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786 Fair Employment Act retaliation
786.01 Generally
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
The use of the term "bitch" to refer to complainant does not, in and of itself, lead to a finding of discrimination/retaliation. Stygar v. DHSS, 89-0033-PC-ER, etc., 4/17/95
An allegation that an employe was terminated in retaliation for having taken FMLA covered leave states a claim under the FMLA. Additionally, an employe who alleges she attempted to exercise a right under the FMLA and then was retaliated against because of that states a claim under the FEA retaliation provisions, §111.322(2m)(a), Stats. Ripp v. UW-Extension, 93-0113-PC-ER, 6/21/94
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
786.02(1) Finding of probable cause
Probable cause existed as to a decision to transfer the complainant, as opposed to someone else, to another position within the agency where one of the reasons respondent articulated for its decision was not supported by the record and certain other conduct cast doubt on the other reasons. However, no probable cause was found with respect to a claim of sex discrimination. Ruff v. Office of the Commissioner of Securities, 86-0141-PC-ER, 87-0005-PC-ER, 9/26/88
Probable cause was found with respect to respondent's decision not to assign the complainant to a three day weekend work pattern where the respondent failed to produce a copy of the posting of the vacancy, complainant's interest in that work pattern was well-known and respondent had contended it hired a non-foreign person from outside the institution because no existing employes had responded to the posting. No probable cause was found as to other reassignment decisions. Boyle v. DHSS, 84-0090, 0195-PC-ER, 9/22/87, modified 10/21/87
Probable cause was found with respect to respondent's decision to place the complainant on a leave of absence where complainant had previously said he might commence legal action to attempt to obtain an accommodation and an employe of the affirmative action office said "We can play hardball too." Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87
786.02(2) Finding of no probable cause
There was no probable cause to believe respondent discriminated against complainant based on sex or retaliated against complainant when respondent terminated his employment, citing 8 specific acts of patient abuse, abusing a co-worker, reading while in work status, demonstrating an undermining attitude, leaving the unit for a smoking break, shoving and screaming at a co-worker and leaving the work unit for an extended break without permission. Although complainant presented evidence that co-workers took unauthorized smoke breaks and read papers, books or magazines in unauthorized areas, complainant failed to show these incidents were seen by or reported to supervisors. Henebry v. DHSS, 96-0023-PC-ER, 7/29/98
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 FEA retaliation claim 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 was insufficient to establish that the decision-maker was aware of complainant’s participation in activities protected under the FEA. Holubowicz v. DOC, 96-0136-PC-ER, 4/24/97
There was no probable cause with respect to respondent's exercise of discretion setting complainant's starting rate of pay where the person who made the decision was not aware of the complainant's identity. Butzlaff v. DHSS, 91-0044-PC-ER, 11/19/92
No probable cause was found with respect to the decisions not to select the complainant for either of two vacancies where the successful candidates were better qualified for the positions. Even though there was no showing that one of the interviewers was aware of the complainant's prior protected activities, that interviewer's ranking of the candidates was the same as the other interviewers. Cozzens-Ellis v. UW-Madison, 87-0070-PC-ER, 2/26/91
No probable cause was found with respect to the decision not to create a new position for which the complainant would likely have been a candidate where, even though there were some anomalies, the respondent's staffing pattern did not provide for such a position. Harris v. DILHR, 86-0021, 0022-PC-ER, 2/22/90
No probable cause was found with respect to the decision not to promote the complainant, an Unemployment Benefit Specialist 2, for a vacant UBS 4 position where the appointing authority had, without exception since 1985, only promoted persons to the UBS 4 level who were already UBS 3's. Reclassification from UBS 2 to 3 was premised on passing a review of the quality of work performed while employed as a UBS 2. Others who were not in the same protected category as the complainant were similarly treated. Harris v. DILHR, 86-0021, 0022-PC-ER, 2/22/90
No probable cause was found with respect to a decision not to hire the complainant, who had previously filed a discrimination complaint, where two of the three interview panelists were unaware, at the time they scored the interviews, of complainant's protected activities and deficiencies in the selection process affected all of the candidates and were not specifically directed at the complainant. Bloedow v. DHSS, 87-0014-PC-ER, etc., 8/24/89
