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796.60 Discharge/termination (including resignation, constructive discharge and non-renewal of contract)
Complainant's separation from employment resulted directly and solely from her failure to show up for work, to call in her absences, to offer an explanation for her absences, or to appear at the last pre-disciplinary meeting, rather than from illegal retaliation. Complainant's attempt to link her attendance problems to an alleged mental health condition resulting from alleged sexual harassment was not credible. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Complainant would have to prove the existence of intolerable working conditions to sustain a showing of constructive discharge. McCartney v. UWHCA, 96-0165-PC-ER, 3/24/99
Complainant, who had longstanding back problems, underwent surgery in February of 1995, and was on medical leave without pay from February of 1995 until June of 1996, was not discriminated against on the basis of disability when his employment was terminated due to continuing medical problems. Complainant was unable to perform the Youth Counselor 2 duties as they were accurately reflected in the relevant position description. The position description specifically referred to lifting 125 pounds, an independent medical exam in September of 1995 concluded that complainant had a lifting limit of 35 pounds and should avoid repetitive bending, and complainant's physician indicated in April of 1996 that complainant was permanently and totally disabled with respect to complainant's job and was incapable of lifting more than 50 pounds and making certain repetitive motions. Complainant acknowledged he would have to decline a supervisor's request to provide assistance with a large-scale disturbance at the institution. Wille v. DOC, 96-0086-PC-ER, 1/13/99 (appeal pending)
Respondent did not retaliate against complainant under the Family Medical Leave Act or the Fair Employment Act for having filed prior FMLA claims when it terminated his employment where respondent's action was consistent with the manner in which respondent treated other apparently similarly situated employes and where there was no showing that respondent's action was per se unreasonable. Complainant had chronic attendance problems over a lengthy period of time and the record did not support a conclusion that complainant's termination resulted from anything other than complainant's lengthy and continuing history of attendance problems. Preller v. UWHCB, 96-0151-PC-ER, etc., 8/18/98; affirmed by Dane County Circuit Court, 98-CV-2387, 12/6/99
There was no probable cause to believe respondent discriminated against complainant based on sex or retaliated against complainant when respondent terminated his employment, citing 8 specific acts of patient abuse, abusing a co-worker, reading while in work status, demonstrating an undermining attitude, leaving the unit for a smoking break, shoving and screaming at a co-worker and leaving the work unit for an extended break without permission. Although complainant presented evidence that co-workers took unauthorized smoke breaks and read papers, books or magazines in unauthorized areas, complainant failed to show these incidents were seen by or reported to supervisors. Henebry v. DHSS, 96-0023-PC-ER, 7/29/98
No sex discrimination was found with respect to respondent's decision to discharge the complainant from her food service worker position at a correctional facility for violating the fraternization policy where complainant gave a watch to an inmate, received a personal note from the inmate and sent a birthday card to the inmate, all without informing her supervisor. Complainant unsuccessfully sought to show pretext by comparing herself to males who had violated the fraternization policy yet were not discharged or had violated other work rules. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
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 disability discrimination was found with respect to the decision to terminate complainant's employment where the institution had recommended that complainant's probationary period be extended but, less than a week thereafter, respondent learned that complainant had been absent due to the effects of drinking alcohol and that another employe overheard complainant say he felt "like a postal employe." Figueroa v. DHSS, 95-0116-PC-ER, 3/11/98
In order to establish a claim of constructive discharge, an employe must show that the employer knowingly permitted conditions of employment so intolerable that a reasonable person subject to them would resign, citing Goss v. Exxon Office Systems, 747 F.2d 344, 36 FEP Cases 345, 346 (3rd Cir. 1984). Farrar v. DOJ, 94-0077-PC-ER, 11/7/97
No probable cause was found with respect to complainant’s FMLA claim where the stated reason for complainant’s discharge was complainant’s failure to notify his employer, if he was going to be absent due to illness, at least 30 minutes before the commencement of his shift, where complainant was working under the terms of a "last chance" agreement and where complainant’s version of events relevant to his contention that a re-injury prevented him from complying with the 30 minute advance call-in requirement was not credible. Berghoff v. DHFS, 96-0033-PC-ER, 6/19/97
