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706.03 Realization of discriminatory/retaliatory nature of action
The "reasonably prudent" standard is the correct standard to apply in determining the timeliness of a complaint under §103.10(12)(b), Stats. Sheskey v. Wis. Pers. Comm. & DER, Dane County Circuit Court, 98-CV-2196, 4/27/99
The "reasonably prudent" standard requires that a complainant file a claim when the facts that would support a charge of discrimination were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff. This language is simply another way of stating that the complainant must file a claim when he or she knows or should have reasonably known of the violation. Sheskey v. Wis. Pers. Comm. & DER, Dane County Circuit Court, 98-CV-2196, 4/27/99
Complainant should have inquired about his rights under the FMLA after the following alleged violations occurring in 1994 and 1995: (1) An alleged inappropriate identification on the evaluation of complainant’s use of family leave; (2) alleged misinformation supplied by respondent regarding the use of vacation and sick days during his family leave; (3) an alleged change in work assignments; (4) an alleged inappropriate lay off procedure. As a person with a reasonably prudent regard for his rights, complainant should have investigated into his recall rights well before February of 1998. Respondent’s alleged retaliation by not recalling him from lay off after August of 1995 was untimely. Sheskey v. Wis. Pers. Comm. & DER, Dane County Circuit Court, 98-CV-2196, 4/27/99
Complainant's opinion, held by July 10, 1996, that he was being harassed through misuse of the disciplinary system, triggered his duty to file a complaint, whether complainant knew the harassment was due the Fair Employment Act retaliation or whistleblower retaliation. Those whistleblower claims arising from adverse actions that occurred more than 60 days before he filed his complaint in January of 1997 were, therefore, untimely. Prochnow v. UW (La Crosse), 97-0008-PC-ER, 8/26/98
Family/medical leave act allegations filed in 1998 arising from complainant's performance evaluation and subsequent lay-off in 1995 were untimely. The question raised was whether a person similarly situated to complainant with a reasonably prudent regard for his or her rights would have made the inquiry necessary to determine whether his or her rights provided by the FMLA were violated. Sheskey v. DER, 98-0054-PC-ER, 6/3/98; rehearing denied, 7/22/98; affirmed by Dane County Circuit Court, Sheskey v. Wis. Pers. Comm. & DER, 98-CV-2196, 4/27/99
Where the entries that gave rise to complainant's charge were all apparent on the face of the performance evaluation when complainant signed it in 1995, complainant's allegation that respondent later crossed out a notation and postdated the changes and that complainant did not discover the changes until he saw his evaluation again in 1998 was not a basis for considering the 1998 complaint to be timely. Sheskey v. DER, 98-0054-PC-ER, 6/3/98; rehearing denied, 7/22/98; affirmed by Dane County Circuit Court, Sheskey v. Wis. Pers. Comm. & DER, 98-CV-2196, 4/27/99
Normally, when a person is faced with a discrete personnel transaction, he or she has a responsibility to make any necessary inquiry to determine whether the transaction was illegal. Sheskey v. DER, 98-0054-PC-ER, 6/3/98; rehearing denied, 7/22/98; affirmed by Dane County Circuit Court, Sheskey v. Wis. Pers. Comm. & DER, 98-CV-2196, 4/27/99
Where complainant stated he had formed the opinion he was being subjected to a hostile environment prior to his layoff in 1995, the alleged denial of complainant's recall rights more than 30 days before complainant filed his FMLA claim in 1998 was untimely. A person with a reasonably prudent regard for his or her rights would not, under these circumstances, have waited until February of 1998 to make an inquiry relative to his recall rights. Sheskey v. DER, 98-0054-PC-ER, 6/3/98; rehearing denied, 7/22/98; affirmed by Dane County Circuit Court, Sheskey v. Wis. Pers. Comm. & DER, 98-CV-2196, 4/27/99
Even if notes discovered within 300 days of the filing of a complaint fell into the category of the "smoking gun" category of proof, the actual discovery of the notes by complainant did not start the filing period where facts which would support a charge of discrimination would have been apparent earlier to a similarly situated person with a reasonably prudent regard for her rights. Masko v. DHSS, 95-0096-PC-ER, 4/4/96
Where complainant was aware from management's disclosure on October 27 that budget cuts could impact on the structure of her position, and where complainant had already formed an opinion that her immediate supervisor had discriminated against her on the basis of sex and handicap, a person with a reasonably prudent regard for her rights in complainant's situation would have made inquiry on or after October 27th to determine if management's explanation was worthy of credence and, if not, whether the decision might be an extension of the discrimination by the supervisor. Tafelski v. UW (Superior), 95-0127-PC-ER, 3/22/96
The Commission recognizes both the fraudulent concealment or equitable estoppel theory as a basis for tolling the statute of limitations, i.e. where respondent takes active steps to prevent complainant from suing in time, as well as the unavailable information or equitable tolling theory, i.e. where a complainant, despite all due diligence, is unable to obtain vital information bearing on the existence of his claim. Tafelski v. UW (Superior), 95-0127-PC-ER, 3/22/96
Where complainant's handicap claims were premised upon allegedly different treatment of complainant in comparison to her co-workers, complainant was aware of this difference in treatment as it was occurring, additional information obtained in 1994 when complainant first saw notes of a meeting held on 1990 between her supervisor and two of her co-workers was insufficient to make her complaint, filed within 300 days of when received the notes in 1994, timely. Events occurring more than 300 days prior to the date she filed her complaint included discipline and other instances where complainant was able to directly compare respondent's treatment of her to respondent's treatment of her co-workers. Masko v. DHSS, 95-0096-PC-ER, 2/15/96; rehearing denied, 4/4/96
A reasonable person would have interpreted supervisor's overtures as sexual in nature and would have been aware of the facts necessary to support complainant's theory of sexual harassment in November of 1989, i.e., more than 300 days prior to filing of complaint. Since complainant had alleged a continuing violation which included actions of his supervisor occurring within the 300-day time period which were arguably acts of sexual harassment, motion to dismiss for untimely filing denied. Getsinger v. UW-Stevens Point, 91-0140-PC-ER, 4/30/93
Based upon the availability of the relevant information to complainant in 1989, and upon complainant's evident belief during 1989 that something other than program considerations had prompted the subject non-renewal decision and that this something was cognizable as an equal rights matter, the filing of the complaint in 1991 was untimely. Christensen v. UW-Stevens Point, 91-0151-PC-ER, 11/13/92
A complaint filed 20 months after complainant was informed that someone else had been hired to fill a vacancy was not timely where there was no allegation that respondent actively sought to mislead the complainant. A reasonably prudent person who has been denied a job and who has any interest in keeping open the possibility of pursuing his or her right to challenge the selection decision should make inquiry at the time of learning that someone else was appointed. Zeuner v. DRL, 91-0088-PC-ER, 12/23/91