No probable cause was found with respect to a decision not to hire the complainant for two assistant professorship vacancies where the complainant had not renewed her expired application. Chandler v. UW-La Crosse, 87-0124-PC-ER, 88-0009-PC-ER, 8/24/89
No probable cause was found with respect to various nonselection decisions where complainant failed to show that her experience, knowledge, interest and motivation or interview performance were actually superior to those of the successful candidates, that the hiring criteria were not properly related to the duties and responsibilities of the subject position, or that the criteria were not properly applied by the individuals with effective hiring authority. In addition, there was no evidence that the individuals with hiring authority knew or had any reason to know that complainant had filed a discrimination complaint. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
No probable cause was found with respect to two decisions denying reclassification of the complainant's position where the duties and responsibilities of the position did not appear to meet the requirements for classification at the higher level and, as to one of the decisions, the complainant acknowledged that her position did not merit reclassification. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
No probable cause was found with respect to a memo critical of complainant's work performance where the problems cited in the memo were ongoing and had been observed and reported by a previous supervisor and by more than one co-worker. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
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
No probable cause was found with respect to the decisions to issue complainant a written reprimand, suspend him and discharge him, as well as to certain conditions of employment where complainant repeatedly called in sick, left work and ultimately failed to appear at work. Complainant filed a complaint of discrimination after there had been recommendations to discharge him and on the same day in which he failed to appear at an investigatory meeting. Rose v. DOA, 85-0169-PC-ER, 7/27/88
No probable cause was found as to the decision not to select the complainant for a vacant permanent position of English teacher, where the successful candidate had a higher score on the questionnaire and complainant, who had been filling the position as an limited term employe, had an inferior job reference based on respondent's first-hand knowledge of complainant's work performance. Browne v. DHSS, 85-0072-PC-ER, 8/5/87
No probable cause was found as to claims relating to discharge and providing negative job references where complainant's employment as a limited term employe ended when complainant used compensatory time to finish the 1044 hour maximum of his LTE appointment and respondent's references were based on complainant's poor work record. Browne v. DHSS, 85-0072-PC-ER, 8/5/87
No probable cause was found as to respondent's decision to deny complainant's reclassification request. Schultz v. DER, 83-0119-PC, 84-0252-PCO 85-0029-PC-ER, Schultz v. DER & DILHR, 84-0015-PC-ER, 8/5/87
No probable cause was found as to the decision not to rehire the complainant to an LTE position where in 1981 and 1982, her supervisors believed her attitude and performance had deteriorated to below the level of a good employe. The complainant's protected activity post-dated this substandard attitude and performance. Rose v. DNR, 83-0055-PC-ER, 84-0081-PC-ER, 4/15/87
There was no probable cause in regard to the discharge of the complainant from his Building Maintenance Helper 2 position where there was no evidence that retaliations played a part in the decisions and where complainant did not perform his work properly, made threatening statements/gestures to co-workers, supervisors and non-employes and had unexcused absences. Brummond v. UW-Madison, 84-0185-PC-ER, 85-0031-PC-ER, 4/1/87
No probable cause was found with respect to a selection decision (decision #2) for a vacant position which, when filed two months earlier (decision #1) had caused complainant to file a discrimination complaint. In decision #1, respondent had ranked complainant behind the successful candidate (A) and a back-up candidate (B) at a time before complainant's first charge had been filed and before there was any possible motive for retaliation. When A indicated he would be leaving after only a few months on the job, the respondent had a strong reason to attempt to reactivate the register and to offer the job to the backup candidate, rather than to have gone through another staffing process that would have resulted in the position being vacant for several more months. Winters v. DOT, 84-0003, 0199-PC-ER, 9/4/86
