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740 Findings, conclusions, order
The proposed decision erred where it addressed matters outside the scope of the notice of hearing. Complainant claimed he was discriminated against based on arrest and conviction record. The statement of the issue was phrased in terms of whether respondent discriminated on the basis of arrest or conviction record in connection with the last paragraph of a letter it issued to complainant. The letter stated that it served as a last chance warning to complainant that "any subsequent driving while intoxicated or similar charges" would result in termination of his employment. The statement of the issue did not provide adequate notice to the parties that the Commission would consider whether respondent's conduct violated §111.322(2), Stats, which prohibits circulating any statement which implies or expresses any limitation, specification or discrimination; or an intent to make such limitation, specification or discrimination because of any prohibited basis. The original charge of discrimination did not mention the circulation issue. The initial determination also did not mention that issue, nor had either party addressed that issue prior to the issuance of the proposed decision and order. Williams v. DOC, 97-0086-PC-ER, 3/24/99
Where the hearing examiner erred in deciding, in a proposed decision and order, an issue that was not properly noticed, circumstances were consistent with a remand for further proceedings before the hearing examiner. Williams v. DOC, 97-0086-PC-ER, 3/24/99
Adjudicative bodies should decide cases on the basis of the result the law requires, regardless of whether the particular legal theory is brought to bear by the parties or, sua sponte, by the adjudicative body, so long as the parties have sufficient notice and an adequate opportunity to be heard on the issue in question. Williams v. DOC, 97-0086-PC-ER, 3/24/99
742 Remedy
An award of attorneys fees, based upon hours spent, per hour dollar amount and multiplier to compensate for the contingent nature of the case, was an abuse of discretion in an action brought under the whistleblower statute, because the purpose of the attorneys fees provision of the statute is to make the complainant whole and not to create a windfall for the victim or the attorney. Board of Regents v. Wis. Pers. Comm. (Hollinger), 147 Wis. 2d 406, 433 N.W. 2d 273, (Court of Appeals, 1988)
Although, in his post-hearing brief, complainant had cited certain testimony for a number of propositions that the testimony did not support, there were no meaningful sanctions available. Respondent's request for sanctions against complainant was denied. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Judicial appellate procedure can not fairly be applied to a de novo administrative hearing. Complainant's motion for a "judgment on admitted claim" was rejected. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Complainant failed to sustain his burden to prove that he was entitled to receive reimbursement for lost overtime pay as an appropriate remedy to illegal discrimination/retaliation for not accommodating complainant's disability within a reasonable period of time. Complainant did not present any evidence connecting his lost overtime pay, while off work recovering from surgery to respondent's delay in providing him a chair with a headrest. The appropriate remedy was a cease and desist order. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98
In a case in which respondent discriminated against complainant on the basis of age with respect to its decision to appoint someone else on an acting basis to the position in question, the goal was to replicate, to the extent possible, where complainant would be in terms of his employment status, including salary and benefits, as if the discriminatory act had not occurred. 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 general rule is that the burden of proof in the area of remedy is upon the complainant to show the fact and extent of the injury and to show the amount and value of his damages, citing 22 Am Jur 2d Damages §902, p. 923. The Commission must determine the positions the employe would have held, the period complainant would have occupied each position, and the remuneration complainant would have received absent the discrimination, and may take into account various factors including the qualifications and seniority of the claimant and other employes, and the layoffs, transfers, resignations and promotions that would have impacted on the complainant’s employment, citing C. Sullivan, M. Zimmer & R. Richards, Employment discrimination (Second Edition), §14.4.2 (1988). 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
If, after a finding of discrimination as to a non-selection decision, complainant can show by a preponderance of the evidence that a subsequent personnel transaction—e.g., a change in classification, a step increase on the completion of probation—would have inured to his benefit, he is entitled to have that figured into his remedy. There is no requirement that the employe also show that there was an additional act of discrimination with respect to the subsequent personnel transaction. 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
