOC, 92-0044-PC-ER, 12/22/94
The Commission has jurisdiction over a complaint alleging discrimination based on marital status filed by an employe who was denied "single coverage" health insurance because complainant's spouse was also a state employe and was already enrolled in a "family coverage" health insurance plan. The Commission held that the complainant was entitled to protection from discrimination under the Fair Employment Act even though the action complained of was not based on the fact he was a married person but on the fact that he was married to another employe of the State of Wisconsin. Ray v. DHSS & Group Insurance Board, 83-0129-PC-ER, 10/10/84; affirmed by Dane County Circuit Court, Ray v. Pers. Comm., 84-CV-6165, 5/15/85
The definition of marital status must be read broadly enough to include the identity of the spouse. Therefore, the Commission has jurisdiction to hear a complaint based on the fact the complainant is married to an employe of the State of Wisconsin. Ray v. DHSS & Group Insurance Board, 83-0129-PC-ER, 10/10/84; affirmed by Dane County Circuit Court, Ray v. Pers. Comm., 84-CV-6165, 5/15/85
702.23 Military reserve membership
An allegation that complainant 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 under the FEA. The intent of including guard or reserve membership as a FEA protected status was to protect individuals from being discriminated against because of their membership in the guard or reserve, not to prohibit the state as employer from complying with a long-standing state law (§230.32) requiring the restoration of employes returning from military leave. Gandt v. DOC, 91-0168-PC-ER, 1/8/92
702.24 National origin/ancestry
The Commission declined to dismiss a complaint where it could not conclude as a matter of law that there was no possibility the respondent's policy of denying faculty exchanges with the Republic of South Africa could be deemed an action taken on the basis of national origin. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/4/86
An agency's refusal to hire a person as a limited term employe because her father was a state employe is not within the meaning of "ancestry" as that term is used in §111.32(5)(a), Stats. Kawczynski v. DOT, 80-181-PC, 11/4/80
702.26 Occupational safety and health
Complainant, an officer at a correctional institution, was not required to file a request with the Department of Commerce about health or safety issues at work in order to engage in a protected activity under the public employe safety and health law. Complainant’s action of reporting to management that a sergeant had attempted to incite inmates against complainant and complainant’s subsequent report to management that she had been warned by an inmate to "be careful" constituted the exercise of rights under the statute, citing Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89. Cygan v. DOC, 96-0167-PC-ER, 9/10/97
Workplace violence is regulated under the general duty clause of the federal Occupational Safety and Health Act. Because the comparable state law (§101.055, Stats.) was intended to give state employes "rights and protections. . . equivalent to those granted to employes in the private sector" under federal law, respondent’s motion to dismiss complainant’s public employe safety and health claim relating to workplace violence was denied. Cygan v. DOC, 96-0167-PC-ER, 9/10/97
Complainant’s occupational safety and health retaliation claim was not defeated by his failure to report unsafe conditions to the Department of Commerce, citing Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89. Complainant had filed an incident report with management and his union of unsafe working conditions. Leinweber v. DOC, 97-0104-PC-ER, 8/14/97
Workplace violence is regulated under the general duty clause of the federal Occupational Safety and Health Act and, because Wisconsin’s public employe safety and health provisions were intended to give covered state employes the same protections as employes in the private sector, complainant’s incident report to management and his union relating to threatening telephone calls and the absence of any staff member, other than complainant, a social worker, on a floor at a hall in the Drug Abuse Correctional Center, related to dangers protected under state law. Leinweber v. DOC, 97-0104-PC-ER, 8/14/97
