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796.25 Salary
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
No discrimination based on creed, sex or sexual orientation was found with respect to respondent’s actions of removing complainant from his position as program leader and setting the level of his pay in his backup position of associate professor, where concerns about complainant’s managerial abilities were heightened by receipt of an affirmative action complaint against complainant from one of complainant’s colleagues, and where respondent concluded that complainant’s leadership was not meeting program needs. Complainant’s comparisons relating to his salary claim involved circumstances that were distinctly different from those of complainant. Kinzel v. UW (Extension), 92-0218-PC-ER, 8/21/96
Any inference of discrimination or pretext raised elsewhere in the record was dispelled entirely by complainant's admission that he really did not believe respondents' decision to institute "hiring above the minimum" after complainant had already been hired was based in any part on his handicap. Complainant's handicap was merely coincidental to complainant's status of one of two individuals who were employed by respondent DOJ before the HAM hires. Thorpe v. DOJ & DER, 93-0093-PC-ER, 7/25/94
Complainant (female coach of the women's basketball team) failed to establish a prima facie case with respect to an equal pay act type of claim where she failed to establish that she performed substantially the same work as her male predecessor or the male coach of the men's basketball team whose positions had other significant duties in addition to coaching. Meredith v. UW-La Crosse, 90-0170-PC-ER, 9/15/93; affirmed, Meredith v. Wis. Pers. Comm., Dane County Circuit Court., 93CV3986, 8/29/94.
Complainant failed to establish a prima facie case where he did not show that different wage-eligibility factors were used for him than were used for all other employes regardless of their race and/or sex and he did not show that the uniform wage-eligibility factors impacted less favorably on the group of employes with the same sex and/or race as complainant. Christensen v. DOC & DER, 90-0144-PC-ER, 2/3/94
Respondent's failure to have awarded complainant a .25% additional merit increase did not constitute sex discrimination where respondent's articulated rationale for its decision--that such an award to a male employe was based on a special assignment, while complainant was not assigned equivalent responsibilities and did not meet the other criteria for such an award--was not shown to have been pretextual. Complainant's contention that since she and the male employe were in equivalent positions they should have received equivalent compensation is inconsistent with the legitimate, non-discriminatory criteria of the compensation plan. Complainant's contention that she performed duties at a higher level that were more complex and had more impact than was the case with similar jobs was not supported by the record. Mosby v. WGC, 91-0033-PC-ER, 1/11/94
A claim of handicap discrimination was rejected by the Commission where the employe's reinstatement at a lower pay rate than at the time of his prior termination was the consistent practice of the hiring unit. Pretext was not shown by reference to two other employes who were reinstated without pay loss because differences demonstrated they were not similarly situated to complainant. Hanke v. DHSS, 91-0041-PC-ER, 6/25/93
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
There was no probable cause based on marital status, FMLA or retaliation 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 a decision setting complainant's pay level where complainant's starting wage was more than his younger predecessor's ending wage and no wage pattern could be discerned indicating age bias. No probable cause was found with respect to complainant's allegation that he was forced to retire where the record indicated he had not been forced to retire. Schleicher v. DMA, 87-0019, 0169-PC-ER, 5/18/89
No probable cause based on creed was found with respect to a decision to deny approval, for salary add-on purposes, of the credits earned for a course titled "Fundamental Science of Nature." Complainant, a math teacher in a correctional institution, was entitled to a salary add-on upon the completion of a certain amount of additional relevant course work with the credits subject to approval by respondent. Respondent determined that the course in question was not relevant to complainant's duties as a math teacher and there was no evidence that the respondent's determination was because of complainant's or anyone else's "system of religious beliefs." Kircher v.DHSS, 87-0065-PC-ER, 8/10/88