Where complainant had always had very good performance evaluations and was substantially better qualified than the successful candidate for the position in question, an acting appointment, and where a permanent appointment (i.e. a change from acting to permanent status) was made without a formal selection process and the person in the acting position was given the permanent appointment on the basis of his good performance in an acting capacity, complainant met his burden of showing that if no discrimination had occurred and had he received the acting appointment, he also would have received the permanent appointment. 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
Where it was undisputed that complainant had a history of significant coronary disease, that he went to the hospital complaining of chest pain and an extreme reaction to having heard that he was not selected for a vacant position (a decision subsequently found to have been discriminatory) and that his physician was of the opinion that it was inadvisable for him to return to work at that time because of the possibility that the job-connected stress could cause another heart attack, the record supported a finding that for medical reasons directly caused by the personnel transaction in question, complainant became unable to work upon his hospitalization and the condition continued for approximately 1 year. 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 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
Respondent did not sustain its burden of proof that complainant could have returned to work earlier than he did after being placed on medical leave following his hospitalization 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) in light of the absence of any contravening evidence, such as another expert opinion, to testimony by complainant’s physician that complainant could return to work at UW-Stout approximately one year after complainant commenced his leave. 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
A back pay award should not be reduced because an employe is unable to work because of a medical disability caused by the employer’s discriminatory misconduct, even though the Fair Employment Act does not provide for the recovery of compensatory damages for emotional distress or similar injuries. The employe’s "make whole" back pay award will not be diminished by a disability that has been proximately caused by the act of discrimination. 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 Commission lacks the authority, under either the Fair Employment Act or the whistleblower law, to enforce the terms of settlement agreements. Where complainant’s charge was clearly focused on the terms of, and the enforcement of, a settlement agreement reached in three previously filed complaints which had been dismissed pursuant to the settlement agreement, the respondent’s motion to dismiss was granted. The Commission also lacked the authority to reopen the previously closed cases, citing Haule v. UW, 85-0166-PC-ER, 8/26/87. Jordan v. DNR, 96-0078-PC-ER, 1/30/97
The primary inquiry centered on the degree of success attained by petitioner. One method for separating the successful and unsuccessful contentions advanced by a petitioner is to separate the litigation into its primary stages, relate each item in the application for fees to one of these stages, determine the degree (often in terms of a percentage) of success the petitioner achieved in each stage, and then apply the percentage or other measuring tool for each stage to the number of hours in the application related to that stage. Warren v. DHSS [DHFS], 92-0750-PC, 92-0234-PC-ER, 10/2/96
Where petitioner achieved full success at the liability stage of the proceeding, and respondent did not challenge the hourly rate, she was entitled to all of her fees requested for that stage. However, where petitioner did not prevail as to any of the three contentions she advanced at the remedy stage, she was not awarded any claimed fees attributable to that phase. Finally, where petitioner failed to clearly specify which hours in the application were expended working on the issue of fees and costs, except in three instances where the application was merely mentioned, complainant was awarded fees representing one-half of the time identified for those three instances, reduced by another one-half because petitioner was not totally successful in regard to the contentions she advanced in regard to her application for fees and costs. Warren v. DHSS [DHFS], 92-0750-PC, 92-0234-PC-ER, 10/2/96
Where there was no basis on the record to conclude that petitioner’s refusal to settle the case during the liability stage was unreasonable and where the Commission had already concluded that the fee award should not include fees incurred during the remedy stage, there was no useful purpose in determining whether it was reasonable for petitioner to refuse settlement offers during the remedy stage so as to place an upper limit on the payment of fees. Warren v. DHSS [DHFS], 92-0750-PC, 92-0234-PC-ER, 10/2/96