The complainant failed to establish a causal connection between the filing of her initial complaint in 1979 and her layoff in 1983 where, in the interim 4 year period, she was subjected to no disciplinary action, received satisfactory performance evaluations, and had no employment problems and where the layoff was clearly based on budget considerations and a change in computer operations from a "batch" system to an "on-line" system. Mitchell v. UW-Milwaukee, 84-0170-PC-ER, 4/4/86
No probable cause was found with respect to suspensions and conditions of employment where complainant did not accept management's consistently applied limitations as to the type of assistance to be provided by persons employed in the Disabled Veteran Outreach Program (as was the complainant) and where complainant failed to establish that he was treated any differently than his co-workers. Poole v. DILHR, 83-0064-PC-ER, 12/6/85
The Commission found no probable cause where complainant based his claim on a civil action he had filed in circuit court and where the civil complaint did not refer to any actions on complainant's part to oppose any discriminatory practices or to make a complaint, testify, or assist in any proceeding under the Wisconsin Fair Employment Act. Bisbee v. DHSS, 82-PC-ER-54, 6/23/83; affirmed by Dane County Circuit Court, Bisbee v. State Pers. Comm., 617-636, 10/3/84
No probable cause was found on the issue of retaliatory discrimination with respect to respondent's failure to hire the complainant in the misdemeanor unit of respondent's adult criminal division where, before the complaint was filed, the respondent had consistently refused to hire the complaint in that unit. Taylor v. State Public Defender, 79-PC-ER-136, 8/5/82
The Commission found no probable cause in regard to the termination of complainant's employment where there was ample evidence of the complainant's inadequate performance, there was little if any evidence that her asthmatic condition was causative with respect to her performance problems, and although the complainant's supervisor was aware of certain complaints by the complainant to the vice-chancellor, this was considered of little significance against her record of inadequate performance. Way v. UW, 78-122-PC, 79-PC-ER-4, 3/8/82
The Commission found no probable cause to believe the complainant had been discriminated against on the basis of sex and retaliation with respect to her non-appointment to a faculty position, where she was not placed on the "short list" for further consideration, and the record fully supported the new staff committee's opinion that she was not a historical geographer, the article that she had published was not considered that impressive or that material by the Committee members, and, with respect to alleged "contradictions" in the respondent's position, the Commission stated that it should not be considered unusual that a number of faculty members testifying as to their understanding as to the needs of the department, and their evaluations of candidates for a faculty position, would not speak with one voice, nor should it be considered unusual that the search process was not able to meet its goals at every step of the process. Rubin v. UW, 78-PC-ER-32, 2/18/82
No probable cause was found where the transfer of a handicapped employe was preceded by a reasonable good faith inquiry into his medical condition and physical capabilities. Kleiner v. DOT, 80-PC-ER-46, 1/28/82
No probable cause was found in decision not to hire complainant as an instructor in the geography department of UW-Oshkosh where an initial decision was made before complainant had filed a written application, the process was then reopened and complainant was still not hired. Four members of the department's faculty who were also members of the selection committee all had poor opinions of the complainant based on complainant's earlier experience as a teacher there. In addition, nothing in the materials submitted to the selection committee indicated that complainant had been active in the geography profession during the previous 10 years. Thalhofer v. UW-Oshkosh, 79-PC-ER-22, 9/23/81; affirmed by DILHR, 11/7/83; affirmed by LIRC, 2/16/84
No probable cause was found with respect to a complaint of retaliation in connection with a failure to appoint where it was noted that the decision was a collegial one participated in by the departmental faculty, and that the complainant had not applied for a current vacancy but rather had asked the department in essence to create a new professorship in an area that the department had already established as a relatively low priority. Acharya v. UW, 78-PC-ER-53, 2/13/81; affirmed by DILHR, 11/20/81; affirmed by LIRC, 1/9/82
No probable cause found. Stasny v. DOT & DP, 79-192-PC, etc., 1/12/81
786.03(1) Finding of retaliation
Respondent retaliated against complainant by failing to provide him, within a reasonable period of time, a chair with a headrest as requested by complainant in a Disability Accommodation Report form. Complainant had previously filed discrimination complaints with respondent's affirmative action office and with the Personnel Commission. Respondent failed to explain or justify the delay of more than a year. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98