No probable cause was found where a male was hired at the same rank at a higher salary, did not have a Ph.D. as did the complainant, but had fulfilled his Ph.D. course work and had broader experience than she did. Complainant's salary was in the mid range of the BAVI staff. Boyce v. UW, 79-PC-ER-33, 2/17/81
796.30 Employment benefits (including leaves of absence)
Respondent did not discriminate against complainant, a supervisor, based on sex when it permitted him to substitute sick leave for 6 weeks, rather than 12 weeks, of paternity leave. Complainant was permitted to take leave without pay or to substitute vacation or other types of paid leave, except sick leave, for the second 6 week period. The complainant's only entitlement to the use of sick leave after the birth of his child derived from the Wisconsin Family Medical Leave Act which provides a maximum of 6 weeks of family leave. Complainant failed to show that he was similarly situated to comparison females who were granted more than 6 weeks of sick leave where the females underwent pregnancy and childbirth which could have qualified them for medical leave as well as family leave. Therefore, complainant failed to establish a prima facie case of sex discrimination. The different treatment cited by complainant as the basis for his claim resulted from the medical consequences of pregnancy and childbirth, not from gender. In order to prevail, complainant would have had to show that a similarly situated female, e.g., one who had adopted a child, was granted more than 6 weeks of sick leave as family leave in order to care for this child after the adoption. Enke v. DOT, 97-0202-PC-ER, 12/16/98
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
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
There was no disparate treatment of a similarly-situated employe where complainant was not allowed to use doctor's excuses signed by her husband because their marital relationship created a facial conflict of interest. While respondent did not have a general policy on the subject of who could sign doctor's excuses, its objection to complainant's husband signing her excuses was not premised on their marital relationship per se, but on the inherent conflict of interest involved. Earnhart v. DHSS, 89-0025-PC-ER, 11/19/92
Where all employes, including complainant, were eligible for group insurance coverage that encompassed medical treatment but not any form of non-medical treatment, there was no disparate treatment with respect to complainant, a Christian Scientist who sought coverage for services provided by a Christian Science practitioner. The record did not support a finding that Christian Science treatment either constitutes medical treatment or is generally recognized as medical treatment. Lazarus v. DETF, 90-0014-PC-ER, 9/21/92; affirmed by Dane County Circuit Court, Lazarus v. State Pers. Comm., 92 CV 4252, 6/7/93
An employer's failure to grant a religiously-motivated request for a fringe benefit not provided under its standard personnel and management procedures did not create a conflict between the employe's religious practices and the employer's procedures so as to constitute a violation of the employer's duty of accommodation. Lazarus v. DETF, 90-0014-PC-ER, 9/21/92; affirmed by Dane County Circuit Court, Lazarus v. State Pers. Comm., 92 CV 4252, 6/7/93
Respondent did not retaliate against the complainant when it subjected the complainant's leave requests to increased scrutiny where the respondent was justified in concluding that complainant was a leave abuser. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
Respondent failed to show the complainant could not adequately undertake his job responsibilities where there were no observations or reports of complainant's actual job performance and where letters from complainant's physicians and from complainant himself, though seemingly inconsistent, were reasonably explained. Therefore, probable cause based on handicap was found as to respondent's decision to place complainant on a leave of absence. The Commission concluded that complainant's subsequent pursuit of a worker's compensation claim of disability and an unemployment compensation claim where he asserted certain medical limitations on his capacity to work, was not inherently inconsistent with his discrimination complaint where he argued that he was capable of doing his job satisfactorily at the time of his leave of absence. Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87
Probable cause based on retaliation 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