The Commission lacked jurisdiction over a complaint arising from conduct of respondent’s counsel in another case pending before the Commission, where counsel disseminated, to the Commission and to complainant, complainant’s medical records as part of its answer to the complaint. The information was provided as part of the administrative proceeding rather than as part of the ongoing employe/employer relationship between complainant and respondent, citing Larsen v. DOC, 91-0063-PC-ER, 7/11/91, and Martin v. DOC, 94-0103-PC-ER, 12/22/94. Complainant alleged FMLA violation as well as retaliation under the whistleblower law, under the public employe safety and health provisions and for having previously filed a complaint of discrimination. Neither the whistleblower law nor the public employe safety and health provisions is more extensive than the Fair Employment Act as to this issue. Marfilius v. UW-Madison, 96-0047-PC-ER, 5/14/96
702.30 Retaliation
Complainant's alleged request for respondent to stop the "probe" of his mental health potentially could be characterized as opposing a "discriminatory practice" within the meaning of §111.322(3), Stats. Prochnow v. UW (La Crosse), 97-0008-PC-ER, 8/26/98
Although the pleading requirements of a complaint of discrimination/retaliation are extremely minimal, where respondent had filed a motion to dismiss which specifically cited complainant’s failure to identify a protected fair employment activity and, even so, complainant did not identify in his written response to the motion any protected fair employment activity and none could be fairly implied, the FEA charge should be dismissed. Pfeffer v. UW (Parkside), 96-0109-PC-ER, 3/14/97
Complainant had no basis to pursue a fair employment retaliation claim where the grievances she filed and those of her boyfriend were not proceedings under subch. II, ch. 111, Stats. (Note: the alleged discriminatory acts pre-date April 28, 1990, the effective date of 1989 Wis. Act 228 which expanded the prohibition against retaliation.) Schmit (Klumpyan) v. DOC, 90-0028-PC-ER, 91-0024-PC-ER, 9/3/92
Complainant's allegation, that respondent believed her boyfriend, a co-worker, filed many union grievances and complaints and, therefore, complainant would engage in similar activities, fell within the scope of §111.322(2m)(d), Stats. Schmit (Klumpyan) v. DOC, 90-0028-PC-ER, 91-0024-PC-ER, 9/3/92
Complainant's prior contractual grievance regarding respondent's alleged refusal to compensate for holiday pay related to the enforcement of a right to recover wages due as provided in §109.03, Stats., which serves as a protected activity under §111.322(2m)(a), Stats. The grievance could serve as a basis for complainant's claim that respondent's decision not to continue her medical leave constituted FEA retaliation. Complainant's other prior grievance relating to her attire was not a protected activity, however. Schmit (Klumpyan) v. DOC, 90-0028-PC-ER, 91-0024-PC-ER, 9/3/92
Complainant assisted other individuals in a proceeding filed under the Fair Employment Act when he provided advice to three black males who had not passed a state examination, helped them contact the ACLU and paid the fee necessary for them to retain an attorney and where the three unsuccessful examinees then filed actions in Federal Court as well as actions with the Personnel Commission including a complaint of discrimination. Poole v. DILHR, 83-0064-PC-ER, 12/6/85
The Commission has jurisdiction over a complaint of discrimination on the basis of retaliation for having opposed discriminatory practices as to race, or for having filed a complaint of race discrimination. (Note: This case involved a charge of discrimination filed before the effective date of Chapter 334, Laws of 1981, which made this explicit, see §111.322(3), Stats. (1981-82).) Lott v. DOR, 81-PC-ER-71, 3/4/83
Where the complainant had published in a professional journal an arguably controversial commentary on an article on prostitution in Nevada, this was not covered by §111.32(5)(g)2, Stats., "... opposed any discriminatory practices under this section or because ... has made a complaint, testified or assisted in any proceeding under this section." Rubin v. UW, 78-PC-ER-32, 2/18/83
702.32(2) Inclusion of sexual harassment
Two alleged references by a program manager to "choking this chicken" as well as hand gestures by the same program manager mimicking masturbation, all made during the same meeting with complainant and two others, were not sufficiently severe or pervasive to satisfy the statutory definition of sexual harassment. The statements were mere offensive utterances which occurred on the same day. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Sexual harassment or sexual advances by supervisory employes may constitute discrimination under the Fair Employment Act, citing Hamilton v. DILHR, 94 Wis. 2d 611 (1980). Glaser v. DHSS, 79-PC-ER-63, 79-66-PC, 7/27/81