786.03(2) Finding of no retaliation
The record established that respondent did not retaliate against complainant for taking FMLA leave, but instead that he was given a negative performance evaluation and merit award reduction as the result of his failure to make up canceled classes or to secure coverage by colleagues, as well as his failure to make satisfactory progress on the requirements of his tenure-review plans, and that he was required to return to a five-day work week because respondent was concerned about recent legislative attention and was seeking to avoid potential conflicts with state work reporting and leave requirements. Lubitz v. Wis. Pers. Comm. & UW System, Court of Appeals, 99-0628, 2/24/00, affirming Lubitz v. UW, 95-0073-PC-ER, 1/7/98
Respondent did not retaliate against complainant when it directed her to check in and out of work via electronic mail. Complainant had a flexible schedule and respondent was otherwise unable to know her actual work hours. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98
Respondent did not retaliate against complainant when it issued her a written reprimand. Complainant admitted she had violated her supervisor's directive, the reprimand was consistent with respondent's disciplinary policy and complainant had been given a verbal warning on the same topic. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98
There was no basis for concluding there was anything questionable about the rating panel's evaluation of complainant's Achievement History Questionnaire materials where the complainant had been instructed to submit a two page AHQ addressing four factors, complainant, alone among the applicants, submitted four pages, and the specialist administering the selection process removed two pages after deciding it would be inappropriate and unfair to evaluate complainant on the basis of all four pages. The rating panel evaluated the two pages of complainant's materials and appropriately assigned him a score below the passing level. Complainant's race discrimination and retaliation claims failed. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
It was in keeping with the civil service code and other evidence of record that existing career executives would be certified for consideration in filling a vacant career executive position, without having to go through an examination process. The selection process for the position was conducted on an "Option IV" basis under the career executive program. Applicants who were not career executives were evaluated on the basis of an Achievement History Questionnaire. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
An employer's failure to follow its own policies can be probative of pretext. Where the staffing manual called for the use of "blind" scoring procedures whenever possible, and there was no apparent reason why applicants' names were not deleted from the resumes they submitted as part of their Achievement History Questionnaire, this could constitute some evidence of pretext. However, in light of the other evidence of record, complainant failed to show that respondent's explanation for rejecting complainant for the position in question was a pretext for race discrimination or retaliation. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Where the record established that a balanced panel was desirable under relevant civil service policies but was not mandatory, and where respondents did not provide an explicit explanation as to why they did not have a balanced panel, the absence of a balanced panel could be considered to be probative of pretext. However, in light of the other evidence of record, complainant failed to show that respondent's explanation for rejecting complainant for the position in question was a pretext for race discrimination or retaliation. Balele v. DOC et al., 97-0012-PC-ER, 10/9/98
Respondent did not retaliate against complainant under the Family Medical Leave Act or the Fair Employment Act for having filed prior FMLA claims when it terminated his employment where respondent's action was consistent with the manner in which respondent treated other apparently similarly situated employes and where there was no showing that respondent's action was per se unreasonable. Complainant had chronic attendance problems over a lengthy period of time and the record did not support a conclusion that complainant's termination resulted from anything other than complainant's lengthy and continuing history of attendance problems. Preller v. UWHCB, 96-0151-PC-ER, etc., 8/18/98; affirmed Dane County Circuit Court, 98-CV-2387, 12/6/99
In dicta, the Commission concluded that respondent did not retaliate against complainant for engaging in fair employment activities when it investigated him for a possible work rule violation where there was no evidence to contradict respondent’s witnesses that the procedure followed in complainant’s case was consistent with how other disciplinary cases were handled by the agency, even though that procedure was contrary to a training manual issued by the Department of Employment Relations where the respondent had never formally adopted any formal disciplinary procedure. Klein v. DATCP, 95-0014-PC-ER, 5/21/97
