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792 Whistleblower (subch. III, ch. 230, Stats.) retaliation
792.01 Generally
A disclosure need not be made to a first-line supervisor, but may be made instead to a second-line supervisor, third-line supervisor, or higher level supervisor in the employe’s supervisory chain of command in order to qualify as a disclosure to a supervisor within the meaning of §230.81(1)(a), Stats. However, merely because an individual processed grievances originating in the UW-Hospital did not qualify him as a supervisor of complainant, who worked for the hospital, and complainant did not make a protected disclosure. Williams v. UW-Madison, 93-0213-PC-ER, 9/17/96; affirmed by Dane County Circuit Court, Williams v. Wis. Pers. Comm., 96 CV 2353, 11/19/97
A union grievance filed by complainant qualified as a protected whistleblower disclosure to her collective bargaining representative within the meaning of §230.81(3). Williams v. UW-Madison, 93-0213-PC-ER, 9/17/96; affirmed by Dane County Circuit Court, Williams v. Wis. Pers. Comm., 96 CV 2353, 11/19/97
Where the protected disclosure consisted of a union grievance relating to the presence of cockroaches in campus buildings and where respondent processed the grievance as it was required to do under the applicable collective bargaining agreement, there was no showing that respondent concluded that investigation of the health and safety issue presented in the grievance was merited or that such an investigation occurred. Therefore, complainant failed to establish the prerequisite for presuming, under §230.85(6), that a subsequent suspension constituted whistleblower retaliation. Williams v. UW-Madison, 93-0213-PC-ER, 9/17/96; affirmed by Dane County Circuit Court, Williams v. Wis. Pers. Comm., 96 CV 2353, 11/19/97
The statutory presumption of retaliation established in §230.85(6), Stats., was inapplicable to that component of a written disclosure by complainant to the department secretary relating to an allegation that a co-worker of complainant was violating respondent's fraternization policy where complainant had raised the fraternization issue once before, it had been investigated and resolved by a previous secretary and, as a result, respondent did not feel this part of complainant's more recent disclosure merited further investigation. However, where the second component of complainant's written disclosure, that an employe used work phones for personal calls, was the subject of individual meetings with employes in complainant's work unit after the date of the disclosure, it appeared as though respondent felt that this part of the disclosure merited further investigation and, as a result, the statutory presumption of retaliation would apply. King v. DOC, 94-0057-PC-ER, 3/22/96
In ruling on a motion for failure to state a claim, appellant's memo, which referred to the absence of a maintenance agreement for the equipment in two offices, could be said to satisfy the requirements for a written disclosure of "mismanagement." Duran v. DOC, 94-0005-PC-ER, 10/4/94
Complainant's testimony in federal court was not a disclosure protected by the whistleblower law because it did not fit within any of the communications enumerated in §230.81, Stats. Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Complainant made a protected disclosure to her legislator when she sent him a copy of a letter she sent to her employer concerning her request for reassignment to her previous route as a handicap accommodation. While the letter did not explicitly allege a violation of state laws, considered in the context of other communications with the legislator and using a liberal construction of the statute, the communication met the requirement of "information gained by the employe which the employe reasonably believes demonstrates a violation of any state . . . law." Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Complainant's consultations with her attorney concerning her request for accommodation also constitute a covered disclosure pursuant to §§230.80(5)(a), 230.81(1) and (3). Rentmeester v. Wis. Lottery, 91-0243-PC, etc., 5/27/94
Where respondent DER received a letter from complainant (who was not a DER employe) regarding the reclassification of his position and protection under the whistleblower law, and, in response, referred complainant to the Personnel Commission as the agency specified in the whistleblower law as having responsibility for receiving and deciding complaints of whistleblower retaliation, respondent DER met its obligation under the whistleblower law and would not be liable for retaliation if complainant had been the victim of retaliation by his employing agency. Seay v. DER & UW-Madison, 89-0082-PC-ER, 3/31/94; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
DER was properly a party to a whistleblower claim where it was alleged that it violated the whistleblower law with respect to the determination of complainant's protective occupation status. Pierce v. Wis. Lottery & DER, 91-0136-PC-ER, 9/17/93
In deciding a motion to dismiss for failure to state a claim, the Commission was unable to determine on the limited record before it whether a conversation with a co-employe concerning a statement made by the agency head would be considered a verbal disclosure to "any other person" that was not preceded by a disclosure under either §230.81(1)(a), Stats. (in writing to the supervisor) or §230.81(1)(b) (in writing to a governmental unit designated by the Commission), and hence not a disclosure covered by the whistleblower law, or whether the conversation with the co-employe was part of assisting "in any action or proceeding relating to the lawful disclosure of information under §230.81 by another employe," within the meaning of §230.80(8)(b). Pierce v. Wis. Lottery & DER, 91-0136-PC-ER, 9/17/93
