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719 Mootness
Respondent had the burden to show that the controversy was moot. Wongkit v. UW-Madison, 97-0026-PC-ER, 10/21/98
An issue is moot when a determination is sought which can have no practical effect on a controversy. The focus, generally, is on the available relief in relation to the individual complainant but may shift to a consideration of others in the workplace when an overt policy of discrimination is alleged to impact on a category of employes. Wongkit v. UW-Madison, 97-0026-PC-ER, 10/21/98
A complaint arising from various conditions of employment was moot where complainant had voluntarily resigned from employment with respondent and was employed by another state agency over which respondent had no supervisory authority, and could not act to affect the terms or conditions of complainant's employment in any practical manner. The fact that complainant could apply for employment with respondent at some time in the future was too speculative to defeat the motion to dismiss. Nothing had occurred from which it could have been concluded that complainant would be considered a prevailing party. The complainant's litigation effort was not a causal factor in achieving the complainant's objectives or improving her situation. Wongkit v. UW-Madison, 97-0026-PC-ER, 10/21/98
Where complainant resigned after her complaint was filed, the question of whether the controversy was moot involved reviewing complainant's claims and the available related remedies to determine if the resignation precluded granting effective relief to complainant. Burns v. UW-Madison, 96-0038-PC-ER, 4/8/98
Where complainant's prospective remedies, other than attorneys' fees and costs, would be limited to an order to respondent to provide requested accommodation and to cease and desist from discriminating or retaliating against complainant in regard to any future accommodation request, the controversy was moot because complainant was no longer employed by respondent. Burns v. UW-Madison, 96-0038-PC-ER, 4/8/98
Where complainant remained an employe of respondent and it was possible that a controversy could arise in the future between the parties relating to the impact of an alleged whistleblower disclosure on complainant’s requests for overtime pay, the fact that respondent had, in 1997 made payments to complainant in 1997 for overtime hours he had accrued in 1995, did not cause complainant’s allegation of retaliation, arising from respondent’s denial of overtime pay in 1995, to be moot, citing Watkins v. DILHR, 69 Wis. 2d 782, 12 FEP Cases 816 (1975). Respondent failed to show that there was no reasonable expectation that the alleged violation would recur and that the 1997 overtime payment made to complainant had completely and irrevocably eradicated the effects of the alleged violation. Respondent’s motion to dismiss the claim was denied. Nolen v. DILHR [DOCom], 95-0163-PC-ER, 12/17/97
An issue is moot when a determination is sought which can have no practical effect on a controversy. Therefore, the focus, generally, is on the available relief in relation to the individual complainant but may shift to a consideration of others in the workplace when an overt policy of discrimination is alleged to have an impact on a category of employes. La Rose v. UW-Milwaukee, 94-0125-PC-ER, 4/2/97
Where each of the potential remedies to various claims could be considered effective only if complainant were still employed by respondent and complainant had retired subsequent to filing his complaint, his claims were dismissed as moot. La Rose v. UW-Milwaukee, 94-0125-PC-ER, 4/2/97
A claim arising from respondent’s decision denying complainant’s request for 8 hours of unpaid FMLA leave for her absence on December 3rd was moot where complainant’s employment was terminated on December 18th, complainant had refused respondent’s offer to grant her 7.75 hours of FMLA leave and 0.25 hours of unapproved absence, so respondent’s records simply reflected complainant’s absence as 8 hours of unpaid leave. There would be no potential for a retroactive salary adjustment for the disputed 15 minutes because complainant’s underlying FMLA request was for leave without pay, and complainant’s personnel file would still reflect that she was terminated for her prior attendance record and her failure to provide proper notice on December 3rd. Follett v. DHSS, 95-0017-PC-ER, 7/5/96
Where the Commission could not award the only remedy which complainant was seeking (attorney's fees and costs), the case was moot and the matter was dismissed. Duello v. UW-Madison, 87-0044-PC-ER, 3/9/90
A complaint of discrimination alleging sex discrimination in the assignment of a classification series to salary ranges was not moot even though the series had been abolished at some time after the complaint was filed. WFT v. DP, 79-306-PC, 4/2/82
720 Standing
The complainant was found to have standing to pursue a complaint of discrimination based on creed where respondent's policy caused the complainant an "injury in fact" during the 300 day period before she filed her complaint by effectively denying group coverage to her which would have provided Christian Science practitioner reimbursement. The complainant's past conduct indicated that but for the policy in question, the complainant would have held group health insurance from the respondent during the 300 day period preceding the filing of her complaint. Lazarus v. DETF, 90-0014-PC-ER, 2/15/91