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
Complainant failed to sustain his burden of establishing that a 10 day suspension constituted discrimination based on national origin or ancestry or retaliation for engaging in FEA activities where respondent believed that a coworker was genuinely upset by complainant’s comments and where complainant had a disciplinary history which included a letter of reprimand and a one-day suspension which also involved allegations of harassing or threatening conduct, even though the coworker’s reaction to complainant’s conduct was unreasonable. Zeicu v. DHSS [DHFS], 96-0043-PC-ER, 1/16/97
Complainant failed to sustain his burden of establishing that the decision not to select him for a temporary position constituted discrimination based on national origin or ancestry or retaliation for engaging in FEA activities where the successful candidate was better qualified and complainant’s work history included a five-day suspension. Even though the successful candidate also had received a five-day suspension, the nature of those offenses were not as serious as complainant’s in the context of the vacancy. Zeicu v. DHSS [DHFS], 96-0043-PC-ER, 1/16/97
No discrimination based on sex, sexual orientation or race, violation of FMLA, or retaliation based on FEA activities was found with respect to respondent’s decision to discharge the complainant where respondent concluded that complainant had violated various work rules when she gave a suggestive note to a coworker, telephoned the same coworker at home, and admitted to using profanity towards various other coworkers and about a client. Mitchell v. DOC, 95-0048-PC-ER, 8/5/96
No discrimination was found on the bases of age, national origin/ancestry or sex, nor was FEA retaliation found, relative to the decision not to retain complainant as a faculty member in respondent's Industrial Engineering Department where complainant did not complete her Ph.D. by the date to which she had contractually agreed and where respondent had concerns about complainant's teaching effectiveness, the evidence of which included routine student evaluations as well as a petition filed by a group of students with a dean. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
Respondent did not discriminate on the basis of arrest/conviction record or retaliate against the complainant for FEA activities regarding its decision to reprimand him, even though other employes similarly situated were not reprimanded, where at the time the reprimand was imposed, the supervisor did not have knowledge of the actions of the other employes and management revoked the reprimand thereafter. Erickson v. WGC, 92-0207-PC-ER, 92-0799-PC, 5/15/95
No sex discrimination or FEA retaliation existed as to a variety of conditions of employment, including relocation, removing a sign in complainant's office, discussing an internal complaint, denying complainant's request for an adjusted work schedule, declining to investigate the defacement of articles written by complainant, not including complainant in a meeting, the nature of working relationships with co-workers, disclosing to co-workers that complainant had been disciplined, requiring complainant to attend certain training, assignment of duties, responses to complainant's requests for changing her duties, scheduling meetings, use of a job performance improvement plan and union representation at weekly meetings. Stygar v. DHSS, 89-0033-PC-ER, etc., 4/17/95
No discrimination occurred when respondent did not hire complainant, who is black and had previously filed a race discrimination claim against respondent, for a limited term carpenter job where no authorization to hire had been received as of the date the complainant reported for work. A second applicant, who was white, was also not hired on that date, although the second applicant did get hired on a later dated. Weaver v. UW-Madison, 93-0022-PC-ER, 11/3/94
Numerous incidents which complainant alleged constituted a pattern of harassment against her because of her handicap and in retaliation for pursuing an accommodation request and making disclosures covered by the Whistleblower Law were analyzed and it was found that complainant failed to satisfy her burden of proof. As to two matters for which respondent's explanations did not have an accurate basis in fact, any ulterior motives by management were far more likely related to labor-management strife and a related FLSA lawsuit than to complainant's handicap or her protected activities in connection therewith. A conclusion of discrimination is not mandated by a finding of pretext. St. Mary's honor Center v. Hicks, 125 L.Ed. 2d 407, 113 S.Ct. 1742 (1993); Kovalic v. DEC Intl. Inc., 161 Wis. 2d 863, 876-78, 469 N.W. 2d 224 (Ct. App. 1991). Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Complainant failed to demonstrate sex discrimination or fair employment retaliation with respect to her performance evaluation where the statements in her evaluation were an accurate reflection of her failure to meet clearly established performance expectations. Stricker v. DOC, 92-0058-PC-ER, 92-0201-PC-ER, 3/31/94