Respondent did not discriminate against complainant on the basis of age in connection with its refusal to extend his retirement date for approximately 4 months where respondent was unable to extend complainant’s retirement date because of budgetary constraints and there was insufficient evidence on which to base a finding that respondent had an opportunity to hire the complainant into one of the other positions in the district that were filled during the same time frame. Lorscheter v. DILHR, 94-0110-PC-ER, 4/24/97
A conclusion that there was no just cause for a discharge does not equate to a conclusion that respondent was illegally motivated. An employer’s mistaken belief or inability to prevail at a hearing or arbitration is not necessarily inconsistent with a good faith belief, independent of complainant’s arrest record, that discipline was warranted. However, the less support there is for the charges, the more likelihood there is of pretext. Russell v. DOC, 95-0175-PC-ER, 4/24/97
While the FEA prohibits the discharge of an employe because of his or her arrest record, it is clear that this prohibition does not extend to prohibiting an employer from discharging an employe because the employer determines that the employe engaged in conduct which is inconsistent with continued employment, merely because the conduct happened to result in an arrest. The employer does no violate the FEA so long as the disciplinary action is taken because of the underlying conduct and not because of the arrest and accompanying criminal charge. Russell v. DOC, 95-0175-PC-ER, 4/24/97
Respondent did not discriminate against complainant on the basis of arrest record when it terminated his employment as a correctional officer as a result of an altercation with his daughter’s estranged husband. Respondent’s investigation included perusal of the police report of the incident which led to complainant’s arrest and other documents related to the criminal proceeding, including statements by witnesses. The investigation resulted in the conclusion that complainant, while in uniform, assaulted his son-in-law and failed to report his arrest to his supervisor. Russell v. DOC, 95-0175-PC-ER, 4/24/97
Complainant failed to sustain his burden of proof as to his claim of discrimination based on conviction record arising from a decision to terminate his employment where evidence showed that the decision to terminate complainant’s LTE employment was based on his misconduct during his prior employment with the agency and that respondent would have reached the same decision to terminate his employment regardless of whether he had been criminally convicted with regard to that underlying misconduct. Rohland v. DATCP, 96-0080-PC-ER, 3/26/97
Where complainant denied much of the underlying misconduct, if she could establish that respondent had a weak case for discharge, it would be probative of pretext. However, even if the employer’s case is not the strongest, and the employer is mistaken about some aspects of the charges, this normally is not conclusive on the issue of discrimination, because the employer may have had a reasonable belief in the accuracy of the information it had available and may not have been motivated by a discriminatory animus. Mitchell v. DOC, 95-0048-PC-ER, 8/5/96
Respondent did not discriminate against the complainant based on handicap when it terminated her employment as a Residential Care Technician in a center for the developmentally disabled. Formal standards required RCTs to lift 55 pounds, complainant acknowledged her job required her to lift in excess of that amount and there were various lifting restrictions placed on complainant by medical providers, ranging to a maximum of 45 pounds. Respondent could not have reasonably accommodated complainant because excluding her from all those work activities which required her to lift in excess of her limitations would be to establish a special position for her, would measurably exacerbate problems of cost, staffing, contractual agreements and employe morale, and would eliminate an essential function of the RCT position. The 55 pound weight lifting requirement was formally initiated well before the event that precipitated complainant's termination. Van Blaricom v. DHSS, 93-0033-PC-ER, 5/2/96
No discrimination was found on the bases of age, national origin/ancestry or sex, nor was FEA retaliation found, relative to the decision not to retain complainant as a faculty member in respondent's Industrial Engineering Department where complainant did not complete her Ph.D. by the date to which she had contractually agreed and where respondent had concerns about complainant's teaching effectiveness, the evidence of which included routine student evaluations as well as a petition filed by a group of students with a dean. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
In a complaint of discrimination relating to the academic-related decisions that bore on complainant's employment as a faculty member, the Commission must give appropriate weight to the academic and pedagogical judgments of the academics who are in the best position to make these kinds of evaluations and who have followed a process the university has developed to provide a careful method of evaluation of these factors. Nowaczyk-Pioro v. UW-Platteville, 93-0118-PC-ER, 4/16/96