702.50 Whistleblower (subch. III, ch. 230, Stats.)
Filing a complaint of whistleblower retaliation is itself a protected activity under the whistleblower law. Therefore, a disciplinary action threatened or imposed after respondent learned of complainant's charge of whistleblower retaliation could constitute illegal retaliation under the whistleblower law. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Even though complainant had not submitted copies of the written disclosures that served as the basis for his complaints of retaliation, he described the disclosures in a manner that was sufficiently specific to withstand respondent's motion to dismiss for failure to specify the "information " he had disclosed. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Qualifying disclosures under the whistleblower law need not be made to a first-line supervisor in order to qualify as a disclosure to a supervisor within the meaning of §230.81(1)(a), Stats. Qualifying disclosures may be made instead to a second-line supervisor, third-line supervisor, or higher level supervisor in the employe's supervisory chain of command. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
When a faculty member is the "employe" making a whistleblower disclosure, it is reasonable to interpret "supervisor" to include the campus chancellor, the college dean and the department chair of the department containing the employe's position. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged that respondent had removed his secretary, i.e. denied him all secretarial services, respondent's alleged conduct qualified as a disciplinary action. Respondent's motion to dismiss was denied as to this allegation. However, complainant's allegation that respondent removed a particular photocopy machine, but continued to provide him with photocopying options, was not considered a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged conduct of removing complainant from his role as a faculty advisor to a student organization related to the "removal of any duty" under §230.80(2), Stats., and fell within the scope of a disciplinary action. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged respondent refused to pay him for working with a visiting professor, it was comparable to an allegation that complainant's pay had been reduced, thus having the effect of a penalty within the scope of a disciplinary action. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a faculty member, his whistleblower allegation that respondent had threatened to remove his endowed chair fit within the scope of a disciplinary action. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged that respondent did not promptly respond to his proposal that an artist serve as "artist in residence for a few days," the allegation did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged that respondent did not adequately respond to efforts to have several students from a foreign university attend UW-Whitewater, the alleged conduct did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Complainant's whistleblower allegation that campus administrators tried to convince a third party to commence a civil action against complainant was not a consequence commonly associated with job discipline, so it did not satisfy the requirement of disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of reminding complainant that all guest editorials had to be coordinated through the administration did not rise to the level of a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Alleged actions taken by complainant's superiors (or at their direction) to steal a fax sent to complainant, flatten the tires on complainant's car, steal his cell phone from his office, leave anonymous and derogatory notes in complainant's office, vandalize his car, prevent complainant from retrieving his personal belongings, and to take a bottle of copy machine toner that complainant had purchased, all allegedly in response to his protected activities, constituted "physical harassment" under §230.80(2)(a), Stats. Respondent's motion to dismiss was denied as to those allegations. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of responding inadequately to complainant's request relating to a public expenditure was not a disciplinary action where complainant's request was made "as a taxpayer." The allegation did not involve the employment relationship. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged statement that personnel files and records of individual faculty members were public documents and were available for inspection upon demand was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of making a notation on a document did not rise to the level of a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of completely barring complainant from using the university's mail system rose to the level of a disciplinary action, assuming the complainant alleged it had a drastic effect on his ability to perform his responsibilities as a member of the faculty and that it was taken in response to complainant's protected activities. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of asking complainant to clarify whether complainant's activities in Cuba were undertaken as a private citizen or as a representative of the respondent was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged activity in the nature of a public criticism by an employer of an employe's or group of employes' approach to a controversial issue is outside the scope of verbal or physical harassment, citing Kuri v. UW (Stevens Point), 91-0141-PC-ER, 4/30/93. Administration officials were quoted in two newspaper articles relating to the complainant, a faculty member. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a member of the faculty, respondent's alleged action of temporarily suspending complainant's photocopying privileges at the campus library until respondent reviewed complainant's justification for his copying requests was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a faculty member, respondent's alleged action of failing to support or approve complainant's request for a one year sabbatical rose to the level of a disciplinary action. Respondent's motion to dismiss was denied as to this allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a faculty member, respondent's alleged action of removing complainant's printing and labeling privileges rose to the level of a disciplinary action, assuming complainant alleged it had a drastic effect on his ability to perform his responsibilities and assuming it was taken in response to complainant's protected activities. Respondent's motion to dismiss was denied as to this allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