Where the complainant believed she was a victim of pervasive discriminatory activity, which included performance evaluations and which culminated in her discharge and where the complainant alleged she contacted the Commission for a complaint form in September of 1986, her complaint filed in December of 1987 was untimely as to all events leading up to and including her discharge in November of 1986 as well as a performance evaluation of which the complainant was not aware until she examined her personnel file in August of 1987. Kirk v. DILHR, 87-0177-PC-ER, 7/11/91
Where the earliest possible time that complainant, as a person with a reasonably prudent regard for her rights, would have been aware of the facts that would give rise to a complaint of discrimination was no earlier than when other employes were reclassified, allegedly in contravention of the policy that had been applied to complainant, a complaint filed within 300 days thereafter must be considered timely. Piotrowski v. DILHR & DER, 90-0396-PC, 5/1/91
The 60 day limitation period for filing a whistleblower claim begins to run at the point the retaliatory action allegedly occurred or was threatened or after the employe learned of the retaliatory threat, whichever was last, not at the point the employe believes or concludes the action is retaliatory. Vander Zanden v. DILHR, 87-0063-PC-ER, 1/11/91; rehearing denied, 2/26/91
A complaint relating to the manner in which equity awards were made and filed more than 300 days after the last equity award was granted, was timely where the gravamen of the discrimination charge was that younger, less senior employes in the same classification were being paid at a higher rate as a result of equity awards designed to deal with specific salary compression problems which affected them and the complainant had no reason to have been aware of the transactions affecting his co-workers' salaries. Therefore, a person in complainant's situation with a reasonably prudent regard for his or her rights could not be expected to make an inquiry about the salary levels of his co-workers. The complaint, filed within 300 days of when complainant learned in a casual conversation with a co-worker that the co-worker's salary was higher than complainant's, was timely. Rudie v. DHSS & DER, 87-0131-PC-ER, 9/19/90
A complaint, filed in 1989 alleging respondent DOT discriminated against the complainant by informing a potential employer in July of 1987 that the complainant had filed a discrimination claim against the State after her discharge in 1986, was untimely where in October of 1987 the complainant had filed a notice of claim with the Attorney General charging the respondent with defamation, interference with employment opportunity and interference with contract and where that claim arose from the July conduct. Bruns v. DOT, 89-0058-PC-ER, 2/7/90
A complaint was not timely where 1) complainant returned to work as a security officer in 1984 after recuperating from a heart attack, 2) on several occasions over the next two years complainant requested a change from rotating shifts to permanent shifts for all security officers, 3) those requests were not granted, 4) complainant left the security department in 1986, 5) complainant learned in August of 1987 that other officers with job-related work limitations were given special accommodations by placing them on suitable permanent shifts rather than on shift rotation and 6) complainant filed his complainant in February of 1988. Ludka v. UW-Stout, 88-0026-PC-ER, 4/28/89
A complaint, filed in 1988 and arising from a decision in 1986 not to permit the complainant to return to work with light duty restrictions was not timely where a person with a reasonably prudent regard for his or her rights similarly situated to the complainant would have been aware of the facts that would give rise to a charge of discrimination prior to a decision by the respondent in 1987 to permit another employe in a different classification and different vocational group and with a different condition to return to work on light duty. Welter v. DHSS, 88-0004-PC-ER, 2/22/89
The 300 day time limit was not avoided under a theory of equitable tolling, equitable estoppel or similar theory where complainant had filed a charge of discrimination against his supervisor in 1985, where the supervisor subsequently told the complainant that there was no money available for raises and that complainant got what everyone else was getting. The Commission concluded that a reasonably prudent person would conduct some kind of inquiry, if that were needed, to confirm or deny whether the salary transactions were proper and could not reasonably rely on the statements of the supervisor as to the basis for the salary decisions. Kimble v. DILHR, 87-0061-PC-ER, 2/19/88
Respondent's motion to dismiss was denied with respect to complainant's age discrimination claim arising from a layoff decision and the failure to recall him at a later date. There was no evidence for concluding that complainant had or should have formed the belief that he was discriminated against until he read an entry in the faculty/staff directory listing a person with a position name identical to the classification title of complainant's former position. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 12/30/86
A complaint, alleging discrimination through the use of expanded certification involving promotions made in 1983 and 1984 was untimely where the complaint was not filed until March of 1986. There was no reason to assume that the complainant was not aware of or could not have become aware of all the facts that would have supported charges of discrimination back in 1983 and 1984 even though complainant did not reach a conclusion that these facts arguably gave rise to a violation of the Fair Employment Act until 1986 when he learned that a hearing examiner at the Commission had issued a proposed decision finding that certain of the state's expanded certification procedures were improper. Gozinske v. DHSS, 86-0038-PC-ER, 6/25/86
Respondent's motion to dismiss the occupational safety and health claim arising from a layoff decision was granted because complainant was aware or should have been aware of facts sufficient to support a claim of retaliation more than 30 days prior to the date he filed the complaint. Early in 1983, complainant had given a deposition that was detrimental to the respondent's position. One month later, respondent met with union representatives concerning eliminating complainant's job in the Theater Technician classification, his impending layoff and creating a new academic staff position that would include complainant's duties as well as other duties. The layoff decision was grieved, but sustained. Two years later, in 1985, immediately after complainant saw a listing in the faculty/staff directory for a person with the title of Theater Technician, he filed his complaint. However, respondent's motion to dismiss complainant's age claim was not granted, where complainant alleged he did not learn that a younger person had been appointed to his "reinstated" position until 1985. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 6/18/86
The phrase "any appeal filed under this section may not be heard" in §230.44(3), Stats., applies only to appeals involving the subject matter set forth in §230.44, Stats., and not to appeals or charges of discrimination filed under §§230.45(l)(b) and 111.375(2), Stats. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 1/24/86
