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796.39 Conduct of co-workers
Summary judgment was granted with respect to a claim of sexual harassment based on two events occurring in the workplace, a correctional institution, on the same day. In one, a male supervising officer touched complainant's hair and asked, "Are you tight§" Complainant did not dispute that it was an ongoing joke at the institution that the tightness of her hair bun was an indicator of her mood for the day, that other co-workers had touched her hair and numerous co-workers asked about the "tightness" of her hair, and that complainant did not believe her co-workers' actions were sexually harassing. In the second incident, the same supervising officer asked, "Are you sure you want to go through with it§" in reference to complainant's upcoming marriage. Complainant did not show, or allege, that the two events interfered substantially with her work performance, nor were the events sufficiently pervasive, severe, threatening or humiliating that a reasonable person under the same circumstances would feel the working environment was intimidating, hostile or offensive. Winter v. DOC, 97-0149-PC-ER, 5/6/98
Complainant, a female food service worker at a correctional facility, did not establish that a reasonable person under the same circumstances would have considered two incidents of sex harassment, both occurring within her first 3 months of employment, as sufficiently severe or pervasive to interfere substantially with her work performance or to create an intimidating, hostile or offensive work environment. In one incident, a male correctional officer told complainant that a prison was not a place for a woman to work. In the second, another officer referred to complainant as a "bitch" and/or a "slut." Complainant did not report the first incident and failed to establish that the comment made in the second incident reflected an attitude that was pervasive at the institution. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
Complainant failed to show an objectively hostile environment where complainant was only assigned "from time to time" to the work location where she was subject to supervision by the alleged harasser, she "generally avoided" the supervisor at work and she listed only 6 statements, an unquantified number of requests to visit complainant at home and one invitation to attend a convention together as having occurred over a period of six months. In dicta, the Commission also found that complainant failed to demonstrate the existence of a subjectively hostile environment where she never complained about the supervisor's actions until management explicitly encouraged her to do so and where complainant was interested in moving from her utility position, where she only had periodic contact with the supervisor in question, into a permanent assignment that would have been directly subordinate to that supervisor. Also in dicta, the Commission found that respondent would not be liable for the acts of the supervisor because: 1) the complainant did not establish quid pro quo harassment, 2) respondent acted immediately after complainant and three other employes told management about the supervisor's actions, suspended the supervisor and then demoted him to a non-supervisory position, 3) the supervisor's conduct was clearly outside the scope of his employment and respondent was not negligent in supervising the supervisor, and 4) the supervisor did not have any significant, independent authority relating to complainant's termination, promotion, rate of pay or discipline. Butler v. DHSS, 95-0160-PC-ER, 1/14/98
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
Complainant failed to establish a hostile work environment based on his handicap where another newly arrived employe who was treated differently on a social basis already had 5 years of social relationships built up with some members of the work unit, where complainant was not invited to staff meetings because they were specifically called to deal with the ongoing training of the complainant, where there was nothing to suggest that a comment ("We take care of our own.") was in any way directed at the complainant, where a comment by complainant's supervisor which referred to the complainant as being on a different wavelength was made in the context of the supervisor's concerns relating to complainant's aptitude for the duties he had been assigned to perform, and where other actions by complainant's co-workers reflected inevitable frustration arising from the level of complainant's work performance. Stark v. DILHR, 90-0143-PC-ER, 9/9/94
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
Where respondent responded to alleged incidents of racial harassment wherever it had a basis on which to respond, there was no basis for a conclusion that there was probable cause to believe management failed to take reasonable steps to prevent workplace harassment by complainant's co-workers. Sheridan v. UW-Madison, 86-0103-PC-ER, 87-0141-PC-ER, 2/22/89