A memo informing complainant that he was still required to obtain approval from the administration for any expenditure request was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's action of merely preventing complainant from using the employer's mail service for 2 specific memos did not rise to the level of a penalty or disciplinary action as listed in §230.80(2), Stats. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
The action of the dean of the college not to include complainant in a list of 8 individuals who were congratulated in a memo for receiving grants or donations was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
The possibility that respondent might forward the name of a candidate for complainant, a faculty member, to consider for hire as a LTE was neither a disciplinary action nor a threat thereof. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Filing a complaint with an agency's EEO office and initiating an investigation of that complaint are not disciplinary actions. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Complainant's memo reciting discrepancies of "almost 1%" and "almost 2%" between certain affirmative action report figures and certain veteran report figures were not major differences and his memo did not satisfy the requirements of a disclosure of "information." Sheskey v. DER, 98-0063-PC-ER, 8/26/98
The decision to investigate and to hold an investigatory meeting does not qualify as a disciplinary action under the whistleblower law. Questions asked of complainant during that meeting did not go beyond the simply uncomfortable or inconvenient and, therefore, did not constitute language or conduct egregious enough to have a substantial, negative impact on complainant's conditions of employment. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Where the only actual change in duties or responsibilities that could reasonably be implied related to complainant having less independence in setting the schedule for his audits of fire departments, it was not a sufficiently significant change to qualify as a "removal of duties" or a "reassignment" within the meaning of §230.80(2). Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Complainant stated that all employes in his work unit had been granted home stations in 1994, but that he did not make the move to his home area of Hayward at that time for personal reasons. Approximately two years later, complainant requested relocation to Hayward. Complainant's allegation that respondent denied his request to change the geographic location from which he performed his job was sufficiently akin to a transfer or reassignment (or to their denial) to qualify as a disciplinary action within the meaning of §230.80(2). Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
A delay in processing a travel voucher does not have the permanence or the long-term impact of penalties cited in §230.80(2), as disciplinary actions. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Where it was undisputed that a decision had been made to change the duties and responsibilities of complainant's position, such an action could be equivalent to removing a duty from a position or reassignment so as to constitute a disciplinary action within the meaning of §230.80(2). Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
A decision to investigate an incident or to conduct a predisciplinary or investigatory meeting, is not a disciplinary action within the meaning of 230.80(2), since it has no inherent negative impact on an employe. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Two alleged comments by a program manager during a meeting with complainant, even if offered as a criticism of complainant's work performance, were too tenuous and conjectural to support a conclusion that they rose to the level of a penalty on a par with those disciplinary actions enumerated in §230.80(2). Complainant alleged that the manager asked, "How long are we going to keep choking this chicken, Dave§" and then repeated the question, using hand gestures to mimic masturbation. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Two alleged statements, standing alone, were not sufficiently severe or pervasive to support a conclusion that the conditions of complainant's employment were affected to the extent required for a finding of verbal harassment within the meaning of §230.80(2)(a). Complainant alleged that the manager asked, "How long are we going to keep choking this chicken, Dave§" and then repeated the question, using hand gestures to mimic masturbation. Even when considered with complainant's remaining allegations of verbal harassment, the cumulative effect of the allegations was insufficient to support a finding that the requirements of §230.80(2)(a), had been met. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
A letter to the president of the University of Wisconsin-System which related to a disagreement by certain UW-Parkside custodians with a decision by management to transfer all third shift custodians to the day shift involved a "failure to act in accordance with a particular opinion regarding management techniques" within the meaning of §230.80(7), Stats., and did not, therefore, satisfy the disclosure requirements of the whistleblower law. Pfeffer v. UW (Parkside), 96-0109-PC-ER, 3/14/97