The Department of Employment Relations was a "person aggrieved" under §227.49(1), Stats., for the purpose of filing a petition for rehearing of the Commission's legal conclusions regarding the family leave/medical leave law where those legal conclusions directly caused injury to DER's interests in the bargaining and administration of the state's leave benefit provisions and where DER's interests were recognized by the family leave and medical leave act. Lawless v. UW-Madison, 90-0023-PC-ER, 6/1/90; precedential value qualified, 1/11/91
Because they had never applied for appointment to a position at the Women's Correctional Center, the complainants lacked standing to allege that the WCC's hiring practices were discriminatory. However, because the complainants were employed at the Marshall Sherrer Correctional Center, they had standing to allege a disparity in working conditions between MSCC and WCC. Duvnjak & Studenec v. DHSS, 88-0164, 0168-PC-ER, 9/8/89
further for certain positions because his exam scores were not high enough but certain individuals who scored lower than complainant were allowed to proceed further in the selection process because of their handicapped status, thus allegedly constituting an injury to the complainant's interest. Oestreich v. DHSS, 87-0038-PC-ER, 6/29/88
Where complainant was found to have been considered for the subject position by the hiring authority, he was the subject of an adverse personnel action when he was not selected and suffered an "injury in fact", even though his name was not on the "official" certification list. Pfeifer v. DILHR, 86-0149-PC-ER, 86-0201-PC, 12/17/87
Where complainant had not scored high enough on the written exam to have been certified on a competitive basis and was denied expanded certification because respondent determined his vision was not such as to qualify him as visually handicapped, complainant lacked standing to contest respondent's allegedly illegal vision acuity standards. The only way he could be in a position to be injured by the acuity standards would be to successfully litigate his exclusion from the handicapped expanded certification and then successfully pass the other parts of the screening. Wood v. DNR, 85-0002-PC-ER, 4/15/87; affirmed by Waushara County Circuit Court, Wood v. State Pers. Comm., 87-CV-80, 5/3/88
A professor at a UW campus has standing to file a claim arising out of alleged discrimination based on the national origin of his prospective faculty exchange colleague. MrFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/4/86
Complainant lacked standing to challenge use of a visual acuity standard for the conservation warden position where only those persons whose names were on the certification list could be considered for appointment, and complainant was not certified as an eligible for the position. The only way the visual acuity standard could adversely affect the complainant was if the test prevented him from being hired, and that did not occur. Wood v. DER & DNR, 85-0008-PC-ER, 7/11/86
The union has standing with respect to an appeal objecting to the assignment of a classification to a pay range as discriminatory, but not with respect to individual claims of back pay. WFT v. DP, 79-306-PC, 4/2/82
721.01 Generally
The Commission is entitled to review the credibility of witnesses and the weight of the evidence in determining probable cause. The Commission is not limited at the probable cause hearing to merely examining whether the petitioner has presented evidence which, if believed, would be sufficient to support his claim. Rather, the test is whether the Commission believes, upon its examination of the evidence and its view of the credibility of the witnesses, that discrimination has probably occurred. McLester v. Personnel Commission, Court of Appeals District III, 84-1715, 3/12/85
Where the parties disagreed about whether complainant was qualified for the position in question but complainant had clearly established the other elements of a prima facie case of race discrimination, the Commission proceeded directly to the issue of pretext. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
In an adverse impact case, complainant has the burden of proving that the policy or practice complained of had a significantly exclusionary impact of his protective class. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
In the context of a hiring decision, the elements of a prima facie case are that the complainant 1) is a member of a class protected by the Fair Employment Act, 2) applied for and was qualified for an available position, and 3) was rejected under circumstances which give rise to an inference of unlawful discrimination. Ruport v. UW (Superior), 96-0137-PC-ER, 9/23/98
Since the case had been fully heard on the merits, the Commission proceeded directly to the question of whether respondent’s explanation for its action was actually a pretext for age discrimination rather than performing a prima facie case analysis, citing U.S. Postal Service Bd. Of Governors v. Aikens, 460 U.S. 711, 715, 75 L. Ed 2d 403, 410, 103 S.Ct. 1478 (1983). Lorscheter v. DILHR, 94-0110-PC-ER, 4/24/97