No sex discrimination was found with respect to respondent's decision to terminate complainant's employment while she served a probationary period as a social worker, where complainant, a female, was one of two social workers hired during the relevant time period, and the other hiree, a male, was also terminated, and there was no evidence to support complainant's claim that the misconduct was unsubstantiated. Krenzke-Morack v. DOC, 91-0020-PC-ER, 3/22/96
No sex discrimination was found with respect to respondent's decision to terminate complainant's employment while she served a probationary period as a correctional officer. Respondent applied its policy of terminating a probationary correctional officer who is involved in a work rule violation or violations that would be the basis of a suspension or greater penalty for a permanent employe. The record did not support complainant's contentions that 1) that she was not at fault as to some of the occasions she was late; 2) her supervisor held females to a different standard than males; and 3) the institution engaged in a pattern or practice in terms of uneven discipline of male and female correctional officers. Jaques v. DOC, 94-0124-PC-ER, 3/7/96
The decision to terminate the complainant's employment was based on complainant's failure to carry out one of the supervisor's orders rather than complainant's requests for leave to care for his wife and children. Butzlaff v. DHSS, 90-0097-PC-ER, 1/23/96; affirmed by Dane County Circuit Court, Butzlaff v. State of Wis. Pers. Comm., 96-CV-0431, 3/19/97
Complainant failed to establish that respondent violated the FMLA when it terminated his project employment where respondent had discharged complainant because he left the employing institution before the end of his shift and without notification that he was leaving. Emmons v. DHSS, 93-0097, 0112-PC-ER, 11/27/95
The mere existence of a partial disability, involvement in a subsequent car accident, temporary wearing of a cervical collar/back brace as the result of the car accident, and continuing visits to a physical therapist/chiropractor without a record tying the partial disability or the car accident injuries to substantial and lasting changes in the way that complainant handled the major day-to-day activities of her life does not satisfy the element of the analytical framework that requires the complainant to establish that their impairment is such that it actually makes or is perceived as making achievement unusually difficult or limits the capacity to work. Respondent terminated complainant's employment as an Auditor 3, Lead Worker. Although respondent knew that complainant's impairment prevented her from sitting in one place for long periods of time and that complainant wore a cervical collar/back brace and even though complainant may have appeared on occasion to be in discomfort, respondent did not understand her condition to interfere in any significant way with her ability to perform the duties and responsibilities of her position. Complainant never indicated to her supervisors or her co-workers that her conditions were interfering, in a significant way, with her ability to perform her job duties, even though complainant did submit an accommodation request in which she stated her disability "impairs her from working extended hours at her computer" and makes "it difficult to perform numerous hours on the phone." Rufener v. DNR, 93-0074-PC-ER, etc., 8/4/95
No discrimination based on age or handicap was found regarding respondent's decision to terminate the complainant's employment due to negligence in carrying out his duties as a limited term police officer, failure to follow instructions and making false statements.. Hogle v. UW-Parkside, 93-0120-PC-ER, 4/28/95
No probable cause on the basis of handicap or retaliation was found regarding respondent's decisions that complainant could not return to his former position and to offer the complainant a position as a voluntary demotion, where the position to which the complainant could demote was the only position available which fit the criteria noted in a psychologist's evaluation of complainant. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95
Respondent attempted to reasonably accommodate complainant's handicap of depression and an obsessive-compulsive condition when it offered complainant a demotion compatible with a psychologist's report. Respondent had rejected the option of returning the complainant to his former position with various adjustments which respondent reasonably rejected as requiring too much supervisory time and resulting in delayed services to respondent's clients. Respondent had provided complainant an unprecedented medical leave in excess of two years in hope that he could return to his former position. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95
No age or sex discrimination occurred with respect to the decision to discharge the complainant, who worked in a clerical capacity, where she failed to show she performed her job duties satisfactorily and the replacement employes were also in complainant's same protected category. Smith v. UW-Manitowoc County, 93-0173-PC-ER, 4/17/95