A written request for a meeting to discuss employe concerns not specifically articulated in the writing does not constitute a protected disclosure. Pfeffer v. UW (Parkside), 96-0109-PC-ER, 3/14/97
Complainant’s claim alleging retaliation because of certain disclosures made by complainant concerning management’s alleged abuse of authority, mismanagement, and violation of law must be dismissed pursuant to §230.88(2)(c), Stats., where her federal court complaint covered essentially the same subject matter as was before the Commission. Nichols v. UW-Madison, 96-0084-PC-ER, 3/12/97
A note from complainant to his supervisor in which complainant merely asked to meet with the supervisor at a specified time "to discuss some issues" was a scheduling document rather than a written disclosure as described in §230.81(1)(a), Stats. The fact that the meeting scheduled in the note was to serve as a forum to address substantive issues relating to the work performance of one of complainant’s coworkers did not transform the scheduling document into a covered disclosure. The decision in Canter v. UW-Madison, 86-0054-PC-ER, 6/8/88, was distinguished. Elmer v. DATCP, 94-0062-PC-ER, 11/14/96
A disclosure need not be made to a first-line supervisor, but may be made instead to a second-line supervisor, third-line supervisor, or higher level supervisor in the employe’s supervisory chain of command in order to qualify as a disclosure to a supervisor within the meaning of §230.81(1)(a), Stats. However, merely because an individual processed grievances originating in the UW-Hospital did not qualify him as a supervisor of complainant, who worked for the hospital, and complainant did not make a protected disclosure. Williams v. UW-Madison, 93-0213-PC-ER, 9/17/96; affirmed by Dane County Circuit Court, Williams v. Wis. Pers. Comm., 96 CV 2353, 11/19/97
A union grievance filed by complainant qualified as a protected whistleblower disclosure to her collective bargaining representative within the meaning of §230.81(3). Williams v. UW-Madison, 93-0213-PC-ER, 9/17/96; affirmed by Dane County Circuit Court, Williams v. Wis. Pers. Comm., 96 CV 2353, 11/19/97
The Commission lacked jurisdiction over a complaint arising from conduct of respondent’s counsel in another case pending before the Commission, where counsel disseminated, to the Commission and to complainant, complainant’s medical records as part of its answer to the complaint. The information was provided as part of the administrative proceeding rather than as part of the ongoing employe/employer relationship between complainant and respondent, citing Larsen v. DOC, 91-0063-PC-ER, 7/11/91, and Martin v. DOC, 94-0103-PC-ER, 12/22/94. Complainant alleged FMLA violation as well as retaliation under the whistleblower law, under the public employe safety and health provisions and for having previously filed a complaint of discrimination. Neither the whistleblower law nor the public employe safety and health provisions is more extensive than the Fair Employment Act as to this issue. Marfilius v. UW-Madison, 96-0047-PC-ER, 5/14/96
In ruling on respondent's motion, filed after the initial determination was issued but before any hearing on the merits of the complaint, to dismiss certain issues relating to whistleblower retaliation for failure to satisfy the statutory definition of "disciplinary action" within the meaning of §230.80(2), Stats., the available information was viewed in the light most favorable to complainant. The motion was denied with respect to issues relating to: 1) the assignment of additional duties to complainant's position; 2) respondent's directive for complainant to move to a different workstation five feet away where the new workstation was equivalent in all significant respects to complainant's current workstation but where complainant felt and communicated to respondent that the association of the workstation with an employe to whom she had developed an aversion could significantly affect her health and her ability to function in her job; and 3) respondent's action to deny complainant the use of leave time for a day of absence resulting in the loss of a day's pay. King v. DOC, 94-0057-PC-ER, 3/22/96
Where complainant filed a written disclosure with an employe of respondent's affirmative action office and contended it was with complainant's understanding that the employe would provide a copy of the writing to someone in complainant's supervisory chain of command, respondent's motion to dismiss was denied. Kortman v. UW-Madison, 94-0038-PC-ER, 11/17/95
A conversation by complainant with a representative of respondent's Bureau of Personnel and Human Resources was not a protected disclosure under §230.81, Stats. Duran v. DOC, 94-0005-PC-ER, 10/4/94
In ruling on a motion for failure to state a claim, appellant's memo, which referred to the absence of a maintenance agreement for the equipment in two offices, could be said to satisfy the requirements for a written disclosure of "mismanagement." Duran v. DOC, 94-0005-PC-ER, 10/4/94