Simply asking an employe to verify their leave status rather than having a supervisor research such status does not rise to the level of an "adverse employment action" within the context of a retaliation charge. Bower v. UW-Madison, 95-0052-PC-ER, 8/15/96
Where an entire case has been tried on the merits, and the parties have fully tried the question of whether the employer’s rationale for the adverse employment action was pretextual, whether a prima facie case was established is no longer relevant and the question of whether the employer intentionally discriminated against the complainant should be directly addressed, citing U.S. Postal Service Bd. Of Govs. v. Aikens, 460 U.S. 711, 715, 75 L.Ed. 2d 402, 410, 103 S. Ct. 1478 (1983). Mitchell v. DOC, 95-0048-PC-ER, 8/5/96
The Wisconsin approach to mixed motive questions in Fair Employment Act cases is set forth in Hoell v. LIRC, 186 Wis. 2d 603, 522 N.W.2d 234 (Ct. App., 1994). Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
In a complaint of discrimination relating to the academic-related decisions that bore on complainant's employment as a faculty member, the Commission must give appropriate weight to the academic and pedagogical judgments of the academics who are in the best position to make these kinds of evaluations and who have followed a process the university has developed to provide a careful method of evaluation of these factors. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
In analyzing any hostile environment allegation, the employer is not liable unless it is established that the employer acted intentionally because of the employe's protected status. Stark v. DILHR, 90-0143-PC-ER, 9/9/94
Although the burden on the complainant to show probable cause is not as rigorous as the burden to prove discrimination or retaliation, it involves more than simply setting forth a prima facie case of discrimination. Cozzens-Ellis v. UW-Madison, 87-0070-PC-ER, 2/26/91
The Commission rejected the argument that in order to establish the fourth prong of a prima facie case for a nonselection decision, a complainant who cannot prove the vacancy remained open after s/he was rejected must present some other evidence of improper motivation. Winters v. DOT, 84-0003-PC-ER, 7/8/88
The determination of probable cause properly includes the resolution of factual disputes and credibility conflicts. Boyle v. DHSS, 84-0090, 0195-PC-ER, 9/22/87, modified, 10/27/87
The probable cause standard requires a degree of proof that is less demanding than the preponderance standard applicable on the merits but more demanding than the substantial evidence test. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
For non-selection cases, the fourth element of a prima facie case under McDonnell-Douglas requires that the employer continue to seek applicants having training or experience in the same occupational area as the complainant rather than applicants who are "no better qualified than the complainant." Welch v. UW-Oshkosh, 82-PC-ER-44, 10/3/84
As an alternative basis for a finding of illegal discrimination, the Commission applied special rules of analysis where the appellant established the existence of discriminatory intent by direct evidence and found that respondent failed to overcome the presumption of discrimination. Conklin v. DNR, 82-PC-ER-29, 7/21/83
721.12 Arrest/conviction record
Respondent has the burden of proof to establish the §111.335(1)(c), Stats., exception to arrest/conviction discrimination. Staples v. SPD, 95-0189-PC-ER, 8/11/98 (ruling by examiner)
Even in a job where the circumstances are not particularly conducive to committing the particular crime of which the employe has been convicted, the employer can consider the incompatibility between the personal traits important for a particular job and the personal traits exhibited in connection with the criminal activity in question. The personal qualities associated with the crime of arson, for which appellant had been convicted and was still serving his sentence, are incompatible with the qualities needed for a job that has responsibilities for the safety, direction and discipline of juvenile offenders. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
Respondent's consideration of the elements of the crime, the requirements and responsibilities of the position in question, and factors related to the likelihood of recidivism, like length of time that the applicant remained crime free following the most recent conviction, were all acceptable factors to consider in the hiring decision. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
Only an understanding of the statutory elements of the conviction is required in an "elements only" analysis. Those facts found in a criminal indictment or information would usually be required only when the conviction is for an unspecific offense such as that of disorderly conduct. Retail theft falls within the category of convictions where the type of offensive circumstances is explicit and consideration of the criminal information is not required. Perry v. UW-Madison, 87-0036-PC-ER, 5/18/89