Complainant, a correctional officer, failed to sustain her burden of showing age or sex discrimination relating to the decision to terminate her probationary employment, where 8 witnesses testified that complainant's job performance was poor. Snee v. DHSS, 92-0030-PC-ER, 4/17/95
No discrimination based on sex occurred with respect to the decision to discharge the complainant, a female correctional officer, who had been found to have engaged in the purchase and use of crack cocaine while off-duty and to have been untruthful to management about that conduct. Respondent had also discharged a male correctional employe who had been convicted for an off-duty battery incident, and respondent had suspended a second male employe for 10 days who had engaged in gambling with an inmate, had initially denied the conduct but then admitted the conduct of the following day. Complainant had not admitted her misconduct until an arbitration hearing more than one year after the incident. Bohl v. DOC, 93-0004-PC-ER, 2/20/95
Complainant, who was terminated from her position as a house fellow at a campus dormitory, did not establish that she performed her job satisfactorily, where she had violated several requirements of the position by serving alcohol to underage house fellows in her room, using funds for improper purposes, accompanying underage residents to events where alcohol was served and failing to advise her superior of her absence. Jazdzewski v. UW-Madison, 92-0179-PC-ER, 2/20/95
Where respondent conducted its own investigation of complainant's conduct (which served as the basis for complainant's arrest and charge) and reached its own decision that complainant had been involved in an altercation with a female neighbor, had threatened the neighbor when she was in her car, had blocked her car and had kicked her car, respondent's decision to discharge the complainant was not motivated by complainant's arrest record but was motivated by his conduct. Whitley v. DOC, 92-0080-PC-ER, 9/9/94
No race discrimination was found regarding respondent's decision to discharge complainant, where the decision was made by someone of complainant's ethnic heritage and the decision was made after considering the internal investigatory report which showed that complainant had been involved in an altercation with a female neighbor, had threatened the neighbor when she was in her car, had blocked her car and had kicked her car, and after discussing the matter with subordinates and legal counsel. Whitley v. DOC, 92-0080-PC-ER, 9/9/94
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
No handicap discrimination was established regarding the decision to terminate the complainant's probationary employment where there were numerous instances where the complainant's work performance was inadequate, numerous complaints received about his performance and these problems had to be viewed in the context of complainant's status as a probationary employe. During the course of a 30 day review period, additional training was provided to the complainant and his work performance was carefully analyzed. Stark v. DILHR, 90-0143-PC-ER, 9/9/94
Complainant failed to establish a prima facie case of race discrimination regarding the termination of his probationary employment where complainant acknowledged engaging in behavior which clearly violated applicable work rules, and failed to show that he was treated in a different manner than any other employe under similar circumstances. Amaya v. DOC, 93-0104-PC-ER, 7/7/94
Complainant's LTE employment as a security officer was terminated in connection with an off-duty incident where he was drinking, wearing a partial uniform and carrying a pistol in a tavern after closing hours, and subsequently became unruly in a contact with the Milwaukee Police Department. Complainant claimed his termination was based on national origin, but failed to show that he had been treated differently from any other officers, or that respondent's rationale for its action was in any way pretextual. Romero v. WSFP, 90-0075-PC-ER, 6/23/94
It was not handicap discrimination to discharge complainant from his position as a sheet metal worker because medical evidence showed he could no longer perform the job safely due to weakness in his left leg caused by stroke. Complainant's deficits in his left leg were "reasonably related" to his ability to adequately perform his job and returning complainant to the job would place his personal safety at risk. Keller v. UW-Milwaukee, 90-0140-PC-ER, 6/21/94
suffered weakness in his left leg caused by stroke, in order for complainant to perform his job as a sheet metal worker, where to do so would be unwieldy at best. The record also established that mechanical aids would not be adequate from a safety standpoint. Respondent also made a good faith offer of alternate employment, but complainant only was interested in remaining in the sheet metal job. Keller v. UW-Milwaukee, 90-0140-PC-ER, 6/21/94
A constructive discharge claim exists if complainant shows the employer knowingly permitted conditions of discrimination or retaliation to exist to such an extent that a reasonable person would feel compelled to resign. Iheukumere v. UW-Madison, 90-0185-PC-ER, 2/3/94