Discrimination as to conditions of employment was found where religious comments by complainant's co-workers were numerous, they were continuous over complainant's period of employment as a Facilities Repair Worker 3, they were directed at the complainant, they were sufficiently derogatory to be considered non-trivial and at times opprobrious, the respondent was aware that complainant was being harassed due to his religion and failed to take reasonable steps to prevent the harassment. However, no discrimination was found as to complainant's subsequent discharge. For relief, the Commission required respondent to provide training for those employes who supervised complainant during his probationary employment. Laber v. UW-Milwaukee, 81-PC-ER-143, 11/28/84
An employer has a duty, when it knows or should know of sexual harassment between fellow employes, to take appropriate action to deal with the problem, and acquiescence to such conduct by its employes constitutes discrimination on the basis of sex with respect to conditions of employment. Glaser v. DHSS, 79-PC-ER-63, 79-66-PC, 7/27/81
No sex discrimination was found where the respondent investigated complainant's allegation of sexual harassment against a co-employe and took certain steps to reduce the possibility of a re-occurrence, but took no disciplinary action against the co-employe because the investigation had not revealed objective evidence upon which to base disciplinary action. Glaser v. DHSS, 79-PC-ER-63, 79-66-PC, 7/27/81
796.40 Classification matters
No probable cause was found on the basis of sex or age as to respondent’s decision to use promotion rather than reallocation as a method for moving employes to a higher classification level in light of management’s understanding that the union opposed reallocation and the absence of any indication that the lengthy promotional procedure, which resulted in decisions to hire 1 of 2 female candidates and 7 of 8 candidates older than 40, was undertaken because of the complainant’s age or sex. 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 was found as to complainant’s claims of age and sex discrimination arising from the time it took for her position to be reclassified from Agrichemical Specialist-Entry to the Agrichemical Specialist-Developmental level, where complainant was the first and only person to have been reclassified between these two levels and, on balance, comparison to employes who were reclassified under the prior classification structure was of little value. Even if the 11 other employes reclassified under the previous structure were considered to be similarly situated, there was insufficient support for a finding of discrimination where the median reclass period for all 12 employes would be 18.5 months, appellant was reclassified in 23 months which was the same as one male and shorter than two other males and the only other female was reclassified after 18 months. Four of the 12 employes were over 40 when they were hired and two took longer than the median for their reclassifications and two were reclassified in less than 18.5 months. In addition, at the time of her first evaluation, approximately 21 months after she began working, her supervisor identified performance difficulties and concluded that complainant needed a lot of additional training. 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 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 based on age or retaliation 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 need 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 based on retaliation or sex was found as to respondent's decision to deny complainant's reclassification request. Schultz v. DER, 83-0119-PC, 84-0252-PC, 85-0029-PC-ER, Schultz v. DER & DILHR, 84-0015-PC-ER, 8/5/87
No probable cause was found as to respondent's decision to reallocate the position filled by complainant, a female, where the statistical records showed that of all positions covered by the classification survey, a greater percentage of women went up one or more pay ranges than men and a smaller percentage of women went down one or more pay ranges than men. Schultz v. DER, 83-0119-PC, 84-0252-PC, 85-0029-PC-ER, Schultz v. DER & DILHR, 84-0015-PC-ER, 8/5/87
In analyzing whether there is probable cause as to respondent's decision to reallocate the complaint's position in order to determine if there is some pattern probative of gender bias, one should look at the statistics reflecting how the employer treated all the employes affected by the survey (in the absence of some showing that this would not produce an accurate picture of the employer's attitude) rather than the statistics relating to the particular classification series. Schultz v. DER, 83-0119-PC, 84-0252-PC, 85-0029-PC-ER, Schultz v. DER & DILHR, 84-0015-PC-ER, 8/5/87
The Commission found no probable cause as to complainant's claim of discrimination based upon respondent's decision not to reclassify his position from Engineering Technician 3 to Engineering Technician 4, where appellant, who is black, failed to meet the requirements for reclassification and presented little evidence on disparate treatment. Ellis v. DOT, 83-0137-PC-ER, 4/30/86
Probable cause was found where 12 of 13 intake and processing supervisors classified at the Job Service Supervisor 2 level were women and while the position standard also identified hearing office manager positions at that level, 3 of 4 hearing office manager positions were classified at the Job Service Supervisor 3 level and 2 of those 3 positions were filled by men. Conrady & Janowski v. DILHR & DP, 81-PC-ER-9, 81-PC-ER-19, 11/9/83