721.16 Creed
It is the complainant's burden of proof to establish there is an arguable conflict between an employe's religious practices and the employer's personnel and management procedures. The burden then shifts to the employer to establish hardship, an issue it is far better situated to address than the employe. Lazarus v. DETF, 90-0014-PC-ER, 9/21/92; affirmed by Dane County Circuit Court, Lazarus v. State Pers. Comm., 92 CV 4252, 6/7/93
721.17 Family leave/medical leave
Section 103.10(4)(c), Stats., sets forth the burden of proof placed upon the employe at the hearing on the employe's claim that the employer refused to allow the employe medical leave in violation of the FMLA. The provision does not address the employe's responsibilities under the FMLA when requesting medical leave. The legislative intent was to place the burden upon the employers to determine, at the time an employe requests sick leave, whether the employe (1) has a serious health condition (2) that renders the employe unable to perform the employe's work duties and (3) that a leave is medically necessary. Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
The request for FMLA leave need only be reasonably calculated to advise the employer that the employe is requesting leave under the FMLA and the reason for the request. The employe is not required to give the employer detailed information about the employe's medical condition. Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
To successfully assert that an employer wrongfully denied the employe medical leave, the employe must prove that (1) the employe had a serious health condition (2) which rendered the employe unable to perform the employe's work duties during the requested leave, (3) the leave was medically necessary and (4) the employe requested the planned medical leave in a reasonable manner. Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
No medical expert testimony was necessary where there were outward or overt manifestations, easily recognizable by lay persons, that the employe's serious health condition interfered with her ability to perform her work duties. However, where the employe's serious health condition did not manifest symptoms that lay people would recognize as necessitating a leave, medical expert testimony was necessary to establish that the employe's requested leave was medically necessary. Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
The opinion of a treating physician is not necessarily dispositive of the question of whether leave was medically necessary under the FMLA. An opinion to the contrary from a different medical expert; the treating physician’s failure to particularize the basis for her opinion, failure to prescribe leave during a period of time when she regarded the complainant’s symptoms as more severe than during the leave period, and failure to document her prescription for leave and its purpose in her treatment notes; and the complainant’s participation in college classes and an exam during the leave period, supported a conclusion that the leave was not medically necessary under the FMLA. Sieger v. DHSS, 90-0085-PC-ER, 5/14/96; affirmed by Lincoln County Circuit Court, Sieger v. Wis. DHSS & Wis. Pers. Comm., 96-CV-120, 4/4/97; affirmed by Court of Appeals, Sieger v. Wis. Pers. Comm. & DHSS, 97-1538, 12/2/97
721.18 Disability [Handicap]
Employment as a Youth Counselor at Ethan Allen School, a type 1, maximum-security institution, involves a special duty of care for the safety of the general public. Youth counselors carry out security responsibilities and their roles are comparable to those of correctional officers employed at a prison. Wille v. DOC, 96-0086-PC-ER, 1/13/99 (appeal pending)
At the second step of a handicap discrimination claim, complainant can establish handicap discrimination by showing either that respondent's decision to terminate his probationary employment actually was motivated by handicap or, if the decision to terminate his probationary employment was motivated solely by a performance or conduct deficiency, that the deficiency was caused by his handicap, citing Jacobus v. UW-Madison, 88-0159-PC-ER, 3/19/92, affirmed by Dane County Circuit Court, Jacobus v. Wis. Pers. Comm. 92CV1677, 1/11/93. Thomas v. DOC, 91-0161-PC-ER, 4/30/93
An objective standard is used to determine if the employer was correct in concluding that a handicapped employe is unable to effectively perform and that no accommodation is feasible. That the employer may have acted in good faith in assessing the handicapped employe's abilities is not a defense. Accordingly, evidence which postdates the personnel transaction which may have no relevance to the employer's intent when the employer made its assessment, may be admissible as relevant to the employe's capacity to perform and accommodation. Respondent's motion in limine was denied. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93