Complainant did not establish a prima facie case of retaliation for engaging in fair employment activities because she did not show that the decisionmakers who terminated her probationary employment were aware that she had filed a discrimination complaint. Schmidt v. DOC, 91-0099-PC-ER, 2/3/94
The faculty vote not to retain the complainant resulted from his ineffectiveness as a teacher and a schism within the faculty between those with and without a Ph.D. rather than due to complainant's support for the hire of a minority for a vacant instructor post. Fleming v. UW-River Falls, 92-0012-PC-ER, 12/13/93
While the only two black members of complainant's training class were terminated during their probationary periods, complainant's termination was upheld where the record contained numerous specific observations by numerous individuals of unsatisfactory performance by complainant and complainant failed to address any but a few of the observations other than by generally testifying that he was a good employe who worked hard. The Commission rejected complainant's suggestion that because his work performance did not include any illegal activities, it should have been regarded as satisfactory. Green v. DHSS, 92-0237-PC, 12/13/93
Complainant's discharge from his employment as a driver's license examiner was in connection with his acting out in the presence of members of the public, certain behavior related to what was diagnosed as an "immature personality disorder in association with a sexual paraphilia," but which was not diagnosed as a psychiatric illness or impairment, but a personality disorder which did not limit his capacity to work. Therefore, he was not a handicapped individual pursuant to §111.32(8), Stats., since his sexual impulses were not uncontrollable and his behavior did not result from an uncontrollable or irresistible urge or impulse. Miller v. DOT, 89-0092-PC-ER, 11/23/93
Complainant, who is black, was terminated from the State Patrol Academy on the basis of failing to obtain a passing grade on his notebooks. This rationale was not shown to have been pretextual. While the black training officer gave him a passing grade on his first notebook and the two white training officers gave him much lower, failing grades, all three of their scores were relatively consistent in failing complainant on the next two notebooks. There was no evidence that the black training officer was influenced to lower her grades for the last two notebooks, and there was no evidence that the two white training officers used any different approach to grading complainant's notebooks than they did to grading the other cadets, and they also failed some of the white cadets. Complainant's contention that he was terminated prior to the computation of his final grades, in violation of Academy policy, carried no weight because once it was clear he could not obtain a passing grade on his notebooks he was subject to dismissal without waiting for his final grades. Complainant also argued he was not permitted to submit a typewritten corrected notebook, while no white cadets were similarly restricted. However, this action was taken because complainant admitted he had not done the typing himself, and Academy policy required that cadets do all their own work. There was no basis for a conclusion that this policy was not also applied to white cadets. Complainant also cited as evidence of pretext the fact that he had been reported for playing basketball when some of the other cadets were working on academics, but there was no mention of the fact he also played tennis. However, complainant had been counseled specifically concerning his academic problems, and subsequently was observed doing something else (playing basketball) when he could have been working on his academics. This observation was made by all three training officers when they were playing tennis. Owens v. DOT, 91-0163-PC-ER, 8/23/93
The employer failed to meet its responsibility for accommodation where it failed to determine whether an appropriate job opening was available within the agency through transfer and to offer any such vacancy to complainant. Instead, respondent left the pursuit of such matters to complainant. Complainant was discharged for medical reasons connected to his handicap which left him unable to perform as a Correctional Officer. Keul v. DHSS, 87-0052-PC-ER, 6/23/93
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 the decision to terminate his employment where complainant, who was born in Mexico, was employed as the sole LTE in the office, although respondent criticized complainant's work performance, he actually was terminated because there was a reduction in the workload. Villalpando v. DOT, 91-0046-PC-ER, 9/24/93
Respondent showed it would have made the same decision to terminate complainant's probationary employment absent his arrest where complainant failed to report his arrest, in violation of work rules, and respondent has a policy to terminate probationary employes who have a work rule violation. Thomas v. DOC, 91-0161-PC-ER, 4/30/93