Complainant failed to show disparate treatment or retaliation in regard to respondent's request for medical information where complainant had been absent on medical leave for a substantial period of time, where complainant had resisted all attempts by respondent to obtain information relating to her medical condition, and where respondent needed to arrange for coverage of complainant's responsibilities as a lead worker. Dahlberg v. UW-River Falls, 88-0166-PC-ER, 89-0048-PC-ER, 3/29/94
The faculty vote not to retain the complainant resulted from his ineffectiveness as a teacher and a schism within the faculty between those with and without a Ph.D. rather than due to complainant's support for the hire of a minority for a vacant instructor post. Fleming v. UW-River Falls, 92-0012-PC-ER, 12/13/93
Respondent's decision to terminate the complainant's employment was upheld where only one of three of the persons involved in deciding to terminate his employment was aware of the prior protected activity, that person's notes and conduct were comparable to those of persons who were unaware of the protected activity and complainant failed to show that he performed his job satisfactorily. Green v. DHSS, 92-0237-PC, 12/13/93
Respondent did not retaliate under the FEA against complainant, who had brought his salary overpayment to respondent's attention through the filing of an appeal, when respondent then attempted to resolve it prior to hearing. Harris v. DILHR, 89-0151-PC-ER, 6/23/93
Respondent did not retaliate against complainant by taking action to collect a salary overpayment where complainant failed to show that a situation identical to or similar to his had arisen and been resolved by respondent in a manner different than how complainant's situation was resolved. Harris v. DILHR, 89-0151-PC-ER, 6/23/93
Where the complainant was incapable of working at all, and there was no foreseeable change in his condition, the employer had a legitimate, nondiscriminatory reason for termination which was not shown to have been a pretext for retaliation. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92
Respondent did not discriminate against complainant on the basis of handicap or retaliation with respect to conditions of employment. While the record reflected a poor relationship between complainant and his supervisor, there was no reason to conclude that this was attributable to appellant's handicap or to retaliation as opposed to a number of other possible reasons. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92
No retaliation or handicap discrimination was found as to a termination decision where there were consistently negative evaluations of complainant's work by a number of supervisors and the supervisor who spent the most time directly supervising complainant was then unaware of his earlier complaint. The complainant also grabbed a co-worker's wrist, bruising it enough that a doctor recommended a brace and a week's absence from work. Bjornson v. UW-Madison, 91-0172-PC-ER, 8/26/92
No retaliation was found with respect to the decision to transfer the complainant where the decision was found to have been based on legitimate objectives associated with the functioning of the respondent rather than in retaliation for complainant's prior complaint of discrimination. Ruff v. Office of the Commissioner of Securities, 87-0005-PC-ER, 6/25/90; modifying decision issued 5/16/90
Respondent was found not to have retaliated against complainant in failing to hire him. It was logical to conclude that once the appointing authority learned that it would be illegal to ignore complainant's application for a vacant position merely because complainant had previously filed a discrimination complaint, the appointing authority did not continue to consider the complaint as a factor in the hiring decision and the appointing authority agreed with the unanimous recommendation of an advisory committee that another applicant was more suitable. Smith v. UW, 79-PC-ER-95, 6/25/82
Although there was evidence that certain unspecified transfers had been accomplished by the respondent in an expedited manner, the transfer in question was handled within a normal or average time range and the fact that it had not been processed more expeditiously was not found to have been retaliatory. McGhie v. DHSS, 80-PC-ER-67, 3/19/82
No discrimination was found where the complainant's contract was not renewed, the evidence showed only that there was a dispute between her and other faculty members regarding a curriculum matter, the substantive reasons for non-renewal given by respondent were not challenged, five of the six instructors non-renewed were males, and the complainant was afforded all of her rights of appeal set forth in the statutes and administrative code. Cole v. UW, 79-PC-ER-50, 1/13/81