The general rule in crafting remedies under the Fair Employment Act is that a successful complainant should be made whole to the extent it is consistent with the purposes of the FEA. Where a successful complainant has been improperly denied appointment to a position or has been improperly removed from a position, the appropriate remedy is appointment to the same position or a substantially equivalent position and back pay. However, given the length of time that had passed since the subject personnel action and the fact that the incumbent of the relevant position had not benefited from the personnel action rejected by the Commission, removal of the incumbent and appointment of the successful to the position with the same position number from which complainant had been removed would not be an appropriate remedy where the duties of that position had, in many respects, changed from the time that complainant had been demoted and where there was a second "substantially equivalent position" to which complainant could be appointed. Warren v. DHSS, 92-0750-PC, 92-0234-PC-ER, 5/14/96
A valid offer of reinstatement terminates an employer’s back pay obligation as of the date the offer is rejected. To constitute a valid offer of reinstatement, the offer must be for the same position or a substantially equivalent position, must be unconditional, must provide the employe a reasonable time to respond, and should come directly from the employer or an agent of the employer authorized to make and effect such offers, citing Anderson v. LIRC, 111 Wis. 2d 245, 330 N.W.2d 594 (1983). The burden of showing that an offer of reinstatement is unconditional rests with the employer and an offer of reinstatement is not considered unconditional if it requires relinquishment of a discrimination claim, including relinquishment of the right to pursue remedies. Warren v. DHSS, 92-0750-PC, 92-0234-PC-ER, 5/14/96
Where the record showed that the parties were involved in settlement discussions, it was respondent’s burden to show that the offer of an equivalent position was unconditional, i.e. was not contingent on complainant’s relinquishment of her claim of discrimination. Therefore, respondent’s back pay liability was not tolled by an admission of liability and respondent failed to show that complainant failed to mitigate damages by rejecting respondent’s offer of appointment. Warren v. DHSS, 92-0750-PC, 92-0234-PC-ER, 5/14/96
Aggrieved persons are not entitled to recover damages for the period beyond which they would have been terminated for a nondiscriminatory reason. Where respondent showed that it carried out a reorganization designed to facilitate case processing and maximize the utility of a new computer system and one of the results of the reorganization was that complainant’s position was eliminated and its duties and responsibilities were assigned to another position and where complainant failed to show that she would have continued in the surviving position instead of the incumbent, who had greater seniority than complainant, respondent’s back pay liability in a case arising from an earlier removal from a position terminated when respondent received final approval for the reorganization plan. Warren v. DHSS, 92-0750-PC, 92-0234-PC-ER, 5/14/96
After-acquired evidence is not a bar to relief, citing McKennon v. Nashville Banner Pub. Co., 130 L. Ed. 2d 852 (1995). Dorf v. DOC, 93-0121-PC-ER, 6/9/95
While there is no per se barrier to removing an incumbent as part of a remedy under the Fair Employment Act, where nearly 13 years had elapsed since the hiring in question and where the current incumbent did not benefit from the respondent's illegal conduct, displacement of the current incumbent was inappropriate. 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)
Complainant's award of back pay arising from the failure to hire him for a vacancy in 1982 was limited to the difference between pay actually received and the pay he would have received, plus interest, from 1982 until 1987 when the complainant became "unqualified" for appointment to the position in question or similar position due to his discharge for a reason that was directly related to the type of responsibilities he would have been required to perform in the position in question. The circumstances surrounding complainant's discharge provided a basis for removing him from any certification from the position in question. He was not entitled to an appointment as part of the remedy. 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)
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)
Respondent's motion for a hearing to determine the appropriate remedy was granted where the hearing on the merits found employer liability but the issue of remedy was not fully litigated. The parties were permitted to supplement the record, where necessary, with respect to the remedy issue. Keul v. DHSS, 87-0052-PC-ER, 2/3/94
The Commission has authority to award attorney's fees against respondent state agencies after finding liability under the Fair Employment Act and to award fees under the Equal Access to Justice Act, irrespective of the decision in Wis. Dept. of Trans. v. Wis. Pers. Comm., 176 Wis.2d 731, 500 NW2d 664 (1993). Keul v. DHSS, 87-0052-PC-ER, 2/3/94
Complainant's petition for rehearing was denied where he requested relief which was based at least in part on speculation about what would occur in the future. Balele v. DHSS & DMRS, 91-0118-PC-ER, 6/17/93
Complainant is not entitled to attorneys fees where respondent fulfilled its burden in a mixed motive discrimination case and complainant neither established a violation of the FEA nor was he granted any relief. Thomas v. DOC, 91-0161-PC-ER, 4/30/93