Where a substantial portion of complainant's absenteeism could be attributed to her depression, her discharge was substantially attributable to her handicap. Respondent established that complainant was unable to adequately undertake her job responsibilities due to her pervasive absenteeism. Bell-Merz v. UW-Whitewater, 90-0138-PC-ER, 3/19/93
Given the pervasiveness and duration of complainant's absenteeism problem, the absence of any expert opinion that a transfer would have been medically indicated, and the fact that complainant failed to suggest a transfer at the time of her discharge, the respondent did not fail in its duty of accommodation by not having pursued on its own motion the idea of a transfer. Bell-Merz v. UW-Whitewater, 90-0138-PC-ER, 3/19/93
There was insufficient evidence to find complainant was constructively discharged by respondent on the basis of age where the supervisor's criticisms of complainant were based solely upon work performance. Betz v. UW-Extension, 88-0128-PC-ER, 12/17/92
Complainant did not establish that her probationary termination involved sex discrimination, where she failed to successfully challenge respondent's assertions that she was performing below normal expectations and that she was not provided any less training than any other new employe. She also failed to establish that any animosity which may have existed between complainant and her supervisor was due to her gender. Mongold v. UW-Madison, 89-0052-PC-ER, 12/17/92
Respondent did not deny complainant an accommodation where he was completely unable to work and there was no foreseeable change in his condition. Respondent was not required to keep complainant's job open and extend his leave of absence indefinitely as an accommodation under these circumstances. An accommodation normally is an alteration in the working environment, the provision of some special assistance that will enable the employe to perform the duties of his or her position, or the provision of an alternative work assignment or position with duties the employe can perform. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92
No retaliation or handicap discrimination was found as to a termination decision where there were consistently negative evaluations of complainant's work by a number of supervisors and the supervisor who spent the most time directly supervising complainant was then unaware of his earlier complaint. The complainant also grabbed a co-worker's wrist, bruising it enough that a doctor recommended a brace and a week's absence from work. Bjornson v. UW-Madison, 91-0172-PC-ER, 8/26/92
The greater weight of the credible evidence showed that complainant was terminated during her probationary period due to her poor work performance and not to her age. Complainant did not establish that her work performance was satisfactory or the age of the employe appointed to replace her. Engel v. UW-Oshkosh, 89-0103-PC-ER, 8/26/92
Qualifying for Handicapped Expanded Certification does not in and of itself show that complainant is handicapped for purposes of FEA. Complainant's "multiple pulmonary emboli" required only a short hospitalization and a total recovery period of only a few weeks. Complainant did not show that her medical conditions had a tendency to "make achievement unusually difficult or limit capacity to work," or resulted in the relevant work performance problems. The complainant failed to show that those making the subject termination were aware of complainant's depression. Engel v. UW-Oshkosh, 89-0103-PC-ER, 8/26/92
Respondent's hiring of complainant as part of a program for "slow learners" and assignment to him of least complex duties to which a lower productivity standard was applied, established that respondent aware of complainant's handicap. In view of expert testimony that complainant's mental impairment would not prevent him from performing duties of Library Services Assistant position once such duties were learned, his performance deficiencies, rather than his handicap, was the basis for his termination. Fischer v. UW-Madison, 84-0097-PC-ER, 7/22/92
Complainant's probationary termination violated the FMLA because it was based in part on leave taken that was subject to the FMLA, notwithstanding that complainant's total absence from employment exceeded the 80 hours permitted during a 12 month period pursuant to §103.10(4), Stats. The latter provision does not mean an employe loses all protection under the FMLA once he or she exceeds 80 hours. It simply places an annual limit on the number of hours of statutory leave that an employer is required to provide under the FMLA. Meyer v. DHSS, 91-0006-PC-ER, 6/11/92
Respondent's termination decision was overturned where 30 hours of the 62.5 hours of absence and 2 tardy days that were recited in the termination letter involved serious health conditions that were covered by the employe's FMLA statutory leave and where respondent failed to offer any evidence that it would have terminated complainant's employment if it had not considered the FMLA protected absences. Meyer v. DHSS, 91-0006-PC-ER, 6/11/92