Complainant's testimony in federal court was not a disclosure protected by the whistleblower law because it did not fit within any of the communications enumerated in §230.81, Stats. Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Complainant made a protected disclosure to her legislator where she sent him a copy of a letter she sent to her employer concerning her request for reassignment to her previous route as a handicap accommodation. While the letter did not explicitly allege a violation of state laws, considered in the context of other communications with the legislator and using a liberal construction of the statute, the communication met the requirement of "information gained by the employe which the employe reasonably believes demonstrates a violation of any state . . . law." Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Complainant's consultations with her attorney concerning her request for accommodation constituted a covered disclosure pursuant to §§ 230.80(5)(a), 230.81(1) and (3), Stats. Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Where respondent DER received a letter from complainant (who was not a DER employe) regarding the reclassification of his position and protection under the whistleblower law, and, in response, referred complainant to the Personnel Commission as the agency specified in the whistleblower law as having responsibility for receiving and deciding complaints of whistleblower retaliation, respondent DER met its obligation under the whistleblower law and would not be liable for retaliation if complainant had been the victim of retaliation by the employing agency. Seay v. DER & UW-Madison, 89-0082-PC-ER, 3/31/94; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95,; affirmed by Court of Appeals, 95-0747, 2/29/96
A threat alleged to have been made by a member of management before he even knew complainant, and which was allegedly directed to those who this manager believed had been spreading certain rumors, was held not to constitute a "disciplinary action" within the meaning of §230.80(2), Stats. Chelcun v. UW-Stevens Point, 91-0159-PC-ER, 3/9/94
To be a "disciplinary action," the employer's act must, at the very least, be related to the complainant's employment. Allegedly retaliatory actions taken against complainant's attorney, and public statements made by supervisor which were not related specifically to complainant or to his employment did not constitute "disciplinary action." However, an alleged failure by respondent to promptly investigate allegations of sexual harassment, alleged reductions in complainant's responsibilities and alleged negative aspects of a performance evaluation constitute "disciplinary action." Getsinger v. UW-Stevens Point, 91-0140-PC-ER, 4/30/93
Actions which occurred after the termination of complainant's employment relationship with respondent could not, as a matter of law, constitute "disciplinary action" pursuant to the statutory definition found in §230.80(2)(a), Stats., which refers to "action taken with respect to an employe." Kuri v. UW-Stevens Point, 91-0141-PC-ER, 4/30/93
To meet the definition of "disciplinary action," the employer's act must be related to the complainant's employment status. The law does not cover harassment of an employe's attorney. Kuri v. UW-Stevens Point, 91-0141-PC-ER, 4/30/93
The whistleblower law's prohibition of "verbal or physical harassment" does not include most any public criticism by an employer of an employe's or group of employes' approach to a controversial issue. Kuri v. UW-Stevens Point, 91-0141-PC-ER, 4/30/93
The filing of a FEA complaint with the Personnel Commission is not a protected activity under the whistleblower law that entitles a complainant to protection under §230.80(8)(a), Stats. The court system and, by necessary implication, the system of administrative law, are excluded from the category of "law enforcement agency" in §230.81(2). Butzlaff v. DHSS, 91-0044-PC-ER, 11/19/92
Complainant's two letters to the Commission alleging, among other things, that respondent retaliated against him for lawful disclosures, were protected conduct under the whistleblower law. Complaints of whistleblower retaliation filed with the Commission provide protection from retaliation to the person who filed them. Seay v. DER & UW-Madison, 89-0082-PC-ER, 11/19/92; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
The fact that complainant's letter to the Commission, alleging, among other things, that respondent retaliated against him for lawful disclosures, was not perfected as a complaint until several months later does not mean it cannot be considered a "complaint" for purposes of whistleblower retaliation. Seay v. DER & UW-Madison, 89-0082-PC-ER, 11/19/92; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
While §230.83(2), Stats., acts to exempt certain disclosures from protection against whistleblower retaliation, it does not have an effect on the protected status of a whistleblower complaint which is filed with the Commission. Seay v. DER & UW-Madison, 89-0082-PC-ER, 11/19/92; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
Complainant's action of showing his supervisor a note with complainant's exam score on it was not a disclosure of "information" as defined in §230.80(5), Stats. Seay v. DER & UW-Madison, 89-0082-PC-ER, 11/19/92; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
Complainant's letter to the Commission was a protected disclosure under §230.81, Stats., where the letter alleged illegal retaliation. Where that letter was the first protected action taken by the complainant, any alleged retaliatory actions must post-date the day respondent received notice of this letter. Seay v. DER & UW-Madison, 89-0082-PC-ER, 11/19/92; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
The whistleblower law covers disclosures to legislators and the legislature, and thus includes a disclosure to a private sector auditor providing services for the legislature. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 10/16/92
Complainants' disclosure was not protected under the whistleblower law, because it fell within the exception set forth in §230.83(2), Stats., for disclosures for personal benefit. Complainants' disclosure was that their positions lacked the appropriate arrest authority notwithstanding that their position descriptions called for law enforcement certification, and the lack of such authority jeopardized their continued law enforcement certification and protective occupation status. The provision in §230.83(2), that the law does not apply to an employe whose disclosure is made to receive something of value, clearly applies to an employe who makes a disclosure in order to perpetuate the receipt of benefits to which the employe is not entitled. Here, complainants appeared to contend that once the disclosure was made, their employer should have proceeded to assign them the enforcement authority that was described on their inaccurate position descriptions. This would result in the receipt of something of value--i.e., their retirement benefits would be greater in protective occupation status. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 10/16/92