Petitioner's problematic personality characteristics did not fall within the parameters of an actual or perceived handicap where his mental status was otherwise considered to be "well within the normal range." Merely because the respondent contended that petitioner's condition would satisfy the criteria in §230.37(2), Stats., it does not follow that the condition constituted a perceived handicap. Where the personality characteristics did not fall within the meaning of the term "impairment," there was neither an actual nor a perceived handicap. Jacobsen v. DHSS, 91-0220-PC, 92-0001-PC-ER, 10/16/92; affirmed by Dane County Circuit Court, Jacobsen v. State Pers. Comm. 92-CV-4574, 93-CV-0097, 9/9/94
An employer cannot prevent a complainant from establishing the second element to a case simply by stating that its motivation for discharging a complaint was his inability to perform his duties where any such inability has resulted directly from the handicapping conditions. The Commission found the termination was "based on" the handicap. Concluding otherwise would allow the respondent to shift the burden of proof on the issue of ability to perform (element 3 in the Brown County analysis) to the complainant (as element 2 in that analysis). Conley v. DHSS, 84-0067-PC-ER, 6/29/87
721.26 Occupational safety and health
In order to establish that a discharge was in violation of §101.055(8)(a), Stats., it would have to be established that the complainant's protected activity was a substantial reason for the discharge or that the discharge would not have taken place "but for" engagement in the protected activity. Strupp v, UW-Whitewater, 85-0110-PC-ER, 7/24/86; affirmed by Milwaukee County Circuit Court, Strupp v. Pers. Comm., 715-622, 1/28/87
The protection against retaliation for public employes who have reasonably refused to perform a task which represents a danger of serious injury or death" is consistent with a test of whether there was a reasonable and good faith belief that the conditions were dangerous. Strupp v, UW-Whitewater, 85-0110-PC-ER, 7/24/86; affirmed by Milwaukee County Circuit Court, Strupp v. Pers. Comm., 715-622, 1/28/87
In analyzing a complaint of discrimination pertaining to occupational safety and health, the Commission applied the type of analysis set forth in McDonnell-Douglas v. Green, 411 U.S. 792 (1973), and described the elements necessary for establishing a prima facie case as: 1) statutorily protected participation by the employe; 2) adverse employment action; and 3) a causal connection. Branski v. UW-Milwaukee, 82-PC-ER-98, 2/29/84
721.28 Race
In order to be liable for racial harassment by co-employes of the complainant, there must have been more than a few isolated incidents of harassment and the employer must have failed to have taken reasonable steps to prevent the harassment, citing EEOC v. Murphy Motor Freight Lines, 22 FEP Cases 892 (D. Minn. 1980). The respondent is not responsible for responding to alleged incidents of which it is unaware. Sheridan v. UW-Madison, 86-0103-PC-ER, 87-0141-PC-ER, 2/22/89
721.30 Retaliation
In an appeal pursuant to §230.44(l)(d), Stats., of a non-appointment with respect to which the appellant alleged sex discrimination and retaliation, the Commission applied the type of analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and found no such discrimination following a discussion of the material circumstances, including the relative qualifications of the applicants. Jacobson v. DILHR, 79-28-PC, 4/10/81
721.32 Sex
In dicta, the Commission noted that when no tangible employment action was taken, the employer is vicariously liable for the supervisor's harassing conduct unless it can prove by a preponderance of the evidence that: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) that the employe unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise, citing Burlington Industries, Inc., v. Ellerth, 188 S.Ct. 2257 (1998); and Faragher v. City of Boca Raton, 188 S.Ct. 2275 (1998). Promulgating an anti-harassment policy with a complaint procedure, and enforcing it may satisfy the first element of the affirmative defense. Failure on the part of an employe to use an existing complaint procedure may suffice to satisfy the employer's burden as to the second element. The Commission proceeded to address complainant’s allegations that the respondent unreasonably delayed its investigation and that its remedial action after concluding the investigation was inadequate. The Commission also addressed facts relating to the second element. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Under §111.36(3), Stats., a presumption of liability attaches if the complainant informs her employer of the harassment and if the employer fails to take appropriate action within a reasonable time. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
In dicta, the Commission concluded that complainant did not effectively provide notice of the harassment to her employer until she disclosed the name of the alleged harasser. Respondent took appropriate action within a reasonable time after that date, so complainant failed to show that the presumption of liability under §111.36(3), Stats., should apply. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Sexual harassment includes 1) conduct falling under §111.36(1)(b), Stats., i.e. either a) "quid pro quo" conduct or b) unwelcome conduct of a sexual nature, as defined in §111.32(13), Stats.; 2) disparate treatment on the basis of sex with respect to terms, conditions or privileges of employment, i.e. conduct under §111.36(1)(a), Stats.; or 3) harassment on the basis of gender of a nonsexual nature in violation of §111.36(1)(br). Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