The 30 day time period for filing a charge of occupational safety and health retaliation and the 300 day time period for filing charges of age discrimination do not begin to run until the facts that would support a charge of discrimination or retaliation were apparent to the complainant or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the complainant. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 1/24/86
706.05 Continuing violation
A party is not required to file a FEA claim within 300 days of the initial accrual of a claim if the claim involves a continuing violation. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98
In a case where complainant was seeking a different position as an accommodation, the alleged violation was, at least arguably, a continuing violation while complainant remained employed by respondent, even though she was on a leave of absence. An employer has a continuous duty of accommodation. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98
Granting a motion to dismiss on timeliness grounds is inappropriate where there are facts in dispute as to whether respondent discharged its duty of accommodation during a portion of the 300 day filing period, and whether the circumstances of the case gave rise to a continuing violation. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98
Complainant's claims under the whistleblower law were untimely filed because they related to events occurring more than 60 days before she filed her complainant, the three actions were discrete events not susceptible to application of a continuing violation theory and complainant became aware of the events at the time they occurred. The fact that complainant may not have formed a belief until later that they were retaliatory did not operate to toll the 60-day filing period, citing Vander Zanden v. DILHR, 87-0063-PC-ER, 1/11/91. Meyer v. UW-Madison, 98-0103-PC-ER, 10/21/98
Complainant's opinion, held by July 10, 1996, that he was being harassed through misuse of the disciplinary system, triggered his duty to file a complaint, whether complainant knew the harassment was due the Fair Employment Act retaliation or whistleblower retaliation. Those whistleblower claims arising from adverse actions that occurred more than 60 days before he filed his complaint in January of 1997 were, therefore, untimely. Prochnow v. UW (La Crosse), 97-0008-PC-ER, 8/26/98
A notation on complainant's evaluation that was subsequently crossed out did not give rise to a continuing violation. To the extent the notation could contribute in some way to future discrimination against complainant, this would be a subsequent damage from the notation, not a continuing violation. Similarly, altering the notation was not a continuing violation. Sheskey v. DER, 98-0054-PC-ER, 7/22/98; affirmed by Dane County Circuit Court, Sheskey v. Wis. Pers. Comm. & DER, 98-CV-2196, 4/27/99
In contending that there was a continuing course of conduct with a link to the 300 day filing period, complainant must allege a particular incident which occurred during this period and cannot rely on a general assertion that discrimination and retaliation continued into the period. Nelson v. DILHR, 95-0165-PC-ER, 2/11/98
The particular incident occurring within the 300 day filing period on a continuing violation theory must be an adverse action. Complainant could not rely on respondent's decision to grant her request to work at home, where complainant did not contend that she suffered any injury as a result of this action. The Commission rejected complainant's argument that the basis for her request to work at home was a harassing environment where she was unable to cite a specific incident of discrimination or retaliation that occurred during the actionable time period. Nelson v. DILHR, 95-0165-PC-ER, 2/11/98
Respondent’s motion to dismiss was denied where complainant had alleged that sex harassment occurred on an ongoing basis and she had provided specific examples including examples allegedly occurring during the actionable period. However, complainant’s claim of Fair Employment Act retaliation was dismissed as untimely where complainant had failed to provide a date upon which the alleged action, a threat to fire complainant, occurred. The conclusion that the sex discrimination claim was timely did not require that the retaliation claim also be considered timely. Reinhold v. Office of the Columbia County District Attorney & Bennett, 95-0086-PC-ER, 9/16/97
Complainant’s allegation relating to respondent’s failure to fill a position into which complainant had sought to transfer was untimely where complainant knew in April of 1992 that respondent had denied his transfer request and/or that respondent had decided not to fill the position and complainant did not file his complaint until mid-March of 1993. Complainant’s contention that he had been subjected to a pattern of discrimination since 1988 was insufficient to toll the limitations period for a claim arising from a discrete event such as the denial of a transfer request. La Rose v. UW-Milwaukee, 94-0125-PC-ER, 4/2/97
Complainant’s allegation relating to respondent’s decision denying his request to be reassigned to another position was untimely where complainant knew in March of 1993 that respondent had denied his request and complainant did not file his complaint until mid-March of 1993. Complainant’s contention that he had been subjected to a pattern of discrimination since 1988 was insufficient to toll the limitations period for a claim arising from a discrete event such as the denial of a reassignment request. La Rose v. UW-Milwaukee, 94-0125-PC-ER, 4/2/97
Complainant’s claim of sexual harassment was untimely where all the facts which complainant advanced to support her claim were known to her more than 300 days prior to the date she filed her complaint with the Commission. Schultz v. DOC, 96-0122-PC-ER, 4/2/97
A transfer decision, which occurred outside of the 300 day filing period, was a discrete event and complainant knew, at the time her transfer request was granted, all of the facts which she advanced in support of her claim that the transfer was discriminatory. Therefore, her failure to file her complaint within 300 days of the date of the transfer was fatal to her claim. Schultz v. DOC, 96-0122-PC-ER, 4/2/97
Complainant’s allegation that respondent discriminated against her when it failed to return her manuscript to her, both while she was employed and afterward, was in the nature of a decision-making process which took place over a period of time, making it difficult to say that the alleged discrimination occurred on any one particular day to the exclusion of other days. McDonald v. UW-Madison, 94-0159-PC-ER, 8/5/96
Promotion and termination decisions were discrete, isolated and completed actions which had to be regarded as individual violations. Both had a degree of permanence which should have triggered complainant’s awareness of and duty to assert her rights. Likewise, complainant’s allegation that her laboratory supervisor became enraged with her promotion and threatened to delay the paperwork for the promotion was a separate incident that was not susceptible to application of the continuing violation doctrine. McDonald v. UW-Madison, 94-0159-PC-ER, 8/5/96