The Commission has no authority under the FEA to award compensatory damages other than to the extent §111.39(4)(c), Stats., authorizes awards for back pay. Miller v. DOT, 91-0117-PC-ER, 1/8/93
Complainant's motion for costs incurred in successfully rebutting respondent's motions for summary judgment was premature where it was filed before the hearing on the merits of complainant's charge of discrimination. Balele v. UW-Madison, 91-0002-PC-ER, 10/29/92
In a consolidated case including an appeal of a discharge decision and a discrimination complaint in which the employe prevailed, the Equal Access to Justice Act (§227.485, Stats.) does not preempt the Commission's authority to award fees under Watkins v. Labor and Industry Review Commission, 117 Wis. 2d 753, 345 N.W. 2d 482 (1984) for a FEA violation. Fees were assessed against respondent under Watkins so it was unnecessary to make an EAJA analysis. Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 10/1/92
The Commission was precluded from awarding attorneys fees and costs to complainant where those expenses arose from a proceeding before respondent's Committee on Faculty Rights and Responsibilities (CFRR) pursuant to § UWS 3.08, Wis. Adm. Code, which in turn resulted in a decision by the UW-Madison Chancellor, where the CFRR concluded there was no discrimination based on sex and the Chancellor's decision did not reach the issue of gender discrimination. The Commission lacks authority to award fees under §227.485, Stats., arising from a proceeding before another agency. The complainant was not required by the Fair Employment Act to pursue the appeal before the CFRR review under a system of referral and deferral to state agencies as is established under Title VII. The attorney work product from the CFRR appeal was not "both useful and of a type necessary to advance" the fee reimbursement proceeding before the Commission. Also, the complainant was not successful in establishing to CFRR that she had been discriminated against as alleged. Duello v. UW-Madison, 87-0044-PC-ER, 3/9/90
The Commission lacks the authority to issue a preliminary injunction with respect to a complaint filed under the Fair Employment Act. Van Rooy v. DILHR & DER, 87-0117-PC, 87-0134-PC-ER, 10/1/87
Complainant's motion for attorney's fees and costs upon the issuance of an interim decision finding probable cause was premature. Snow v. DHSS, 86-0051-PC-ER, 6/20/88
Where the respondent's decision in not appointing the complainant to a vacancy was ruled to constitute illegal discrimination under the Fair Employment Act, based on a faulty affirmative action plan, the complainant was entitled, inter alia, to retirement and fringe roll-up benefits and to back-pay computed on a quarterly basis from the first date complainant could have begun employment until the date he accepted a valid job offer. However, front pay was not awarded, even though placement in a position could not occur immediately because of the lack of availability of a position or the undesirability of "bumping" other employes 1) where an award of front pay would not further the goal of ending illegal discrimination because there was no indication that respondent continued to use a faulty affirmative action plan and 2) where front pay would not rectify the harm caused the complainant because complainant's interim earnings exceeded the total back pay liability. Complainant's requests for relocation costs and for damages due to emotional trauma, stress, humiliation, impaired reputation and the break up of a marriage followed by divorce were rejected. Kesterson v. DILHR & DER, 85-0081-PC, 85-0105-PC-ER, 4/4/88
The Commission ordered the respondent to cease and desist from discriminating and declined to award the complainant front or back pay where the only direct harm suffered by the complainant as a result of the discrimination was that he was ranked third rather than second in filling a vacant position. Any conclusions by the Commission as to potential harm suffered by the complainant in terms of fewer promotional opportunities in the future, would be speculative. Holmes v. DILHR, 85-0049-PC-ER, 4/15/87
The Commission applied a 12% annual interest rate as prejudgment interest on a back pay award. Kesterson v. DILHR & DER, 85-0081-PC & 85-0105-PC-ER, 12/29/86
In a successful claim arising from a non-selection decision, the Commission ordered respondent to offer the complainant the next available equivalent position and to give her all rights, benefits and privileges to which she would have been entitled from the first date on which she could have begun employment with respondent, until the time she is offered an equivalent position by respondent, until she indicates she is no longer interested in a position, or until the time she becomes unavailable to accept a position, whichever occurs first. Back pay was subject to specified offsets and complainant was provided an opportunity to file a motion for attorney fees. Wolfe v. UW-Stevens Point, 84-0021-PC-ER, 10/22/86
The Commission set $110 as a reasonable hourly rate, based on the affidavits in the record for awarding attorneys fees, in a whistleblower case. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