Complainant failed to show she was discriminated against in regard to her discharge where she had been advised that a state car should never be kept out overnight without management approval and one week later, without management approval, she parked a state car overnight in front of her home and it was damaged in an accident. Complainant had filed a charge of discrimination with the Commission approximately one month prior to the state car incident but there was no showing that respondent was aware of the existence of the complaint. Stonewall v. DILHR, 79-PC-ER-19, 5/30/80
786.04 Prima facie case
Complainant's conduct of objecting to alleged harassment from a supervisor by being "short" with the supervisor and engaging in an argument with him did not constitute engaging in protected activities under the Fair Employment Act. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Complainant failed to establish a prima facie case of retaliation with respect to a decision not to hire complainant for a vacant supervisory position where the person who made the decision that complainant was insufficiently qualified to merit a second interview was unaware that complainant had participated in any activity protected under the Fair Employment Act. Hecht v. UWHCA, 97-0009-PC-ER, 3/17/99
Complainant failed to state a claim of FEA retaliation relating to a non-selection decision where respondent's only knowledge of complainant's protected activity was a comment made to one member of the search committee that complainant resigned her position with another state agency because it was "political." Complainant's contention that respondent should have deduced some bias from this remark was too tenuous to constitute an awareness by respondent of complainant's protected activity, a necessary element of a prima facie case of retaliation discrimination. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98
Complainant's alleged request for respondent to stop the "probe" of his mental health potentially could be characterized as opposing a "discriminatory practice" within the meaning of §111.322(3), Stats. Prochnow v. UW (La Crosse), 97-0008-PC-ER, 8/26/98
Filing a FMLA request and filing two actions with the Personnel Commission constitute protected activities under the FMLA as well as under the Fair Employment Act. Preller v. UWHCB, 96-0151-PC-ER, etc., 8/18/98; affirmed Dane County Circuit Court, 98-CV-2387, 12/6/99
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
Discusing an internal complaint with shift supervisors is not an adverse employment action. Stygar v. DHSS, 89-0033-PC-ER, etc., 4/17/95
An allegation that an employe was terminated in retaliation for having taken FMLA covered leave states a claim under the FMLA. Additionally, an employe who alleges she attempted to exercise a right under the FMLA and then was retaliated against because of that states a claim under the FEA retaliation provisions, §111.322(2m)(a), Stats. Ripp v. UW-Extension, 93-0113-PC-ER, 6/21/94
Complainant's request for handicap accommodation, which she pursued through several layers of management, constitutes an activity pursuant to §111.322(3), Stats., that is protected against retaliation. Additionally, any discrimination against an employe because of a request for accommodation would be subsumed within the FEA's proscription of handicap discrimination per se in §111.34(1)(b). Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Respondent's action temporarily placing complainant on leave with pay while it sought clarification of her medical restrictions was not an adverse employment action, where she was not required to use any leave time and there was no demonstrable negative impact on her employment. Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Complainant did not establish a prima facie case of fair employment retaliation because she did not show that the decisionmakers who terminated her probationary employment were aware that she had filed a discrimination complaint. Schmidt v. DOC, 91-0099-PC-ER, 2/3/94
Respondent's decision to discipline the complainant was not retaliatory where the discipline was not imposed by anyone who had knowledge of complainant's FEA activities, nor was the imposition of discipline influenced by anyone with such knowledge. Larsen v. DOC, 90-0374-PC, 91-0063-PC-ER, 5/14/92
In a retaliation case, the complainant must, as part of the prima facie case, introduce evidence sufficient merely to raise an inference that, if the respondent's action remain unexplained, it is more likely than not that such actions were discriminatory. Smith v. UW, 79-PC-ER-95, 6/25/82
The complainant failed to establish a prima facie case because of the strong evidence of inadequate job performance. She also failed to request an accommodation for her asthmatic condition or to inform her supervisor that she had a handicap which was exacerbated by working conditions. Way v. UW, 78-PC-ER-52, 3/8/82
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.