The continuing violation doctrine allows an employe to get relief for an otherwise time-barred act by linking it with an action that occurred within the limitations period, citing Selan v. Kiley, 59 FEP Cases 775, 558 (7th Cir., 1992). There are at least three separate theories for applying the doctrine: 1) where it is difficult to pinpoint the exact violation date due to the involved decision-making practices of the employer; 2) where the claim challenges an employer's express, open policy; and 3) where the allegations are of covert discrimination evidenced only by a series of discrete acts. In analyzing the third theory for applying the doctrine, it is appropriate to consider three factors: 1) do the alleged facts involve the same type of discrimination, tending to connect them in a continuing violation; 2) are the alleged acts recurring or more in the nature of an isolated work assignment or employment decision; and 3) does the act have the degree of permanence which should trigger an employe's awareness and duty to assert his or her rights, or which should indicate to the employe that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate§ In applying these factors, the only act outside the actionable period which fell within the third theory of the continuing violation doctrine was the claim that complainant's supervisor checked on complainant's whereabouts. Tafelski v. UW (Superior), 95-0127-PC-ER, 3/22/96
The acceptance of one discriminatory theory during the actionable period cannot be used under the continuing violation doctrine to "bootstrap" prior claims brought under an unrelated, separate discrimination theory. Allegations of handicap discrimination occurring outside of the 300 day time period could not, on a continuing violation theory, rely on a timely allegation of age discrimination. Tafelski v. UW (Superior), 95-0127-PC-ER, 3/22/96
Respondent's motion to dismiss on timeliness grounds was denied without prejudice where one action identified in complainant's charge of whistleblower retaliation occurred during the relevant 60-day period prior to filing, complainant alleged a pattern of harassment or a pattern of actions designed to achieve complainant's separation from employment and none of the alleged actions was sufficiently remote in time from its predecessor or successor to break the chain. Kortman v. UW-Madison, 94-0038-PC-ER, 11/17/95
A 1988 decision, described by complainant as a "demotion" and by respondent as a "reassignment," had the requisite degree of permanence to trigger complainant's duty to assert his right to file a claim of discrimination and was not appropriate for inclusion under a continuing violation theory in a complaint filed nearly 5 years later, where complainant acknowledged that the 1988 conduct was such as to generate, at the time, a conclusion, in anyone's mind, of discrimination. LaRose v. UW-Milwaukee, 94-0125-PC-ER, 3/31/95
Complainant's mere statement that racial harassment continued into the 300 days prior to filing her complainant was insufficient to establish a timely complaint where complainant failed to cite any incident which occurred during this period. Womack v. UW-Madison, 94-0009-PC-ER, 7/25/94
A period of time of more than 3 years between acts of alleged harassment "breaks the chain" and, as a result, it was held there was no continuing violation. Chelcun v. UW-Stevens Point, 91-0159-PC-ER, 3/9/94
Two comments, separated by two months and standing alone, did not constitute a continuing violation. Doro v. UW-Parkside, 92-0157-PC-ER, 12/28/93
A reasonable person would have interpreted supervisor's overtures as sexual in nature and would have been aware of the facts necessary to support complainant's theory of sexual harassment in November of 1989, i.e., more than 300 days prior to filing of complaint. Since complainant had alleged a continuing violation which included actions of his supervisor occurring within the 300-day time period which were arguably acts of sexual harassment, motion to dismiss for untimely filing denied. Getsinger v. UW-Stevens Point, 91-0140-PC-ER, 4/30/93
Complainant's charge of discrimination was not timely filed where she admitted she was aware of all relevant facts involving the alleged discrimination at the time of her retirement and she retired more than 300 days prior to the date she filed her complaint. Complainant was subsequently reemployed on an LTE basis, but she did not allege that the discrimination continued during this brief period. Sindorf v. UW-Stevens Pt, 92-0105-PC-ER, 4/23/93
By alleging that respondent engaged in a course of conduct which largely involved stripping away his duties and not giving him any significant work over a period of several years and continuing at least until November 11, 1992, complainant alleged a continuing violation in his complaint filed later in November of 1992. CaPaul v. UW-Extension, 92-0225-PC-ER, 1/27/93
A continuing violation was found where the LTE hiring process being challenged was ongoing and did not include notification of nonselection for each vacancy. Dawsey v. DHSS, 89-0061-PC-ER, 10/29/92
Where complainant's claim of sex discrimination was based on a comparison of her rate of pay with that of a male co-worker performing identical duties and the discrepancy was based on the fact that the male employe had more seniority in the classification which in turn rested on certain distinct personnel transactions which had occurred over 10 years earlier, there was no continuing violation because in order for the respondent to defend against the complainant's current complaint, it would have to rely on the earlier personnel transactions by arguing that the current salary discrepancy was justified by them. Herrbold v. DOC, 91-0003-PC-ER, 5/16/91
Even though the complainant had terminated her health insurance coverage in February of 1989 and did not actually submit a bill to the respondent for reimbursement during the 300 days prior to January 22, 1990, which was when she filed her complaint of discrimination based on creed, her complaint was timely based on a continuing violation theory. Complainant made her February 1989 decision to terminate her insurance coverage when she learned of the decision in December of 1988, rejecting a request to extend group coverage to include reimbursement of Christian Science practitioner expenses. Respondent's policy was clearly established and it was reiterated to the complainant on numerous occasions, including a number of times within the 300 day period prior to the date she filed her complaint with the Commission. Lazarus v. DETF, 90-0014-PC-ER, 2/15/91
Where complainant alleged that respondent was paying him less than it should, that this was occurring on an ongoing basis and that respondent failed or refused to rectify the situation, the circumstances constituted a "continuing violation." Rudie v. DHSS & DER, 87-0131-PC-ER, 9/19/90
Where the original complaint was apparently drafted pro se, was filed in 1987 and alleged that complainant was being prevented from returning to a previous position, and where the proposed amended complaint alleged that in 1988 complainant had been denied transfers into unspecified positions and had been prevented from returning to his previous position, the Commission could not rule out a continuing violation and declined to deny the complainant's request for amendment of his complaint. Vander Zanden v. DILHR, 87-0063-PC-ER, 2/28/89
An allegation that an employe has requested and for retaliatory reasons has been denied reinstatement on certain occasions usually will not give rise to a continuing violation theory -- the alleged wrong against the employe occurs on specific occasions and is not of an ongoing nature. On the other hand, an allegation that a laid-off employe was subject to recall for a period of time and that the employer wrongfully refused to recall the employe during that period probably would amount to a continuing violation because of the ongoing nature of the alleged wrong. Vander Zanden v. DILHR, 87-0063-PC-ER, 2/28/89