The whistleblower law covers disclosures to legislators and the legislature, and thus includes a disclosure to a private sector auditor providing services for the legislature. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 10/16/92
Complainant's disclosure was not protected under the whistleblower law, because it fell within the exception set forth in §230.83(2), Stats., for disclosures for personal benefit. Complainants' disclosure was that their positions lacked the appropriate arrest authority notwithstanding that their position descriptions called for law enforcement certification, and the lack of such authority jeopardized their continued law enforcement certification and protective occupation status. The provision in §230.83(2), that the law does not apply to an employe whose disclosure is made to receive something of value, clearly applies to an employe who makes a disclosure in order to perpetuate the receipt of benefits to which the employe is not entitled. Here, complainants appear to contend that once the disclosure was made, their employer should have proceeded to assign them the enforcement authority that was described on their inaccurate position descriptions. This would result in the receipt of something of value--i.e., their retirement benefits would be greater in protective occupation status. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 10/16/92
Complainants alleged that respondent's settlement offer constituted a threat to terminate their protective occupation status and constituted a threat of retaliation under the whistleblower law. Respondent contended in support of their motion to dismiss for failure to state a claim that its action was not prohibited by the whistleblower law. The Commission held that since the offer presented two options (depending on whether or not the offer was accepted), both of which were penalties, the offer can be seen as a vehicle for retaliation, and covered by the whistleblower law. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 10/16/92
792.02(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
No probable cause was found with respect to a decision to reorganize the complainant's work unit where the reorganization did not result in any change in the complainant's classification or his position description and there was no evidence that the reorganization plan was promulgated so as to retaliate against the complainant. Holubowicz v. DHSS, 88-0097-PC-ER, 9/5/91
No probable cause was found with respect to the respondent's decision to bar entry of complainant into a correctional institution where such action was standard procedure when there was an investigation pending which directly affected institution security. In addition, the respondent's action was taken by persons who were 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 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
792.03(2) Finding of no retaliation
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to assign complainant additional job duties where complainant was the logical staff member to assume the duties and complainant indicated she would "be happy" to do so. King v. DOC, 94-0057-PC-ER, 11/18/98
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to move complainant to another work station where complainant was the lowest classified/least senior employe in the work unit and the other options would not have accomplished the same goals. King v. DOC, 94-0057-PC-ER, 11/18/98
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to deny complainant's request for leave on a specific date where complainant was already scheduled to participate in a meeting on the day in question. Respondent's subsequent decision not to permit complainant to use accrued leave after she walked out of the meeting was also justified and not discriminatory where it is respondent's practice not to approve leave when an employe walks off the job without authorization. King v. DOC, 94-0057-PC-ER, 11/18/98
No race discrimination or whistleblower retaliation was found with respect to respondent's decision to reprimand complainant for walking off the job without authorization. Complainant had been warned at the time that walking off the job would have a consequence, and complainant had violated several earlier directives. King v. DOC, 94-0057-PC-ER, 11/18/98
Respondent successfully rebutted the presumption of causation arising from a finding that complainant's disclosure merited further investigation and from complainant's discharge within two years thereafter. Complainant was employed as a food service worker in a correctional institution. Shortly after she successfully completed her probationary period, respondent learned that she had, on several occasions, violated the policy prohibiting fraternization with the inmates. Complainant's actions violating the fraternization policy provided a legitimate, non-retaliatory reason for terminating her employment. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
No whistleblower retaliation was established regarding the decision to terminate the complainant's probationary employment where questions about the adequacy of complainant's work performance had existed for months and extensive documentation of the problems with his performance had been prepared before respondent received notice of the complainant's protected activity. Stark v. DILHR, 90-0143-PC-ER, 9/9/94
An employer will not be held accountable for acts of alleged retaliation when the complainant was given the opportunity to provide information relating to the allegations to representatives of the employer but generally declined to do so. Seay v. DER & UW-Madison, 89-0082-PC-ER, 3/31/94; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