However, there was no evidence that said complaint was causal with respect to the subsequent decision to place him on a leave of absence where there was strong evidence that that decision was motivated by respondent's perception of complainant's medical condition. Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87
Complainant's verbal complaint about "sexist cronyism" falls within the scope of a protected activity under the Fair Employment Act. However, there was no evidence that said complaint was causal with respect to the subsequent decision to place him on a leave of absence where there was strong evidence that that decision was motivated by respondent's perception of complainant's medical condition. Vallez v. UW-Madison, 84-0055-PC-ER, 2/5/87
The respondent's action of not permitting a husband and wife, both of whom are state employes to choose "family" health insurance coverage for one spouse and their children and "single" health insurance coverage for the other spouse, was upheld where the decision was made pursuant to express provisions of the administrative code and statutes and the legislature could not have intended to nullify these provisions when it amended the Fair Employment Act to include marital status discrimination. Ray v. DHSS & Group Insurance Board, 83-0129-PC-ER, 10/10/84; affirmed by Dane County Circuit Court, Ray v. Pers. Comm., 84-CV-6165, 5/15/85
796.35 Work assignments (including shift assignments and transfers)
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
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 probable cause was found on the basis of sex or age as to respondent’s decision not to assign complainant, a female over the age of 40, to respond to a herbicide drift that occurred within complainant’s region of the state. Complainant lacked basic knowledge about the herbicide involved and the person selected by respondent to respond was the expert in the Division. The person selected was older than complainant, had expressed a desire to work alone and management had a goal of sending only one person in response to a complaint. Volovsek v. DATCP & DER, 93-0098-PC-ER, 6/19/97; affirmed by Washington County Circuit Court, Volovsek v. Pers. Comm., 97-CV-0287, 8/28/98
No discrimination based on creed, sex or sexual orientation was found with respect to respondent’s actions of removing complainant from his position as program leader and setting the level of his pay in his backup position of associate professor, where concerns about complainant’s managerial abilities were heightened by receipt of an affirmative action complaint against complainant from one of complainant’s colleagues, and where respondent concluded that complainant’s leadership was not meeting program needs. Complainant’s comparisons relating to his salary claim involved circumstances that were distinctly different from those of complainant. Kinzel v. UW (Extension), 92-0218-PC-ER, 8/21/96
Respondent’s motion to dismiss was granted where complainant contended respondent’s actions of assigning overtime to the least senior employe constituted discrimination based on creed. The overtime assignments were made pursuant to a provision of the applicable union contract and complainant did not allege that the seniority system was intended to result in the assignment of overtime to the disadvantage of employes who professed the same creed as complainant. Brackemyer v. UW (River Falls), 95-0172-PC-ER, 5/28/96
Complainant failed to establish sex discrimination relative to the failure to provide her with a light-duty position because of a work injury, where, among other reasons, most of the potential light duty assignments did not meet complainant's work restrictions, respondent reasonably believed the remaining potential assignment would have been inconsistent with her restrictions, respondent initially did find a light duty assignment in another facility and two of the three decision makers were women. Longdin v. DOC, 93-0026-PC-ER, 7/27/95
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
Where respondent failed to offer complainant (female coach of the women's basketball team) a full-time appointment her second year of employment, as it had done with respect to her male predecessor and the male coach of the men's basketball team, the complainant failed to mount a successful challenge to respondent's rationale that it was due to budgetary constraints. Therefore, complainant failed to establish that this rationale was pretextual. Meredith v. UW-La Crosse, 90-0170-PC-ER, 9/15/93; affirmed, Meredith v. Wis. Pers. Comm., Dane County Circuit Court., 93CV3986, 8/29/94.