A continuing violation theory applied to a whistleblower claim arising from a policy first announced on May 2, 1984, even though the whistleblower law did not become effective until May 11, 1984, where the policy was in effect on May 11th and was clarified in writing on May 17th. Vander Zanden v. DILHR, 84-0069-PC-ER, 8/24/88; affirmed by Outagamie County Circuit Court, 88 CV 1223, 5/25/89; affirmed by Court of Appeals, 89-1355, 1/10/90
An employer's decisions on salary increases are discrete transactions which cannot be characterized as continuing violations. Kimble v. DILHR, 87-0061-PC-ER, 2/19/88
A complaint relating to the February, 1983 filling of two 50% positions by someone other than the complainant was untimely where the complaint was filed more than 300 days thereafter. The fact that in December of 1983, the other employe was permitted to take a reduction in hours, thereby permitting him to work every other weekend rather than every weekend, did not provide a basis for applying a continuing violation theory as to the February, 1983 transactions. Boyle v. DHSS, 84-0090-PC-ER, 2/11/88
Receipt of monthly retirement checks does not constitute a continuing violation as to complainant's claim that he was forced to retire early because of his age. The complaint, filed in April of 1987, was dismissed because it was filed nearly 17 months after the date of retirement. Pelikan v. DNR & DETF, 87-0043-PC-ER, 6/24/87
A continuing violation typically involves an employer's ongoing policy that affects that employe continually. Pelikan v. DNR & DETF, 87-0043-PC-ER, 6/24/87
A continuing violation theory was unavailable to the complainant who alleged discrimination through the use of expanded certification involving three promotions made in 1983 and 1984 and did not file his complaint until March of 1986. Gozinske v. DHSS, 86-0038-PC-ER, 6/25/86
The relationship between a) investigative interviews and a suspension occurring more that 300 days before the complaint was filed and b) a suspension occurring within the 300 day limit was not such as to support a continuing violation theory. A suspension is a discrete event and the complainant was in a position to file a complaint within 300 days of the first suspension but did not. Poole v. DILHR, 83-0064-PC-ER, 12/6/85
Complaint that alleged discrimination based on handicap filed over two years after a memo was issued establishing the procedure to be used by complainant in purchasing materials for her tailoring class was held to be timely on a continuing violation theory. The memo continued to dictate the methods used by the complainant for purchasing materials up to the time the complaint was filed. The Commission also applied the continuing violation theory to complainant's allegation that respondent failed to reasonably accommodate her handicap by assigning her to a second floor classroom and by not providing her with a telephone. Olson v. DHSS, 83-0010-PC-ER, 4/27/83
A complaint of discrimination alleging sex discrimination in the assignment of a classification series to salary ranges was timely because each bi-weekly salary payment (during the period the salary range assignments were in effect) represented a basis for an allegation of sex discrimination due to unequal pay on a continuing violation theory. WFT v. DP, 79-306-PC, 4/2/82
An appeal containing an allegation that the appellant was paid less than similarly situated male employes was held to constitute a continuing violation, the Commission noting that this case involved a basic issue of salary level which can be distinguished from a case involving a discrete personnel transaction which over the years had a continuing effect on an employe's salary as a result of the operation of an arguably neutral personnel policy. Hoepner v. DHSS, 79-191-PC, 6/30/81
Where the complainant had transferred from DILHR to LIRC on July 3, 1977, her complaint alleging DILHR paid her lower wages than male attorneys, which was filed on September 7, 1978, was untimely, even on a continuing violation theory, because it was filed more than 300 days after her employment relationship with DILHR terminated. Jacobson v. DILHR & LIRC, 78-PC-ER-49, 4/23/81
706.07 Of amendment
Complainant’s claims were dismissed as untimely filed where she failed to cure a technical defect as directed by the Commission in a previous ruling. In the earlier ruling, complainant was permitted to amend her complaint by filing a properly signed, verified and notarized statement as required under §PC 2.02(2), Wis. Adm. Code. Instead of complainant curing the technical defect by verifying the information herself, her attorney provided the information under his own signature, which was the same defect addressed in the previous ruling. Because complainant had not taken advantage of the opportunity previously granted her to cure the technical defect, there was no allegation of discrimination during the 300 day period prior to the filing of her complaint and her complaint, therefore, was untimely. Reinhold v. Office of the Columbia County District Attorney, 95-0086-PC-ER, 11/7/97; rehearing denied, 12/17/97; affirmed by Dane County Circuit Court, Reinhold v. Office of the Columbia District Attorney & Wis. Pers. Comm., 98-CV-0076, 7/8/98
Complainant’s request to change three allegations of unequal treatment based on sex to include them in her claim of sex harassment was granted where it was properly characterized as curing a technical defect, even though the request was not made until more than 2 years after the complaint was filed and about 6 months after the initial determination was issued. Reinhold v. Office of the Columbia County District Attorney, 95-0086-PC-ER, 9/16/97
Complainant’s request to amend her complaint to include a race discrimination claim was denied where the amendment was filed 24 months after complainant filed her initial complaint of sex discrimination, nothing in the original complaint placed the respondent on notice that its treatment of a co-worker of complainant would be critical to its defense against complainant’s allegations, and the new claim was not raised until the investigation of the original complaint had been completed and an initial determination issued. Payne v. DOC, 95-0095-PC-ER, 7/31/97
Even though the complainant's amendment sought to raise a claim of handicap discrimination arising from some of the same conduct described in her initial complaint of age discrimination, amendment was not permitted where the amendment was not filed until more than 3 years had passed since complainant's resignation and after an initial determination had been issued on complainant's charge of age discrimination and where complainant had retained legal counsel more than a year before the amendment was filed. Ziegler v. LIRC, 93-0031-PC-ER, 5/2/96
Amendments alleging new acts of discrimination and filed after the issuance of an initial determination held not to relate back to filing of original complaint. Chelcun v. UW-Stevens Point, 91-0159-PC-ER, 3/9/94
Alleged FEA retaliation based on the filing of the initial complaint cannot be considered to "relate back" to the initial complaint. It cannot be considered part of the same acts alleged in the initial complaint because it is based upon the subsequent act of filing of the initial complaint. Such new allegations may be treated as a separate charge of discrimination, but only if they are timely filed. Chelcun v. UW-Stevens Point, 91-0159-PC-ER, 3/9/94
Complainant's request to amend the issue for hearing to add a claim under the whistleblower law was denied where the request was filed four months after the parties had stipulated to an issue limited to sex discrimination and was also filed three days after closure of discovery. Complainant failed to show any reason for the delay and failed to show that the stipulation as to the issue resulted from inadvertence or mistake, and there was no allegation of whistleblower retaliation in the original complaint. Florey v. DOT, 91-0086-PC-ER, 9/16/93