The FMLA definition of a serious health condition (§103.10(1)(g), Stats.) were not satisfied by a "groin pull" which did not required follow-up care after the initial contact with a health care provider. The definition was satisfied for a condition for which complainant was seen in the emergency room and which was diagnosed as gastroenteritis and hyperbilirubinemia, with a recommendation that complainant see his personal physician in two days, and where he was hospitalized for three days commencing four days after that for the same symptoms. The period for which he was hospitalized, with a diagnosis of acute peptic ulcer disease, was also covered by the statutory definition. Meyer v. DHSS, 91-0006-PC-ER, 6/11/92
Although a written psychological evaluation indicated that complainant's handicap would cause him to have a great deal of trouble understanding any form of written instructions and to have trouble retaining any complex oral instructions, and would require him to obtain employment which would involve extensive repetitious training, close supervision, simple tasks, and no self-direction and self-control, complainant's work history indicated that these limitations did not significantly affect complainant's ability to independently perform janitorial tasks. Complainant failed to show a clear causal relationship between his handicap and his performance deficiencies. No discrimination was found with respect to the respondent's decision to terminate complainant's employment. McClure v. UW-Madison, 88-0163-PC-ER, 4/21/92
Complainant, who alleged discrimination based on race, failed to establish a prima facie case with respect to the decision to terminate her employment where her performance did not, at any point during her employment, come close to meeting the performance standards for the position. In addition, respondent had extended complainant's probationary period, located two other positions and encouraged complainant to compete for them and, when she declined to do so, located an LTE position for her. Watkins v. DHSS, 89-0073-PC-ER, 4/17/92
Where complainant failed to show a clear causal relationship between his handicap and his performance deficiencies, no discrimination was found with respect to the decision to terminate his employment. Jacobus v. UW-Madison, 88-0159-PC-ER, 3/19/92; affirmed by Dane County Circuit Court, Jacobus v. Wis. Pers. Comm., 92CV1677, 1/11/93
Respondent's decision to terminate the complainant's employment rather than to permit him to resign was upheld. Complainant, a male, relied upon a comparison with a female employe who was permitted to resign but the complainant was involved in a security-related disciplinary situation (sleeping on his post) while the female employe's misconduct, excessive absenteeism and tardiness, was not security-related. Bender v. DOC, 90-0049-PC-ER, 8/8/91
Respondent failed to sustain its burden with respect to handicap accommodation where it refused to continue to employ the complainant in any capacity at the University of Wisconsin Hospitals and Clinics based upon a physician's evaluation which did not rule out the likelihood of another psychotic episode, where the evaluation was qualified by the facts that there had been a limited opportunity for evaluation, the complainant had received no treatment, and the physician testified he had successfully treated physicians with the same kind of illness as complainant who had been able to continue their employment at the same work site. Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 11/6/91
There was probable cause based on sex with respect to the respondent's decision to terminate the complainant's employment rather than to permit him to resign where a female employe was permitted to resign and where there was no real basis to distinguish between the two employes other than that the other employe had filed an informal complaint. Bender v. DOC, 90-0049-PC-ER, 8/8/91
Complainant, who had been employed as an Assistant State Public Defender, could not or would not adequately undertake the job-related responsibilities of his employment, based on his substantial problems with his attendance, with his aversion to working with certain clients, with his accessibility and with his reluctance to handle jury trials. Shevlin v. Office of Public Defender, 87-0101-PC-ER, 4/17/90
No probable cause based on color and race was found with respect to an allegation of an abusive work environment allegedly resulting in the complainant's constructive discharge in 1988 where the allegation rested on two incidents, one occurring in 1979 and the other in 1986. The Commission found that the 1986 incident was arguably related to complainant's race and, although offensive, was isolated in time and the respondent took reasonable steps in responding to the incident. Complainant failed to show that the incidents were pervasive, sustained or numerous. Yarbrough v. DILHR, 88-0103-PC-ER, 2/22/90
No probable cause based on national origin was found with respect to the decision to terminate the complainant from an LTE position where during the entire course of her employment, she failed to meet quantity or quality performance standards, required close and constant supervision and frequent retraining, she made the same errors repeatedly, she changed her work schedule without prior notice or approval and she took an excessive amount of leave. Acharya v. DOR, 89-0014, 0015-PC-ER, 11/3/89