The Commission held that the denial of a reclassification request, even though it was overturned in a companion §230.44(l)(b), Stats., personnel appeal, did not constitute racial discrimination, where the reclassification denial was based on an interpretation of the position standards with which the Commission disagreed but did not feel was unreasonable per se, the complainant testified that his supervisor made remarks that he considered discriminatory and stereotypical, but he did not offer any evidence that the supervisor ever discriminated against him, the supervisor had given the complainant good performance evaluations and merit wage increase recommendations, and the supervisor had no role in the reclassification denial decision, and the allegation that the personnel analyst involved did not maintain eye contact with the complainant was of little if any probative value. Moy v. DPI & DP, 79-PC-ER-167, 8/21/81
796.45 Evaluation (including discretionary performance award)
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 was justified in maintaining complainant on a Performance Improvement Program due to her failure to meet performance expectations where the record showed that complainant's performance did not improve in any significant manner during the period of time she was on PIP, despite continuing feedback and training, and complainant failed to show that her productivity was reasonable in view of the classification level of her position or her experience, or consistently met numerical standards once such standards were established. Complainant failed to establish retaliation under the Family Medical Leave Act. Rufener v. DNR, 93-0074-PC-ER, etc., 8/4/95
No discrimination based on race or sex was shown in regard to complainant's performance evaluation where complainant, a Building Maintenance Helper, had failed to notify her supervisors of health and safety violations in her building, had failed to communicate effectively with her supervisors on various occasions, had failed to carry out a work assignment and had failed to wear proper safety equipment. McKibbins v. UW-Milwaukee, 94-0099-PC-ER, 4/4/95
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
Respondent's decision to place complainant on a concentrated review program was not discriminatory where respondent verified that complainant was backlogged in her work and performance standards were established for all staff, not just complainant. Iheukumere v. UW-Madison, 90-0185-PC-ER, 2/3/94
No probable cause was found with respect to a decision to deny the complainant, a male, a discretionary performance award where the agency head, also a male, had received reports that the complainant had improperly divulged confidential information and perceived two other incidents of poor judgment. Ruff v. Office of the Commissioner of Securities, 86-0141-PC-ER, 87-0005-PC-ER, 9/26/88
796.50 Reprimand, suspension, demotion
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 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
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
Respondent's action of removing the complainant from his supervisory position for failure to meet probationary standards was not discrimination based on handicap where complainant, who had taken two lengthy medical leaves, the second of which ended two months prior to the removal, failed to show that he continued to suffer from his impairment after returning from the second leave. Rose v. DOC, 93-0200-PC-ER, 8/4/95
Respondent did not discriminate on the basis of arrest/conviction record or retaliate against 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
The respondent did not retaliate against the complainant when it suspended her for one day for unauthorized leave where there was no showing that the leave was authorized by the respondent or by the FMLA. 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 race and color was found with respect to the issuance of a written reprimand which was later withdrawn where the complainant failed to introduce any evidence relating to whether the actions for which he was reprimanded merited a reprimand. Yarbrough v. DILHR, 88-0103-PC-ER, 2/22/90
Respondent's decision to suspend the complainant for ten days for unauthorized distribution of literature on the grounds of a correctional institution was upheld upon review for claims of whistleblower and public employe safety and health retaliation 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
No probable cause based on race, FEA retaliation or OSHA retaliation 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. Rose v. DOA, 85-0169-PC-ER, 7/27/88
No probable cause based on retaliation was found with respect to a 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
No handicap discrimination was found with respect to a refusal to allow the employe/complainant to rescind a request for voluntary demotion, where the complainant failed to show that he was handicapped or that the employer perceived him as such, where there was ample evidence that the employer based its decision on the complainant's inadequate job performance, and where another case was factually
distinguishable. Rasmussen v. DHSS, 81-PC-ER-139, 12/29/82