Complainant's amendments, filed before the commencement of an investigation, were permitted, where they did not threaten delay and there was no allegation of potential prejudice. Butzlaff v. DHSS, 90-0162-PC-ER, 11/13/92
The complainant could not amend his original complaint to add family/medical leave, occupational safety and health and whistleblower claims and have the amendment relate back where the original complaint had been dismissed for lack of subject matter jurisdiction, complainant was represented by counsel during the earlier proceeding and he had had a full opportunity at that time to seek to amend his complaint to add allegations and to thereby avoid a dismissal order but failed to do so. Butzlaff v. DHSS, 90-0162-PC-ER, 4/5/91
The untimeliness of the filing of an amended charge cannot be cured by relating back to a previous untimely charge. Complainant had filed a whistleblower complaint on August 8, 1986 relating to an investigatory meeting on April 28, 1986. That complaint was untimely because it was outside the 60 day time limit for whistleblower complaints. Complainant's June 19, 1987 amendment alleging that his March 31, 1987 discharge constituted retaliation for whistleblower activities was, therefore, also untimely. Cleveland v. DHSS, 86-0104-PC-ER, 7/8/87
Technical deficiencies in a letter, considered by the Commission to constitute a complaint of discrimination, were corrected by filing a completed form PC-3. The corrections related back to the date the original letter was filed. Goodhue v. UW-Stevens Point, 82-PC-ER-24, 11/9/83
A complainant would be permitted to amend a complaint to add an allegation that the agency action of which he originally complained constituted discrimination on the basis of race also constituted discrimination on the basis of retaliation, and the amendment would relate back to the date of the original complaint. However an investigation of the amended complaint and an initial determination thereon would be required before matter could proceed to hearing. Adams v. DNR & DER, 80-PC-ER-22, 1/8/82
An amendment of a complaint was found to be timely on a relation-back theory where the only new issue raised in the amended complaint was the inclusion of a possible legal conclusion previously omitted, i.e., checking an additional box (handicap) on the complaint form. Jones v. DNR, 78-PC-ER-12, 11/8/79
706.08 Relation back to previously filed appeal
Where no hearing had been held and no prejudice established, complainant's filing, on December 7, 1992, of a complaint form referencing both a Family/Medical Leave Act claim and a handicap discrimination claim, was allowed as an amendment of a letter of appeal filed on June 24, 1992, which clearly sought to invoke the Fair Employment Act. Because the FMLA claim was related to the subject matter of the original appeal, the December 7th filing met the requirements of §PC 3.02(2), Wis. Adm. Code, and was held to relate back to the June 24th filing for purposes of timeliness. Boinski v. UW-Milwaukee, 92-0233-PC-ER, 4/23/93
Where the complainant's initial correspondence to the Commission was an appeal of a reclassification denial and made no request that the Commission open a file for any other matters, complainant's subsequently filed whistleblower complaint which was received more than 60 days after the alleged retaliatory conduct, was untimely. Holubowicz v. DHSS, 88-0097-PC-ER, 9/5/91
Appellants, who had filed an appeal of reallocation decisions and had alleged, in their appeal, that the actions constituted discrimination based on sex, were permitted to perfect a complaint of sex discrimination by filing a notarized complaint as to the matters set forth in the appeal. The complaint would relate back to the date the original appeal was filed. The Commission ordered that the appeal was to be dismissed (for lack of subject matter jurisdiction) once the complaint had been filed. Saviano v. DP, 79-PC-CS-335, 6/28/82
Appellant, who in 1979 had filed an appeal of his termination and bad alleged in his appeal that the termination was "based on religious discrimination," was permitted to perfect a complaint of discrimination based on creed in 1981 relating to his termination. The complaint related back to he date the original appeal was filed. The complainant was not permitted in 1981 to add a claim of handicap discrimination because there was no indication that the basis for the allegation was not known or knowable prior to a hearing held on the appeal in 1980. Laber v. UW, 79-293-PC, 8/6/81
706.50 Appeal from initial determination of no probable cause
The 30 day time limit for receiving appeals of an initial determination of no probable cause is directory rather than mandatory and the Commission will accept a late filing if complainant shows good cause as to why the appeal was filed late. Generally, good cause is established when the complainant shows that the filing was late for a reason beyond complainant’s control rather than reasons within the complainant’s control. Allen v. DOC, 95-0034-PC-ER, etc., 11/7/97
Where complainant should have known that it was physical receipt by the Commission in Madison which measured whether his appeal would be filed timely and receipt was due on September 26th, his action of waiting until September 25th to write and mail his appeal in Green Bay was not good cause for a late appeal. Allen v. DOC, 95-0034-PC-ER, etc., 11/7/97
The time limit for filing an appeal of an initial determination of no probable cause is a stricter standard than applies to the filing of various other documents with the Commission. Allen v. DOC, 95-0034-PC-ER, etc., 11/7/97
Complainant’s statement that he was busy trying to find employment did not constitute good cause for his failure to meet the 30 day time limit for appealing an initial determination of no probable cause. Allen v. DOC, 95-0034-PC-ER, etc., 11/7/97
Illness may serve as good cause for a late filing of an appeal from an initial determination of no probable cause. However, where complainant did not indicate whether his illness resulted in days of incapacitation during the appeal period and, if so, which days, complainant did not establish that his illnesses were the reason why his appeal was filed late. Allen v. DOC, 95-0034-PC-ER, etc., 11/7/97
Complainant's appeal from an initial determination was not timely where it was received more than 30 days after the initial determination was mailed to complainant's attorney and complainant. Complainant's copy was returned due to an expired forwarding order but was re-sent 8 days later to an address obtained from his attorney. Garrette v. DRL & DER, 90-0092-PC-ER, 91-0184-PC-ER, 8/4/95
An appeal of an initial determination of no probable cause was not timely where it was due at the Commission on Monday, the 21st, it bore a Madison postmark of the 21st, was received on the 23rd and complainant claimed she mailed it in Milwaukee on the 18th. Even if complainant had mailed it on the 18th, there was an insufficient basis to conclude that the receipt on the 23rd was caused by the post office rather than by complainant. Hill v. DHSS, 93-0077-PC-ER, 3/29/94
Complainant's appeal of a no probable cause finding was filed on the day after it was due. Good cause for this late filing was found where the cover letter to the initial determination did not reflect a recent change in the Commission's mailing address. Amaya v. DOC, 93-0104-PC-ER, 1/11/94