Respondent did not violate the FMLA when, on completion of complainant's family leave, respondent temporarily assigned him duties according to the same ratio in effect prior to his leave, and also proposed a new set of duties. It was the proposed duties, which were still being hashed out at the time of complainant's return, that had to be analyzed in terms of whether complainant was being offered a position that was equivalent to his previous one. Zimmerman v. UW-Madison, 92-0224-PC-ER, 6/21/94
Complainant failed to show a prima facie case of sex discrimination where the manner in which her supervisor communicated with her was consistent with the style by which he communicated with other male and female employes. Stricker v. DOC, 92-0058-PC-ER, 92-0201-PC-ER, 3/31/94
Complainant failed to establish that her work environment was hostile, abusive or offensive where her supervisor's statements were gender neutral, were not sexually offensive or suggestive, were phrased and delivered in a manner consistent with addressing other employes, and were not intended to ridicule, insult or abuse her. Stricker v. DOC, 92-0058-PC-ER, 92-0201-PC-ER, 3/31/94
Respondent did not retaliate against the complainant when it proposed a new work schedule where the respondent revised the schedule as recommended by complainant. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
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
No probable cause based on color and race was found with respect to a memo instructing the complainant to complete a certain assignment by a certain date where the assignment was equivalent to those given other employes with similar responsibilities and where the deadline was reasonable. Yarbrough v. DILHR, 88-0103-PC-ER, 2/22/90
Probable cause based on FEA retaliation 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 based on retaliation and national origin 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
Respondent was not required to exempt complainant, a handicapped employe, from forced overtime, as long as it was an essential job duty. Conley v. DHSS, 84-0067-PC-ER, 6/29/87
No probable cause on the basis of sex was found as to respondent's decision to assign state troopers in response to an inmate disturbance at a correctional facility where the procedure followed by respondent was reasonable in view of the circumstances, was neutral on its face and there was no evidence to demonstrate it was not followed uniformly. German v. DOT, 83-0034-PC-ER, 11/8/84
No discrimination was found on the issue of sex discrimination with respect to respondent's refusal to assign complainant to the misdemeanor unit of the adult criminal division rather than the juvenile unit, where the Commission was unconvinced that criminal law is generally considered to be a more worthy pursuit than juvenile law, where evidence indicated that respondent's decision was based on program needs and its evaluation of the complainant, and where respondent had a high percentage of women in its misdemeanor unit as well as in other units. Taylor v. State Public Defender, 79-PC-ER-136, 8/5/82
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 probable cause was found where the transfer of a handicapped employed 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
Unlawful discrimination was found where employe's immediate supervisor failed to carry out instructions from upper-level management to structure employe's duties and responsibilities so as to comply with agency's obligations under §230.37(2), Stats, relating to employes who are unable to perform their duties. Kleiner v. DOT, 80-PC-ER-46, 1/28/82
796.37 Training
Respondent reasonably accommodated complainant's disability when it responded to complainant's request for an ergonomic class and an E-mail class by conducting an ergonomic evaluation of complainant's workstation, had its safety officer instruct complainant on ergonomic correctness and gave complainant individual instruction on the use of E-mail. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98
No discrimination based on age or handicap was found regarding respondent's decision to permit three other employes to complete recruit training school before the complainant, where complainant never requested to attend the school on a full-time basis. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95
No discrimination based on age or handicap was found regarding respondent's decision to deny complainant's request for refresher training in firearms, where complainant was not eligible for such training. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95
There was no probable cause to believe that respondent discriminated against complainant on the basis of his age, national origin or ancestry and/or race with respect to providing him computer training where complainant, who was born in Mexico, was employed as the sole LTE in the office, there were insufficient computer stations for even the permanent employes and complainant had the lowest priority for training behind the permanent employes. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
Respondent did not retaliate against the complainant when it denied her leave/tuition reimbursement request for three college courses where the courses were not job-related. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
Respondent did not retaliate against the complainant when it refused to reimburse her for a course where the person who processed the complainant's request was unaware of the complainant's FMLA leave request. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
No probable cause based on age was found with respect to the denial of data base training where respondent had provided complainant with micro-computer training even though it was not required. The micro-computer training was also more easily transferrable to other positions than data base training would have been. Jones v. DATCP & DER, 86-0067, 0151-PC-ER, 4/28/89
Complainant, an asthmatic, established the causality element for purposes of a probable cause determination arising from his separation from employment. The complainant's asthmatic condition was exacerbated by complainant's exposure to mace and a further adverse reaction to other gases could be expected if he were to be exposed to them as was required by the training procedure. Hebert v. DHSS, 84-0233-PC, 84-0193-PC-ER, 10/1/86
The respondent's decision to send someone other than the appellant to law enforcement school constituted age discrimination, and the agency's stated reasons for sending him were concluded to be pretextual, where the age of the person sent was 32, there was very little evidence offered in support of the respondent's assertion that the younger employe was chosen because he got along better with others than the complainant, and the complainant's supervisors told him on a number of occasions that age was a factor in their decision, and the explanation that these statements were made to "cushion the blow" to the complainant of the rejection were not convincing. [See also 760.2 for discussion of mixed-motive aspect] Conklin v. DNR, 82-PC-ER-29, 7/21/83
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.