Despite the failure to fill the disputed position for some years after the hiring decision in question, and attempts to raise the position's salary level, the position remained "open" for purposes of the Fair Employment Act where the duties did not change and where the agency continued to look for someone other than the complainant to do a job for which the complainant was qualified. Anderson v. DILHR, 79-320-PC, 79-PC-ER-173, 7/2/81; affirmed and remanded for additional findings on issue of mitigation of damages by Dane County Circuit Court, DILHR v. Wis. Pers. Comm., 81-CV-4078, 6/7/82
In an appeal pursuant to §230.44(l)(d), Stats., of a non-appointment with respect to which the appellant alleged sex discrimination and retaliation, the Commission applied the type of analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and found no such discrimination following a discussion of the material circumstances, including the relative qualifications of the applicants. Jacobson v. DILHR, 79-28-PC, 4/10/81
A complainant charging sex discrimination with respect to the non-renewal of her contract must establish, for a prima facie case, that she is a member of a protected class, that she was qualified to hold her position, that she was not continued in her position, and that the employer decided not to renew her contract while the contract of a male professor was renewed. While the complainant established a prima facie case, the Commission found that the respondent's articulated reasons were not pretextual in the context of a showing of a legitimate business reason for non-renewal. Boyce v. UW, 79-PC-ER-33, 2/17/81
721.50 Whistleblower
Where complainant's disclosure was investigated and respondent ultimately disciplined an employe because of it, the Commission concluded that the employer determined the protected disclosure merited further investigation. Therefore, the complainant was entitled to the presumption of retaliation with respect to respondent's decision to discharge her, where the discharge was within two years of when she made her protected disclosure. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
The presumption of retaliation does not apply to all discipline occurring within certain time periods. It only applies to that discipline specifically listed in §230.80(2)(a), (b), (c) and (d), Stats., rather than disciplinary actions falling within §230.80(2)(intro), Stats. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
The complainant was entitled to the presumption of retaliation even though the respondent did not investigate the disclosure before issuing the complainant a letter stating that the information "merits further investigation." The Commission is only to look at whether the agency found the information merited further investigation rather than to carry out a substantive review of the adequacy of that finding. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
While the issue of just cause can be an appropriate consideration at the analytical stage of determining pretext in a claim arising from the imposition of discipline, the ultimate issue in whistleblower cases is whether retaliation occurred, not whether there was just cause for the imposition of discipline. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
722 Burden of proof
Section 103.10(4)(c), Stats., sets forth the burden of proof placed upon the employe at the hearing on the employe's claim that the employer refused to allow the employe medical leave in violation of the FMLA. The provision does not address the employe's responsibilities under the FMLA when requesting medical leave. The legislative intent was to place the burden upon the employers to determine, at the time an employe requests sick leave, whether the employe (1) has a serious health condition (2) that renders the employe unable to perform the employe's work duties and (3) that a leave is medically necessary. Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
The employe in a FMLA case must establish they have met the employe's responsibilities under the FMLA in requesting a planned medical leave and then has the burden of proving the employer violated the FMLA by refusing to grant the requested medical leave. In order to successfully assert that the employer has wrongfully denied the employe medical leave, the employe must prove that the employe was entitled to medical leave under the FMLA. Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
To successfully assert that an employer wrongfully denied the employe medical leave, the employe must prove that (1) the employe had a serious health condition (2) which rendered the employe unable to perform the employe's work duties during the requested leave, (3) the leave was medically necessary and (4) the employe requested the planned medical leave in a reasonable manner. Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