Complainant's appeal from an initial determination of no probable cause was received by the Commission one day after the 30 day appeal period. Good cause existed to consider the appeal timely because on the morning of the 29th day, complainant mailed her appeal letter by Express Mail "Next Day Service" which specified delivery by 3:00 p.m. on the next day, i.e. the last day of the appeal period, yet the letter was not delivered to the Commission until the 31st day. Jazdzewski v. UW-Madison, 92-0179-PC-ER, 11/29/93
Good cause was not found for complainant's filing of his appeal of an initial determination of no probable cause one day late, where he merely asserted that he had not allowed enough time to effect delivery of the appeal on the last possible day. Krueger v. DHSS, 92-0065-PC-ER, 7/8/92
Complainant's appeal was untimely where it was received on the 31st day following the date the initial determination was mailed to both the complainant and to her attorney. Complainant's letter was postmarked in the p.m. of November 22nd, it had to be filed with the Commission by the 24th and the 23rd was Thanksgiving, a legal holiday. Good cause for the late filing did not exist where it was mailed at the 11th hour and complainant was represented by counsel. Rogers v. DOA & Ethics Board, 87-0010-PC-ER, 12/22/89; rehearing denied, 2/12/90
Complainant Joubert's appeal of a no probable cause initial determination was timely where his designated representative clearly indicated by letter received within the 30 day period that complainant wished to appeal the matter. In addition, complainant was away on business when the initial determination arrived at his address and his own letter of appeal took 17 days after it was posted in Africa to arrive at the Commission, 34 days after the initial determination was mailed. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/8/88
The 30 day period in §PC 2.07(3), Wis. Adm. Code, is directory rather than mandatory. Where the complainant's mother died on the day before the 30 day period would have ended and the complainant's union representative was absent from the state, there was good cause for failing to file the petition within the 30 day period. Dugas v. DHSS, 86-0073-PC-ER, 87-0143-PC-ER, 7/14/88
Pursuant to the Commission's rules, revised in 1987, the 30 day period for filing a request for hearing on the issue of probable cause commences with the mailing of the initial determination. In addition, the request for hearing is not perfected until it has been physically received by the Commission. The complainant's appeal filed outside the 30 day period was untimely even though the complainant's address had changed prior to the issuance of the initial determination. The complainant had failed to notify the Commission of the address change and the initial determination had also been mailed to complainant's attorney of record. Shelton v. DNR & WCC, 85-0123-PC-ER, 7/13/88
The 30 day period provided in §PC 4.03(3), Wis. Adm. Code, (1980) for appealing an initial determination of no probable cause, commences on the date the initial determination was actually received rather than on the date it was mailed to the complainant by the Commission, citing Vesperman v. UW-Madison, 81-PC-ER-66, 6/4/82. Note: The Commission's rules relating to this topic were renumbered and revised, effective in August of 1987. Bender v. DOR, 87-0032-PC-ER, 3/23/88
The 30 day limit in §PC 4.03(3), Wis. Adm. Code is directory rather than mandatory. The complainant's appeal of an initial determination of no probable cause was timely where the appeal was postmarked July 2, the 30th day was a Sunday so by operation of §801.15, Stats., the due date was July 7th, and the appeal letter was received by the Commission on July 8th. Mailing the appeal letter on July 2 was reasonable and prudent so there was good cause for the failure to comply with the 30 day limit. Stein v. DHSS, 85-0152-PC-ER, 8/20/86
With respect to an appeal pursuant to §Pers. 4.03(3) of a determination of no probable cause, the service of the decision is not complete until receipt, and the petition for appeal is timely if posted within the 30 days set forth in the rule. Vesperman v. UW, 81-PC-ER-66, 6/4/82
Equitable estoppel lies where the complainant relied to his detriment upon incomplete notice provided by the Commission; the detrimental reliance occurring where complainant failed to timely request a hearing on the finding of no probable cause. Lott v. DHSS & DER, 79-PC-ER-72, 5/16/80
The Commission has no statutory obligation, nor any obligation imposed by administrative rule, to notify complainant of the 30-day appeal period commencing upon the issuance of a finding of no probable cause to believe that discrimination practices have occurred. Lott v. DHSS & DER, 79-PC-ER-72, 5/16/80
710 Parties
Appointing authorities, or their designees, actually make appointment decisions to the state civil service. The secretary of the Department of Employment Relations and the administrator of the Division of Merit Recruitment and Selection do not control, and are not accountable for, aspects of the appointment process carried out by state agencies acting as appointing authorities. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98
The Personnel Commission reasonably interpreted ch. 230, Stats., to mean that the appointing authority is generally responsible for actions in the selection process which occur after the point of certification. The terms of delegation agreements running from the administrator of the Division of Merit Recruitment and Selection to various appointing authorities did not demonstrate that DMRS had ultimate authority over appointments at the various state agencies where the positions were located. The terms of those agreements as well as the State's Personnel Manual cannot supersede the language of the statutes, and ch. 230, Stats., does not give the administrator authority over the appointment process after the point of certification. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98
Where complainant was certified as qualified for both positions in question by the administrator of the Division of Merit Recruitment and Selection, any discrimination or retaliation against complainant occurred after the administrator's authority over the appointment process terminated. The administrator and the secretary of the Department of Employment Relations were properly dismissed as parties. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98
The Commission lacks jurisdiction under the Fair Employment Act to add the State of Wisconsin as a separate party respondent. Pellitteri v. Wis. Pers. Comm., Dane County Circuit Court, 94CV3540, 7/19/95
It is up to the appointing authority, and not the Department of Employment Relations or the Division of Merit Recruitment and Selection, to decide how to fill a vacancy in the career executive program. Neither DER nor DMRS were appropriate respondents in terms of reviewing the decision to fill the vacancy by transfer. Oriedo v. DOC et al., 98-0124-PC-ER, 11/4/98
Alleged action by the Department of Employment Relations and the Division of Merit Recruitment and Selection of failing to respond to or act on complainant's letter of complaint relating to conduct by his employing agency, could not have any adverse effect on complainant's employment. Complainant was not employed by either DER or DMRS. Oriedo v. DOC et al., 98-0124-PC-ER, 11/4/98
Complainant was not permitted to amend his whistleblower complaint to include the State of Wisconsin as an additional respondent. There is clear evidence of a legislative intent not to permit the State of Wisconsin to be named a respondent in a complaint of whistleblower retaliation filed with the Commission. Oriedo v. DPI et al., 98-0042-PC-ER, 8/12/98