The following allegedly retaliatory acts did not rise to the level of "verbal or physical harassment" within the meaning of §230.80(2), Stats.: complainant was forced off the road when a co-worker (with whom he had a personality conflict) cut him off sharply in traffic and this same co-worker would not allow complainant to park in the garage with other trucks. Seay v. DER & UW-Madison, 89-0082-PC-ER, 3/31/94; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
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
No retaliation was found with respect to respondent's decision to suspend the complainant for 10 days where the complainant had disrupted the work and morale at the worksite, co-workers made unsolicited complaints about complainant to management and complainant had been disciplined several times before, most recently for violent and threatening behavior toward 2 superiors. 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
792.04 Prima facie case
Complainant failed to establish a prima facie case of whistleblower retaliation where he failed to present any evidence of having made a protected whistleblower disclosure. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98
Filing a complaint of whistleblower retaliation is itself a protected activity under the whistleblower law. Therefore, a disciplinary action threatened or imposed after respondent learned of complainant's charge of whistleblower retaliation could constitute illegal retaliation under the whistleblower law. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Even though complainant had not submitted copies of the written disclosures that served as the basis for his complaints of retaliation, he described the disclosures in a manner that was sufficiently specific to withstand respondent's motion to dismiss for failure to specify the "information " he had disclosed. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Qualifying disclosures under the whistleblower law need not be made to a first-line supervisor in order to qualify as a disclosure to a supervisor within the meaning of §230.81(1)(a), Stats. Qualifying disclosures may be made instead to a second-line supervisor, third-line supervisor, or higher level supervisor in the employe's supervisory chain of command. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
When a faculty member is the "employe" making a whistleblower disclosure, it is reasonable to interpret "supervisor" to include the campus chancellor, the college dean and the department chair of the department containing the employe's position. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged that respondent had removed his secretary, i.e. denied him all secretarial services, respondent's alleged conduct qualified as a disciplinary action. Respondent's motion to dismiss was denied as to this allegation. However, complainant's allegation that respondent removed a particular photocopy machine, but continued to provide him with photocopying options, was not considered a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged conduct of removing complainant from his role as a faculty advisor to a student organization related to the "removal of any duty" under §230.80(2), Stats., and fell within the scope of a disciplinary action. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged respondent refused to pay him for working with a visiting professor, it was comparable to an allegation that complainant's pay had been reduced, thus having the effect of a penalty within the scope of a disciplinary action. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a faculty member, his whistleblower allegation that respondent had threatened to remove his endowed chair fit within the scope of a disciplinary action. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged that respondent did not promptly respond to his proposal that an artist serve as "artist in residence for a few days," the allegation did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant, a faculty member, alleged that respondent did not adequately respond to efforts to have several students from a foreign university attend UW-Whitewater, the alleged conduct did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Complainant's whistleblower allegation that campus administrators tried to convince a third party to commence a civil action against complainant was not a consequence commonly associated with job discipline, so it did not satisfy the requirement of disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of reminding complainant that all guest editorials had to be coordinated through the administration did not rise to the level of a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Alleged actions taken by complainant's superiors (or at their direction) to steal a fax sent to complainant, flatten the tires on complainant's car, steal his cell phone from his office, leave anonymous and derogatory notes in complainant's office, vandalize his car, prevent complainant from retrieving his personal belongings, and to take a bottle of copy machine toner that complainant had purchased, all allegedly in response to his protected activities, constituted "physical harassment" under §230.80(2)(a), Stats. Respondent's motion to dismiss was denied as to those allegations. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of responding inadequately to complainant's request relating to a public expenditure was not a disciplinary action where complainant's request was made "as a taxpayer." The allegation did not involve the employment relationship. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged statement that personnel files and records of individual faculty members were public documents and were available for inspection upon demand was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of making a notation on a document did not rise to the level of a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of completely barring complainant from using the university's mail system rose to the level of a disciplinary action, assuming the complainant alleged it had a drastic effect on his ability to perform his responsibilities as a member of the faculty and that it was taken in response to complainant's protected activities. Respondent's motion to dismiss was denied as to that allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged action of asking complainant to clarify whether complainant's activities in Cuba were undertaken as a private citizen or as a representative of the respondent was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's alleged activity in the nature of a public criticism by an employer of an employe's or group of employes' approach to a controversial issue is outside the scope of verbal or physical harassment, citing Kuri v. UW (Stevens Point), 91-0141-PC-ER, 4/30/93. Administration officials were quoted in two newspaper articles relating to the complainant, a faculty member. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a member of the faculty, respondent's alleged action of temporarily suspending complainant's photocopying privileges at the campus library until respondent reviewed complainant's justification for his copying requests was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a faculty member, respondent's alleged action of failing to support or approve complainant's request for a one year sabbatical rose to the level of a disciplinary action. Respondent's motion to dismiss was denied as to this allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Where complainant was a faculty member, respondent's alleged action of removing complainant's printing and labeling privileges rose to the level of a disciplinary action, assuming complainant alleged it had a drastic effect on his ability to perform his responsibilities and assuming it was taken in response to complainant's protected activities. Respondent's motion to dismiss was denied as to this allegation. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
A memo informing complainant that he was still required to obtain approval from the administration for any expenditure request was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Respondent's action of merely preventing complainant from using the employer's mail service for 2 specific memos did not rise to the level of a penalty or disciplinary action as listed in §230.80(2), Stats. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
The action of the dean of the college not to include complainant in a list of 8 individuals who were congratulated in a memo for receiving grants or donations was not a disciplinary action. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
The possibility that respondent might forward the name of a candidate for complainant, a faculty member, to consider for hire as a LTE was neither a disciplinary action nor a threat thereof. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Filing a complaint with an agency's EEO office and initiating an investigation of that complaint are not disciplinary actions. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98
Complainant's memo reciting discrepancies of "almost 1%" and "almost 2%" between certain affirmative action report figures and certain veteran report figures were not major differences and his memo did not satisfy the requirements of a disclosure of "information." Sheskey v. DER, 98-0063-PC-ER, 8/26/98
The filing of a Fair Employment Act complaint with the Personnel Commission is not a protected activity under the whistleblower law that entitles a complainant to protection under §230.80(8)(a), Stats., citing Butzlaff v. DHSS, 91-0044-PC-ER, 11/19/92. Where the only protected activity identified by complainant was having filed previous Fair Employment Act complaints against respondents, respondents' motion to dismiss for failure to state a claim was granted. Oriedo v. DPI et al., 98-0042-PC-ER, 8/12/98
The decision to investigate and to hold an investigatory meeting does not qualify as a disciplinary action under the whistleblower law. Questions asked of complainant during that meeting did not go beyond the simply uncomfortable or inconvenient and, therefore, did not constitute language or conduct egregious enough to have a substantial, negative impact on complainant's conditions of employment. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Where the only actual change in duties or responsibilities that could reasonably be implied related to complainant having less independence in setting the schedule for his audits of fire departments, it was not a sufficiently significant change to qualify as a "removal of duties" or a "reassignment" within the meaning of §230.80(2). Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Complainant stated that all employes in his work unit had been granted home stations in 1994, but that he did not make the move to his home area of Hayward at that time for personal reasons. Approximately two years later, complainant requested relocation to Hayward. Complainant's allegation that respondent denied his request to change the geographic location from which he performed his job was sufficiently akin to a transfer or reassignment (or to their denial) to qualify as a disciplinary action within the meaning of §230.80(2). Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
A delay in processing a travel voucher does not have the permanence or the long-term impact of penalties cited in §230.80(2), as disciplinary actions. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Where it was undisputed that a decision had been made to change the duties and responsibilities of complainant's position, such an action could be equivalent to removing a duty from a position or reassignment so as to constitute a disciplinary action within the meaning of §230.80(2). Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
