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782 Occupational safety and health retaliation
782.01 Generally
Complainant’s occupational safety and health retaliation claim was not defeated by his failure to report unsafe conditions to the Department of Commerce, citing Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89. Complainant had filed an incident report with management and his union of unsafe working conditions. Leinweber v. DOC, 97-0104-PC-ER, 8/14/97
Workplace violence is regulated under the general duty clause of the federal Occupational Safety and Health Act and, because Wisconsin’s public employe safety and health provisions were intended to give covered state employes the same protections as employes in the private sector, complainant’s incident report to management and his union relating to threatening telephone calls and the absence of any staff member, other than complainant, a social worker, on a floor at a hall in the Drug Abuse Correctional Center, related to dangers protected under state law. Leinweber v. DOC, 97-0104-PC-ER, 8/14/97
782.02(2) Finding of no probable cause
No probable cause was found as to complainant’s FEA retaliation, occupational safety and whistleblower claims arising from the decision not to reclassify his position where respondent contended that the request was denied because complainant’s position did not meet the requirements of the higher classification and complainant did not show respondent’s decision was unreasonable or that respondent applied the specification’s requirements more stringently for him than for employes who had not engaged in protected activities. Holubowicz v. DOC, 96-0136-PC-ER, 4/24/97
No probable cause was found as to complainant’s occupational safety and whistleblower claims arising from the decision to require him to undergo an interview for a vacant position along with other names on the certification list rather than to transfer into the position without an interview where the record did not indicate that the alleged retaliator knew the position’s classification had been lowered prior to the date the certification list was generated, respondent had posted the position for transfer prior to accepting applications for competition and the record did not indicate that respondent would have had an obligation to post the position for transfer a second time, and complainant waited until minutes before his interview started before requesting an opportunity to transfer without an interview. Holubowicz v. DOC, 96-0136-PC-ER, 4/24/97
Complainant failed to sustain his burden at the probable cause stage with respect to his allegation of constructive denial of his reclass request in retaliation for occupational safety and health activities where complainant did not submit the documents necessarily included in a formal request for reclassification or follow the published procedures which apply in the event an employe’s supervisor does not respond to such a request. No probable cause was also found with respect to respondent’s directive that supervisors notify subordinates orally of the denial of a reclass request when management has initiated the request. Holubowicz v. DOC & DER, 94-0030-PC-ER, 11/14/96
No probable cause was found with respect to the respondent's scheduling the complainant for a pre-disciplinary hearing where respondent's practice was to schedule such hearings whenever an investigation had identified a work rule violation and the person who had conducted the investigation was unaware that complainant had engaged in a protected activity. Holubowicz v. DHSS, 88-0097-PC-ER, 9/5/91
No probable cause was found with respect to the decision to terminate complainant's probationary employment where respondent's approach toward complainant was consistent throughout her probationary period and where it was not clear that complainant had engaged in any protected activity. Bender v. DOR, 87-0032-PC-ER, 8/24/89
No probable cause was found with respect to various disciplinary actions where the complainant admitted most of the charges against him, complainant's disciplinary problems started substantially before he filed his first discrimination complaint and respondent could have discharged him earlier when it found he had falsified a medical excuse but instead allowed him to continue working. Sheridan v. UW-Madison, 86-0103-PC-ER, 87-0141-PC-ER, 2/22/89
782.03(2) Finding of no retaliation
Complainant failed to show pretext with respect to various disciplinary actions where there was no evidence to rebut the testimony of his immediate supervisor 1) that he was unaware of complainant’s protected activities and 2) that he had not been directed by anyone else in management to impose the discipline, and where complainant had not demonstrated that there were other employes who were actually similarly situated to him who did not receive similar discipline because 1) those employes were under a different supervisor and 2) complainant failed to establish the reasons for the other employe’s absences in light of respondent’s attendance policy which called for consideration of mitigating circumstances before the imposition of discipline. Marfilius v. UW-Madison, 96-0026-PC-ER, 4/24/97
No retaliation was shown in regard to complainant's performance evaluation where complainant had reported safety and health problems over a considerable period of years, had not suffered any adverse employment consequences but had been complimented, recognized and rewarded for her efforts. Complainant, a Building Maintenance Helper, had more recently failed to notify her supervisors of health and safety violations in her building, had failed to communicate effectively with her supervisors on various occasions, had failed to carry out a work assignment and had failed to wear proper safety equipment. McKibbins v. UW-Milwaukee, 94-0099-PC-ER, 4/4/95