Complainants alleged that respondent's settlement offer constituted a threat to terminate their protective occupation status and constituted a threat of retaliation under the whistleblower law. Respondents contended, in support of their motion to dismiss for failure to state a claim, that their action was not prohibited by the whistleblower law. The Commission held that since the offer presented two options (depending on whether or not the offer was accepted), both of which were penalties, the offer can be seen as a vehicle for retaliation, and covered by the whistleblower law. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 10/16/92
The filing of a §1983 action in a court of record deprives the Commission of jurisdiction, by operation of §230.88(2)(c), Stats., over a complaint of whistleblower retaliation based on the same allegedly retaliatory conduct as the §1983 action. Dahm v. Wis. Lottery, 92-0053-PC-ER, 8/26/92
A disclosure to an agent of the legislature is equivalent to a disclosure to the legislature. The complainants alleged they had made a protected disclosure to an auditor employed by a private accounting firm serving as an agent of the legislature because the legislature was required to perform a security audit of the Wis. Lottery in order to fulfill its oversight responsibilities. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 2/21/92
The Commission's jurisdiction pursuant to the whistleblower law was not ousted by DETF's concurrent administrative jurisdiction to hear challenges to DER's determinations as to whether positions qualify for coverage as protective occupation participants, citing Phillips v. DHSS & DETF, 87-0128-PC-ER, 3/15/89. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 2/21/92
The Commission's authority under the Whistleblower law does not extend to an individual outside the employing agency who may have played some precipitating role in a disciplinary action but who has no legally-recognized role as an appointing authority or employer. The complainant, a Correctional Officer 3 employed by the Department of Corrections and assigned to the Security Ward at the UW-Hospital and Clinic alleged that he had been reassigned to another facility and harassed as a result of complaints of sexual harassment made by UW-Hospital and Clinic employes. UW-Madison was dismissed as a party. Martin v. DOC & UW-Madison, 90-0080-PC-ER, etc., 1/11/91
Complainant's whistleblower claim was dismissed where her attorney made no allegation that she made a disclosure other than a verbal disclosure. However, complainant was still entitled to protection from retaliation for having filed her complaint. Iwanski v. DHSS, 88-0124-PC, etc., 6/21/89
Respondent's motion to dismiss for failure to state a claim was denied where there was no basis on which to conclude 1) that the complainant did not disclose "information" to her attorney as contended by complainant, or 2) that notes to complainant's supervisor, though neutral on their face, acted to inform the supervisor that the writer wished to identify improper governmental activities. Canter-Kihlstrom v. UW-Madison, 86-0054-PC-ER, 6/8/88
A letter, written by complainant's attorney and serving to inform the respondent that the complainant contended that she had engaged in a protected activity under the whistleblower law by making a disclosure to the attorney, need not itself meet the requirements of a lawful disclosure. Canter-Kihlstrom v. UW-Madison, 86-0054-PC-ER, 6/8/88
A settlement offer made in the context of an ongoing administrative review of an employment decision did not fall within the scope of the prohibition against retaliation because the conditions of settlement required acceptance by the complainant before they could go into effect. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 11/21/85; reconsidering 10/29/85 decision
Application of the whistleblower law to alleged acts of retaliation which occurred after the law's effective date, but which related to disclosures which occurred before its effective date, does not constitute a retroactive application of the law. Hollinger & Gertsch v. UW-Milw., 84-0061, 0063-PC-ER, 8/15/85
The stated policy of the whistleblower law to encourage disclosure and protect employes is furthered by a construction that provides protection to an employe who made a disclosure prior to the effective date of the act and alleges he was retaliated against after the effective date. Hollinger & Gertsch v. UW-Milw., 84-0061, 0063-PC-ER, 8/15/85
There is no requirement that the person alleged to have retaliated be, in all cases, in the supervisory chain over the complainant. Vander Zanden v. DILHR, 84-0069-PC-ER, 9/12/84
702.90 Bases other than those listed in statutes
None of the statutory provisions which serve as the basis on which the Commission may exercise jurisdiction encompass an allegation of "racketeering." Balele v. DILHR et al., 95-0063-PC-ER, 10/16/95
The Commission dismissed a charge of discrimination listing "nepotism" as the basis for the charge where there was no contention or indication that groups specifically protected by the Fair Employment Act suffered in disparate impact from respondents' actions in hiring BMH 2's. Nepotism is not one of the prohibited bases of discrimination covered by the Act. Morkin v. UW-Madison, 85-0084-PC-ER, 8/1/85
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.