A decision to investigate an incident or to conduct a predisciplinary or investigatory meeting, is not a disciplinary action within the meaning of 230.80(2), since it has no inherent negative impact on an employe. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Two alleged comments by a program manager during a meeting with complainant, even if offered as a criticism of complainant's work performance, were too tenuous and conjectural to support a conclusion that they rose to the level of a penalty on a par with those disciplinary actions enumerated in §230.80(2). Complainant alleged that the manager asked, "How long are we going to keep choking this chicken, Dave?" and then repeated the question, using hand gestures to mimic masturbation. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
Two alleged statements, standing alone, were not sufficiently severe or pervasive to support a conclusion that the conditions of complainant's employment were affected to the extent required for a finding of verbal harassment within the meaning of §230.80(2)(a). Complainant alleged that the manager asked, "How long are we going to keep choking this chicken, Dave?" and then repeated the question, using hand gestures to mimic masturbation. Even when considered with complainant's remaining allegations of verbal harassment, the cumulative effect of the allegations was insufficient to support a finding that the requirements of §230.80(2)(a), had been met. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
A written disclosure that faulted the conduct of an inmate rather than an employe was insufficient to meet the definition of "information." Bentz v. DOC, 95-0080-PC-ER, 3/11/98
A written report made at the request of the employer and made to individuals designated by the employer to handle the matter met the whistleblower disclosure requirements, even though it was not made to complainant's immediate supervisor. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
The whistleblower law does not include protection against retaliation by co-workers. A correctional officer's attempt to persuade an inmate to submit a concocted report against complainant, a food service worker, and other actions by correctional officers were not carried out by the appointing authority or agent of the appointing authority as required in §230.83(1). There was no persuasive evidence from which it would be reasonable to conclude that respondent fostered or condoned the officers' actions to such a degree that the officers should be considered as agents of the appointing authority. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
A statement to complainant, a food service worker, by a supervisor of officers in a correctional institution, that it was not a good idea to "tick off" correctional officers, did not have a substantial or potentially substantial negative impact on the employe, so it was not a "disciplinary action" within the meaning of the whistleblower law. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
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
Only those personnel actions which have a substantial or potentially substantial negative impact on an employe fall within the definition of "disciplinary action" found in §230.80(2), Stats. The common understanding of a penalty in connection with a job related disciplinary action does not stretch to cover every potentially prejudicial effect on job satisfaction or ability to perform one's job efficiently. Complainant was not retaliated against where his disclosure resulted in no loss of pay, position, upgrade or transfer or other consequences commonly associated with job discipline. Vander Zanden v. DILHR, Outagamie County Circuit Court, 88 CV 1223, 5/25/89; affirmed by Court of Appeals, 89-1355, 1/10/90
An increased workload due to a vacancy in a subordinate position does not rise to the level of a "penalty" under the whistleblower law. Perrien v. DOC, 95-0031-PC-ER, 7/2/97
In ruling on respondent's motion, filed after the initial determination was issued but before any hearing on the merits of the complaint, to dismiss certain issues relating to whistleblower retaliation for failure to satisfy the statutory definition of "disciplinary action" within the meaning of §230.80(2), Stats., the available information was viewed in the light most favorable to complainant. The motion was denied with respect to issues relating to: 1) the assignment of additional duties to complainant's position; 2) respondent's directive for complainant to move to a different workstation five feet away where the new workstation was equivalent in all significant respects to complainant's current workstation but where complainant felt and communicated to respondent that the association of the workstation with an employe to whom she had developed an aversion could significantly affect her health and her ability to function in her job; and 3) respondent's action to deny complainant the use of leave time for a day of absence resulting in the loss of a day's pay. King v. DOC, 94-0057-PC-ER, 3/22/96
Where complainant filed a written disclosure with an employe of respondent's affirmative action office and contended it was with complainant's understanding that the employe would provide a copy of the writing to someone in complainant's supervisory chain of command, respondent's motion to dismiss was denied. Kortman v. UW-Madison, 94-0038-PC-ER, 11/17/95
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
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 failed to establish a prima facie case of whistleblower retaliation as to events occurring before his alleged retaliators were aware of his protected disclosures. Seay v. DER & UW-Madison, 89-0082-PC-ER, 3/31/94; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