796.55 Layoff (including failure to recall and retirement in lieu of layoff)
The respondent did not retaliate against the complainant when it cut back her position to 70% where the essence of the decision had been made prior to complainant's request for FMLA leave. 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's reasons for laying off the complainant and not recalling him were not pretextual where the layoff resulted in a net reduction of one position and a dollar savings as well as a sharing of expertise between two disciplines and there was no position to which complainant could be recalled because his former position was not recreated and complainant was not required to be recalled to those positions which did become available. Respondent's decision to lay off the complainant was based on budget and program decisions, not on age. The failure to recall the complainant was based on the unavailability of a vacant position in the proper classification. Sprenger v. UW-Green Bay, 85-0089-PC-ER, 12/30/86
The complainant failed to establish a prima facie case based on race regarding her claim that respondent discriminated against her by not recalling her after layoff where none of the laid off employes was recalled and no vacancy occurred for which complainant was entitled to recall. Mitchell v. UW-Milwaukee, 84-0170-PC-ER, 4/4/86
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 age discrimination was found with respect to complainant's early retirement from his position as Assistant Director of Utilities in charge of the power plant and the maintenance mechanics. Respondent informed the complainant that his position was to be eliminated via reorganization and that it wanted someone with more expertise and with an engineering degree. Following complainant's decision to retire rather than to be laid off, respondent hired a younger employe with an engineering degree and with the ability to obtain an engineer's license. Evidence regarding respondent's contention that it was dissatisfied with complainant's performance was somewhat contradictory but there was not a preponderance of evidence that respondent's performance concerns were pretextual. There was also no persuasive evidence that the reasons for reorganizing the power plant or for requiring an engineering degree for the new position were pretextual. McGrath v. UW-Parkside, 83-0090-PC-ER, 9/26/85
Complainant, who was over 40 years of age at the time of her layoff, failed to establish a prima facie case of age discrimination where there was no evidence as to the ages of the two teachers who were not selected for layoff. Cowie v. DHSS, 80-PC-ER-115, 4/15/84
Discrimination was found where complainant, a female math teacher, was bumped (laid off) from her position by a male guidance counselor who was not certified to teach math nor was he eligible for provisional certification in math and where the same male guidance counselor who was also not certified to teach art was not allowed to bump a male art teacher. Respondent was found not to have followed the clear language of the applicable bargaining agreement requiring subject matter certification by the bumping employe and to have misrepresented the male guidance counselor's certification, resulting in the retention of two male teachers and the layoff of a female teacher. Cowie v. DHSS, 80-PC-ER-115, 4/15/83
Respondent's decision to lay off complainants (five black LTE's) from a work force of five white and seven black LTE's was held not to be motivated by racial considerations where complainants were not as qualified as the employes who were retained, whether because of attendance, nature of jobs performed, length of time since they were hired, or length of time otherwise left in the term of employment. McKee et al. v. DILHR, 80-PC-ER-92, etc., 7/26/82
Probable cause to believe discrimination occurred was found where complainant, a 63 year old woman, was laid off from her teaching job, and where the institution had an underutilization of professional women, where her layoff contributed to that underutilization as well as to the institution's failure to meet established affirmative action goals, and where the male employe who was permitted to bump the appellant was essentially admittedly unqualified under the labor contract. Cowie & Decker v. DHSS, 80-PC-ER-115,114, 5/28/82
Probable cause to believe discrimination occurred was not found where complainant, a 57 year old woman, was laid off from her teaching job, where, although the institution had an underutilization of professional women, and her layoff contributed to that underutilization as well as to the institution's failure to meet established affirmative action goals, the respondent relied on a plausible contract interpretation in determining that there was only one available exemption from layoff, and that was utilized for another older woman teacher. With respect to the argument that the institution failed to give the complainant as much information about alternative certification as a male teacher, this was consistent with the fact that institutional records showed that the complainant was only certified in one area and the male teacher in several. Cowie & Decker v. DHSS, 80-PC-ER-115,114, 5/28/82
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.