The Commission set the attorney fee multiplier at 1.2 for a complaint brought without benefit of any precedent under the whistleblower law, where there were two similar cases filed by complainant's co-workers, and by the time a contingent fee agreement was signed, intervening events had further diminished the complainant's prospects of nonrecovery. No adjustment was made for the quality of the attorney's services. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
Complainant's request for reimbursement of accommodation and meal costs in a whistleblower case was denied where the costs were associated with the hearing in Madison commencing at 9:30 a.m. and complainant's counsel was from Milwaukee. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
In exercising its discretion to award attorney's fees under the whistleblower law, the Commission recognizes that the goal is to facilitate meritorious suits brought by state employes. Fee awards should be sufficient to attract competent counsel without producing a windfall. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
In computing attorney fees, the Commission reduced the attorney's time estimates by 25% in order to encourage counsel to maintain contemporaneous time and charge records. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
In computing attorney fees, the Commission reduced the fee by the time associated with filing a motion that was clearly without merit. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
The awarding of benefits other than salary and the provision of prejudgment interest fall within the general remedial authority granted to the Commission under §230.85(3)(a), Stats., in whistleblower cases. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
The Commission applied a 12% annual rate for computing prejudgment interest on a back pay award in a whistleblower case. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
The Commission used the method of computing back pay (and interest thereon) on a quarterly basis in a whistleblower case. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
Respondent's unconditional offer to reinstate the complainant terminated the accrual of any back pay obligation as of the date the offer was accepted, citing Anderson v. LIRC, 111 W. 2d 245 (1983). At the time of the offer, the complainant was employed under a teaching contract with a parochial school. However, the complainant had been willing, one month earlier, to accept employment elsewhere and "break" the contract. Respondent was not aware of the contract provisions at the time of its reinstatement offer. In addition, teachers regularly failed to provide the 30 day notice required to terminate the contract and the parishes never sought to invoke a liquidated damages provision against those teachers. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 7/11/86; affirmed by Dane County Circuit Court, Board of Regents v. Pers. Comm. 86-CV-4056, 9/29/87; affirmed in part, reversed in part by Court of Appeals, 147 Wis.2d 406; 433 Wis.2d 273, 11/3/88 (Note: the effect of the decision was to reverse the Commission’s award of attorney’s fees based on a multiplier to compensate for the contingent nature of the case.)
The Commission has the authority to grant reasonable attorney's fees as a remedy upon a finding of illegal discrimination under the Wisconsin Fair Employment Act, citing Watkins v. LIRC, 117 Wis 2d 753 (1984). Ray & Gray v. UW-La Crosse, 84-0073, 0086-PC-ER, 5/9/85
Training for those persons who had supervised the complainant was ordered where discrimination based on creed had been established and where complainant was no longer employed by the respondent. Laber v. UW-Milwaukee, 81-PC-ER-143, 11/28/84
If appellant would be able to establish that respondent discriminated against him by delaying his return to his former position after he suffered a back injury, appropriate remedies might include returning his used sick leave hours and awarding vacation days that he would have earned absent the discrimination. However, appellant would not be entitled to a cash payment in lieu of any sick days lost as such an award would go beyond making the complainant whole. Ray v. UW-La Crosse, 82-PC-ER-13, 7/7/83
Where discrimination was found on the basis of unequal treatment of the complainant, who had been guilty of misconduct which would have supported some discipline, and some of the discipline imposed had been reduced through the contract grievance procedure, the first suspension would be rescinded to comport with the discipline the respondent imposed on a white employe with a similar record, the second suspension would be reduced in length on the theory that there would have been a less severe penalty on a first offense, and the third suspension (reduced from a discharge in the grievance procedure) would not be reduced because it could not be said that that suspension would have been unlikely to have occurred if it had been handled nondiscriminatorily. McGhie v. DHSS, 80-PC-ER-67, 3/19/82
760.2 Mixed motive
Respondent showed that it would have made the same decision to terminate complainant's probationary employment absent his arrest where complainant failed to report his arrest, in violation of work rules, and respondent has a policy to terminate probationary employes who have a work rule violation. Thomas v. DOC, 91-0161-PC-ER, 4/30/93
Complainant is not entitled to attorneys fees where respondent fulfilled its burden in a mixed motive discrimination case and complainant neither established a violation of the FEA nor was he granted any relief. Thomas v. DOC, 91-0161-PC-ER, 4/30/93