In determining whether a series of incidents constituted "verbal or physical harassment" within the definition of disciplinary action, the Commission considered the possible cumulative impact of the incidents on the employe. Seay v. DER & UW-Madison, 89-0082-PC-ER, 3/31/94; affirmed by Dane County Circuit Court, Seay v. Wis. Pers. Comm., 93-CV-1247, 3/3/95; affirmed by Court of Appeals, 95-0747, 2/29/96
In deciding a motion to dismiss for failure to state a claim, the Commission was unable to determine on the limited record before it whether a conversation with a co-employe concerning a statement made by the agency head would be considered a verbal disclosure to "any other person" that was not preceded by a disclosure under either §230.81(1)(a), Stats. (in writing to the supervisor) or §230.81(1)(b) (in writing to a governmental unit designated by the Commission), and hence not a disclosure covered by the whistleblower law, or whether the conversation with the co-employe was part of assisting "in any action or proceeding relating to the lawful disclosure of information under §230.81 by another employe," within the meaning of §230.80(8)(b). Pierce v. Wis. Lottery & DER, 91-0136-PC-ER, 9/17/93
A prima facie case involving alleged assistance "in any action or proceeding relating to the lawful disclosure of information under §230.81 by another employe," §230.80(8)(b), Stats., does not require that complainant disclose information as provided in §230.81 (e.g., in writing to the supervisor, in writing to an agency designated by the Commission.). Pierce v. Wis. Lottery & DER, 91-0136-PC-ER, 9/17/93
The filing of a FEA complaint with the Personnel Commission is not a protected activity under the whistleblower law that entitles a complainant to protection under §230.80(8)(a), Stats. The court system and, by necessary implication, the system of administrative law, are excluded from the category of "law enforcement agency" in §230.81(2). Butzlaff v. DHSS, 91-0044-PC-ER, 11/19/92
The methods used by the respondent in carrying out an investigation of the complainant's work performance and the decision to permit a union official to carry out an investigation of the complainant's conduct were not "disciplinary actions" as that term is used in the whistleblower law. However, an oral reprimand, the denial of a wage increase and the denial of a promotion fall within the definition. Flannery v. DOC, 90-0157-PC-ER, 91-0047-PC, 7/25/91
The statute does not require that a disclosure made under the whistleblower law and made in the form of a grievance, indicate on its face that it is a whistleblower disclosure. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
A grievance did not constitute a disclosure of alleged "mismanagement" where the grievance related only to one action by the superintendent of the correctional institution rather than to a "pattern" of conduct. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
The following actions did not constitute "disciplinary actions" within §230.80(2), Stats: 1) the denial of a request to publish a thank you note in a correctional institution's daily bulletin; 2) the denial of pay status for 1/4 of an hour during an investigative meeting where the denial was subsequently reversed; and 3) a decision to investigate an incident which could have lead to the imposition of discipline against the complainant. Seven other actions were found to fall within the definition of disciplinary actions. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
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
A requirement that complainant undergo a psychiatric evaluation was not a disciplinary action within the meaning of §230.80(2), Stats., where the evaluation could have been completed within the period of a 10 day suspension imposed against the complainant and the requirement did not create a stigma for the complainant because it was a matter of record that complainant had previously been given a leave of absence to enable him to undergo psychiatric treatment. The 10 day suspension and the involuntary leave without pay which resulted from respondent's failure to return complainant to work status after the expiration of the suspension were found to be disciplinary actions. 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
A newspaper advertisement seeking information from other persons regarding the actions of complainant's employer is not a protected disclosure. 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
A disclosure made to three individuals, all of whom were in the supervisory chain above the complainant, constituted a protected disclosure even though it was not made to the complainant's first-line supervisor. 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
It would be contrary to the policy behind the protections of the whistleblower law for information exchanged in informal discussions to render subsequent formal written disclosures unprotected. 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
Only those personnel actions which have a substantial or potentially substantial negative impact on an employe fall within the definition of "disciplinary action" found in §230.80(2), Stats. Limitations placed on complainant's contacts with a certain office did not constitute a disciplinary action where the duties and responsibilities of complainant's position did not necessitate frequent contacts with that office and the limitations rerouted but did not prevent those contacts. Vander Zanden v. DILHR, 84-0069-PC-ER, 8/24/88; affirmed by Outagamie County Circuit Court, 88 CV 1223, 5/25/89; affirmed by Court of Appeals, 89-1355, 1/10/90
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.