In terms of the Fair Employment Act's prohibition against discrimination in compensation on the basis of sex for equal or substantially equal work,the employe bears the burden of showing that the jobs being compared have equal skill, effort and responsibility, and that men and women were paid differently. Meredith v. Wis. Pers. Comm., Dane County Circuit Court., 93CV3986, 8/29/94
Complainant had the burden of proof in his age discrimination case arising from the decision not to appoint him to a faculty position. The Commission has no authority to prosecute the case on complainant's behalf. Huff v. UW (Superior), 97-0105-PC-ER, 3/10/99
Respondent had the burden to show that the controversy was moot. Wongkit v. UW-Madison, 97-0026-PC-ER, 10/21/98
The employer has the burden of proof on the issue of accommodation. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98
Complainant had the burden to prove that he was entitled to receive reimbursement for lost overtime pay as the appropriate remedy to illegal discrimination/retaliation. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98
In a case involving an allegation of age discrimination with regard to the filling of positions as LTE Security Officer, where the interviewer testified that she obtained the ages of the candidates in order to be able to conduct a criminal record inquiry, it was complainant's burden of proof to produce evidence that background checks were never carried out. Complainant had argued that respondent did not produce evidence that background checks were actually done. Ruport v. UW (Superior), 96-0137-PC-ER, 9/23/98
It is complainant's burden of proof to demonstrate that the allegations raised in his complaint were timely filed. When analyzing this question in the context of respondent's motion to dismiss, it was appropriate to construe the allegations raised in the complaint in a light most favorable to complainant. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent has the burden of proof to establish the §111.335(1)(c), Stats., exception to arrest/conviction discrimination. Staples v. SPD, 95-0189-PC-ER, 8/11/98 (ruling by examiner)
The question of whether complainant could have returned to work earlier from a medical leave which commenced when he was hospitalized for chest pains two days after he was informed that he was not selected for a vacant position (a decision subsequently found to have been discriminatory) and lasted approximately one year, ran to mitigation of damages, and the burden of proof with respect thereto was on respondent. It was a matter of mitigation because during this period, complainant was neither working nor attempting to work in the position he had previously held, so his remuneration was less than it otherwise would have been and he arguably failed to have done what he could have done to mitigate his damages. Chiodo v. UW (Stout), 90-0150-PC-ER, 7/2/97; affirmed by Dane County Circuit Court, UW v. Wis. Pers. Comm., 97-CV-3386, 9/24/98
The burden of persuasion remains continuously with the complainant in a claim under the Fair Employment Act, rather than shifting to the employer if the complainant establishes a prima facie case. Krenzke-Morack v. DOC, 91-0020-PC-ER, 3/22/96
Complainant has the burden of persuasion with respect to establishing that which is necessary to recover the remedy he is seeking. Paul v. DHSS & DMRS, 82-PC-ER-69, 1/25/95; reversed by Dane County Circuit Court, Paul v. Wis. Pers. Comm., 95-CV-0478, 10/11/95; reversed by Court of Appeals, Paul v. Wis. Pers. Comm. & DHSS, 95-3308, 12/12/96 (Note: the effect of the decision of the Court of Appeals was to affirm the Commission’s decision in all respects)
The party alleging violation of previous protective orders has the burden of establishing the existence of such violations Volovsek v. DATCP & DER, 93-0098-PC-ER, 3/1/94 (ruling by examiner)
The burden of proof with respect to the ability to perform in a handicap case rests on the employer, citing Samens v. LIRC, 117 Wis. 2d 646, 345 N.W. 2d 432 (1984). Betlach-Odegaard v. UW-Madison, 86-0114-PC-ER, 12/17/90
The statutory requirement that the whistleblower act be liberally construed has no relation to the burdens of proof of parties to litigation under the law and does not entitle the complainant to the benefit of the doubt in resolving questions of credibility. Morkin v. UW-Madison, 85-0137-PC-ER, 11/23/88; rehearing denied, 12/29/88; affirmed by Dane County Circuit Court, Morkin v. Wis. Pers. Comm., 89-CV-0423, 9/27/89
The complainant has the burden of establishing probable cause except that the respondent has the burden of establishing no probable cause as to questions of whether the handicap is reasonably related to the complainant's ability to undertake the job-related responsibilities of the complainant's employment and whether respondent has satisfied its duty of accommodation. Citing Samens v. LIRC, 117 Wis. 2d 646, 664, (1984) and Giese v. DNR, 83-0100-PC-ER, 1/30/84. Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87
As a general matter, the burden of proving inability to accommodate rests with the employer. Giese v. DNR, 83-0100-PC-ER, 1/30/85
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.