Respondent's decision not to allow inclusion of the union steward or attorney requested by the complainant to represent the complainant at an investigative meeting was not retaliatory where there was nothing in the department-wide policy which indicated that the represented employe had the choice to select either a personal attorney or a local union grievance representative who was unavailable at the time of the hearing and there was no evidence that on other occasions, delays in the hearings had been permitted to allow for representation by either a personal attorney or by a union representative who was unavailable at that time. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
Respondent's decision to suspend the complainant for ten days for unauthorized distribution of literature on the grounds of a correctional institution was upheld where management had previously indicated a strong opposition to the practice of distribution union newsletters in the institution, antagonism between the complainant and management preceded the complainant's protected activities, those protected activities were not significant departures from complainant's previous conduct, the person who made the final decision to suspend the complainant was unaware that complainant had engaged in any of the specific protected activities and within the previous 10 months, the complainant had received a written reprimand, and two three-day suspensions. Respondent's decision not to modify the suspension after another employe admitted to distributing some of the literature was upheld where the policy violated by the complainant did not differentiate the degree of malfeasance based on the amount of information found to have been distributed. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
The following actions by the respondent were not found to be retaliatory: 1) the refusal to provide assistance when the complainant called for help where testimony indicated assistance was not required, 2) the decision to investigate a report which raised serious questions about complainant's conduct, 3) the decision to substitute a day of suspension for a previously scheduled day of vacation where the person who made the change was unaware that the change was not desired by the complainant, 4) the decision to deny complainant admittance to the correctional institution grounds during the period of his suspension where respondent's action was consistent with existing policy. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
Complainant reasonably refused to assist in the delivery of a drum of sulfuric acid because of a reasonable and good faith belief that the task involved a danger of serious injury or death. The complainant also engaged in protected activity when he sent DILHR a copy of a memo to his supervisor specifically questioning the safety of moving the acid. Complainant's subsequent termination was based in part on these activities but these factors were not a substantial reason for the termination and the termination would have occurred in the absence of these factors. Complainant's attitude toward management throughout the course of his four months of employment was contentious and in some respects contumacious, including one statement that the supervisor's memo would make good toilet paper. Strupp v. UW-Whitewater, 85-0110-PC-ER 7/24/86; affirmed by Milwaukee Circuit Court, Strupp v. Pers. Comm., 715-622, 1/28/87
Complainant was found not to have engaged in a protected activity where the only evidence of safety-related activity was that the complainant discussed health and safety matters with a co-worker and where complainant failed to establish that respondent believed that he had "filed" an oral safety complaint. Even if complainant had shown he had engaged in a protected activity, he failed to establish a causal connection with his subsequent discharge. Branski v. UW-Milwaukee, 82-PC-ER-98, 2/29/84
782.04 Prima facie case
Complainant failed to establish a prima facie case of public employe safety and health retaliation where he failed to present any evidence of having participated in a protected disclosure of health or safety hazards. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98
A wage claim, two grievances concerning safety issues and an application for FMLA leave constitute protected activities under at least one statute among the FEA, occupational safety and health provisions and the FMLA. Marfilius v. UW-Madison, 96-0026-PC-ER, 4/24/97
Filing Abnormally Hazardous Task Reports and making other disclosures to the Department of Industry, Labor and Human Relations were protected public employe health and safety activities. McKibbins v. UW-Milwaukee, 94-0099-PC-ER, 4/4/95
Comments and ratings on a performance evaluation are reviewable under the public employe health and safety provisions. McKibbins v. UW-Milwaukee, 94-0099-PC-ER, 4/4/95
Complainant failed to establish a prima face case of retaliation where the person who decided not to rescind the complainant's resignation was not aware of the complainant's protected activity. Radtke v. UW-Madison, 92-0214-PC-ER, 11/22/94
Nothing in the statute suggests that a grievance directed to management and relating to a health or safety concern cannot constitute the exercise of a right under the law, entitling the grievant to protection from retaliation. Comments to the media were also protected conduct. However, a grievance referring only to a single instance of prior conduct by management with no indication that the conduct represented a policy did not relate to an ongoing safety concern. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
All claims meeting the standard of "discipline" under the whistleblower law constitute adverse actions under the public employe safety and health law. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
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.