The Department of Employment Relations and the Division of Merit Recruitment and Selection are not proper respondents in a claim of racial discrimination arising from the failure of the Department of Public Instruction to hire complainant for a vacant position, citing Balele v. DNR et al., 95-0029-PC-ER, 6/22/95. The alleged discriminatory action took place after certification, during the selection/appointment process and there is nothing in the statutes which gives either DER or DMRS any control over hiring decisions of the appointing authorities. Oriedo v. DPI et al., 96-0124-PC-ER, 3/12/97
While it is unlawful for a "person" to discriminate, the Commission's jurisdiction under the FEA runs only to the state agency as the employer, and not to individual agents of the agency in their individual capacities. Goetz v. DOA & Columbia County District Attorney, 95-0083-PC-ER, 11/14/95
Respondent DOA's motion to dismiss it as a party was denied where the claim involved an allegation of sexual harassment by a district attorney of a member of his staff, DOA provides administrative support to the district attorney's office, DOA arranged for an investigation of the complaint when it was initially filed with DOA, the governor has the authority to remove a district attorney for cause and DOA is a cabinet agency. Even though DOA had no authority to discipline or remove a district attorney, there was at least the possibility that DOA could have had a role in a chain of authority over the district attorney. Goetz v. DOA & Columbia County District Attorney, 95-0083-PC-ER, 11/14/95
While it is unlawful for a "person" to discriminate, the Commission's jurisdiction under the Fair Employment Act runs only to the state agency as the employer, pursuant to §111.375(2), Stats., and not to individual agents of the agency in their individual capacities. Reinhold v. DOA et al., 95-0086-PC-ER, 11/14/95
In a claim based on the whistleblower law, a respondent may be a supervisor or appointing authority in his or her individual capacity. Reinhold v. DOA et al., 95-0086-PC-ER, 11/14/95
The Commission's jurisdiction over the employer in Fair Employment Act cases is limited to agencies per se, as opposed to a broader entity such as the State of Wisconsin, citing Pellitteri v. DOR, 90-0112-PC-ER, 9/8/93; affirmed, Pellitteri v. Pers. Comm., 94CV3540, Dane County Cir. Court, 7/19/95 Reinhold v. DOA et al., 95-0086-PC-ER, 11/14/95
With respect to a claim which runs to the appointing authority's failure to have appointed complainant after he had been examined and certified as eligible, neither DER nor DMRS are appropriate parties. Balele v. DNR et al., 95-0029-PC-ER, 6/22/95
DER was an appropriate party for remedial purposes because the remedy conceivably could involve an order requiring the employing agency to notify DER of its determination of complainant's protective occupation status pursuant to §40.06(1)(dm), Stats. It cannot be concluded on the basis of an assertion in DER's brief in support of its motion for dismissal as a party that it has been advised by DETF (Department of Employe Trust Funds) that it will not give effect to any order by DER regarding complainant's protective occupation status, that an order directed to DER would have no possible effect on complainant's protective occupation status. Pierce v. Wis. Lottery & DER, 91-0136-PC-ER-B, 9/17/93
DER was properly a party to a whistleblower claim where it was alleged that it violated the whistleblower law with respect to the determination of complainant's protective occupation status. Pierce v. Wis. Lottery & DER, 91-0136-PC-ER-B, 9/17/93
Complainant's request to add the State of Wisconsin as a party, pursuant to the theory that the FEA's duty of handicap accommodation by transfer runs to all agencies of the state, was denied because pursuant to §111.375(2), Stats., the Commission's jurisdiction is limited to receiving and processing FEA complaints against individual state agencies as employers. The Commission did not reach the issue of whether the duty of accommodation includes inter-agency transfers. Pellitteri v. DOR, 90-0112-PC-ER, 9/8/93; affirmed by Dane County Circuit Court, Pellitteri v. Wis. Pers. Comm., 94CV3540, 7/19/95
The employing agency is an appropriate party in claims alleging that complainants, who were employed as parking attendants, were discriminated against by being placed in a classification premised upon sex, resulting in a pay disparity. Because complainants requested back pay, the employing agency was an appropriate party for remedial purposes in the event the complainants were successful. The Commission was unable to find, as a matter of law, that the employing agency could not be required to make contribution in the event of a back pay award, despite its contention that it was not a party to the collective bargaining agreement which allocated the classification to a particular pay range and its contention that it had previously requested the other respondent to move the classification to a higher pay range. Kosinski, et al. v. UW-Madison & DER, 92-0243-PC-ER, etc., 4/30/93
The statutes under which the Commission operates preclude the designation of named individuals as parties-respondent. Balele v. DHSS & DMRS, 91-0118-PC-ER, 3/19/92
DER was retained as a party in a whistleblower case for remedial purposes where complainants alleged that there had been a threat to terminate their protective occupation status and contended that DER had the authority to approve protective occupational status under §40.06(1)(dm). 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
A petition for intervention was denied where the petitioner was not involved in or directly affected by the transaction which formed the subject matter of the case and petitioner basically viewed the respondent's actions as part of a pattern of conduct which would be probative evidence in his own proceedings pending with the Commission. Deppen v. UW-Madison, 90-0110-PC-ER, 8/8/90
DETF is the proper party respondent in a Fair Employment Act discrimination case involving a DETF decision to deny family health insurance coverage to an employe's homosexual non-spousal partner because even though DETF did not employ the complainant, it was acting in the role of employer with regard to determining complainant's fringe benefits. DHSS would not be retained as a party where it played no operative role in the denial of coverage and it would not be a necessary party for the purpose of granting any relief that might be required. Phillips v. DETF & DHSS, 87-0128-PC-ER, 3/15/89, 4/28/89, 9/8/89; affirmed by Dane County Circuit Court, Phillips v. Wis. Pers. Comm., 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92
The Commission lacks jurisdiction pursuant to §111.375(2), Stats., over a labor union, and therefore, despite the fact that a discrimination complaint under the Fair Employment Act involves a bargainable subject -- i.e., health insurance coverage which falls within the category of fringe benefits -- with respect to which the labor organization has been involved in bargaining, the labor organization cannot be made a party. Phillips v. DETF & DHSS, 87-0128-PC-ER, 3/15/89, 4/28/89, 9/8/89; affirmed by Dane County Circuit Court, Phillips v. Wis. Pers. Comm., 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92
In a complaint arising from a decision with respect to retirement benefits, the complainant's former employing agency (DHSS) was retained as a party in addition to DETF even though the complainant conceded that DHSS had not discriminated against him where complainant contended that he should be reinstated to his former position as the remedy upon a finding of discrimination. Prill v. DETF & DHSS, 85-0001-PC-ER, 1/23/89, reconsideration denied, 1/30/89
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.