Respondent satisfied its burden of proof under the Price Waterhouse affirmative defense by showing that it would have selected the successful candidate even if complainant had not been eliminated from the running by his conviction record. Thomas v. DHSS, 91-0013-PC-ER, 4/30/93
While an employe's exclusive remedy for the failure to rehire where the employe has suffered a compensable injury is under the Worker's Compensation law, exclusivity comes into play only when the refusal to rehire has a causal relationship to the work-related injury. An employe who suffers a work-related injury and subsequently is denied rehiring because of national origin is not be precluded from pursuing a charge of discrimination based on national origin. Also, if the employer found out that the same employe also has an arm condition and refused to rehire him on that basis, the employe is not be precluded from pursuing a claim of handicap discrimination with respect to the failure to rehire because of the arm condition. If the employe established that the arm condition played a role in the decision not to rehire, the employer would have to prove by a preponderance of the evidence that it would have reached the same decision relative to non-reappointment even if the arm condition had not figured into the decision. Elmer v. UW-Madison, 88-0184-PC-ER, 8/24/89
Where the employer acted contrary to the statute by considering gender, it can avoid liability by proving, as an affirmative defense and by a preponderance of the evidence, that it would have reached the same employment decision in the absence of consideration of gender. The Commission abandoned the "in-part" test it originally espoused in Smith v. UW, 79-PC-ER-95, 6/25/82, and adopted the causation test set forth in Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989). Jenkins v. DHSS, 86-0056-PC-ER, 6/14/89
There is a violation of the Fair Employment Act if illegal motives played any part in the employment decision; the complainant does not have to establish that "but for" the discrimination the personnel action would not have been taken. Furthermore, even if the Commission were not to apply this standard, since there was direct and believable evidence of discriminatory intent, the burden would shift to the respondent to prove by a preponderance of the evidence that the adverse action would have been taken even in the absence of a discriminatory motive, which the respondent here failed to do. Conklin v. DNR, 81-PC-ER-29, 7/21/83
Retaliatory motives need only have played some part in the adverse employment action to support a finding of discrimination, and the Commission rejects the "but for" test (i.e., the decision would not have been reached "but for" discrimination) for determining whether retaliation played a legally sufficient part in the decision. Smith v. UW, 79-PC-ER-95, 6/25/82
760.4 Voluntary resignation/constructive discharge
Complainant would have to prove the existence of intolerable working conditions to sustain a showing of constructive discharge McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Constructive discharge was established where complainant's superior intended to force the complainant to resign, where he told complainant that if she did not sign a previously prepared letter of resignation he would fire her and where a reasonable person would resign rather than have an affair with a co-worker disclosed in a letter of discharge as had been threatened. Winterhack v. DHSS, 82-PC-ER-89, 8/31/84
760.6 Proof of general atmosphere of discrimination
Proof of a general atmosphere of discrimination is not the equivalent of proof of discrimination against an individual. Such evidence may be considered with other evidence to ascertain whether racial discrimination existed. Stonewall v. DILHR, 79-PC-ER-19, 5/30/80
760.9 Other
The Commission has the jurisdiction to hear an allegation that the utilization of a rule promulgated by DER, which established minimum and maximum rates of pay upon reinstatement and required the appointing authority to exercise discretion in setting a particular rate within the available spectrum, has a disparate impact on reinstated employes based upon their protected status. However, where the complainant did not advance at least some theory as to how the rule resulted in a disproportionate effect on one or more protected groups with respect to which the complainant had standing, the disparate impact claim was dismissed. The policy of making discretion available cannot be discriminatory under a disparate impact analysis unless and until there is evidence establishing that the discretion has been exercised in a discriminatory manner. Butzlaff v. DER, 91-0043-PC-ER, 8/8/91
In a discharge case, there are two primary ways of establishing a prima facie case. The complainant may attempt to establish that he or she was a member of a protected class and was discharged, and either that he or she did not commit the misconduct or substandard performance as alleged by management, or that other non-minority employes who engaged in apparently similar misconduct or poor performance were not similarly disciplined. In many cases the complainant will pursue both avenues in the alternative. Berryman v. DHSS, 81-PC-ER-53, 8/1/84
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.