Probable cause was found with respect to the decision to terminate the complainant's probation where complainant, a male, had been asked out on four occasions by his female supervisor and his employment was terminated relatively shortly after he declined the invitations. Complainant's work performance was comparable in many respects to that of his peers and many of the specific points relied on by respondent in support of his termination were unfounded. Kloehn v. DHSS, 86-0009-PC-ER, 9/8/89
While complainant, a female, suffered isolated incidents of sexual harassment, respondent, upon notice of such conduct, took immediate action to remedy the matter. Complainant was not subjected to continuous sexual harassment which caused her to fail probation but was terminated when respondent concluded she could not master the necessary job skills within the probationary period. No probable cause was found. Bender v. DOR, 87-0032-PC-ER, 8/24/89
Respondent's decision to terminate the complainant's employment as an Institution Aide at a mental health institution constituted discrimination based on arrest record where management knew when complainant was hired about his criminal conviction in 1980 and after more than two years of employment, complainant was arrested and while this charge was pending, the respondent decided to terminate him. The respondent's professed reliance on the 1980 sexual assault conviction as a basis for the discharge was pretextual where the employer had no policy in place concerning conviction records, including no practice of screening job applicants with respect to conviction records. Snow v. DHSS, 86-0051-PC-ER, 4/11/89
Where an employer tells an employe in all likelihood he will be terminated, and the employe chooses to protect himself as best he can by resigning rather than have the stigma of a discharge on his employment record, it cannot be gainsaid that the employer has taken some kind of adverse employment action against the employe. Snow v. DHSS, 86-0051-PC-ER, 4/11/89
Respondent's action of discharging the complainant, a black female, from her position as a correctional officer for engaging in disorderly or illegal conduct and failing to provide accurate or complete information when requested constituted discrimination based on race, sex and color where complainant worked in a sexually and racially hostile environment, respondent decided to discharge the complainant before it had conducted its fact-finding investigation and white male employes, disciplined under the same personnel policy, were treated less harshly than complainant. Bridges v. DHSS, 85-0170-PC-ER, 3/30/89
No probable cause based on arrest/conviction record or race was found with respect to a decision to terminate the complainant's employment as an LTE where the respondent had concluded, based on a reasonable though not foolproof procedure for checking on the complainant's presence at various times during the work day, that the complainant had been falsifying his hours. The fact that complainant returned to work after a first arrest undermined complainant's contention that the termination decision, made after a second arrest, was motivated by that arrest or by an earlier conviction. Pugh v. DNR, 86-0059-PC-ER, 9/26/88
No probable cause based on race, handicap or retaliation 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. Prior to the discharge, respondent was advised that the complainant was receiving treatment for alcohol problems and he was placed on a medical leave. When complainant failed to report back to work on the designated date, the respondent was not required by the FEA to extend the complainant's leave of absence if it had ascertained he was unable to work because of alcoholism, citing Squires v. LIRC, 97 Wis. 2d, 648 (Court of Appeals, 1980). It was not a situation where the complainant was unable to contact his employer. Rose v. DOA, 85-0169-PC-ER, 7/27/88
No probable cause based on national origin discrimination was found with respect to the decision to terminate the complainant's employment as a Data Entry Operator 1 where the complainant did not adequately respond to direction from her supervisors and was a disquieting influence on the work place. Certain misunderstandings did occur, likely based in part on complainant's imperfect English language ability, but there was no evidence of discrimination. Wilczewski v. DOR, 86-0113-PC-ER, 7/27/88
Probable cause was found based on conviction record with respect to an allegation arising from a constructive discharge where complainant, who had been convicted of second degree sexual assault, was employed as an institution aide at Winnebago Mental Health Institute, he had been employed with respondent for nearly three years, he had not been asked as part of his employment application whether he had a conviction record, and the institution had no written policy regarding employment of persons with conviction records and did not screen job applicants or employes on the basis of conviction records, one of his supervisors at the institution had been aware of complainant's criminal record for some time but took no action., and where there was no dispute that the discharge was because of his criminal record. Snow v. DHSS, 86-0051-PC-ER, 6/20/88
No probable cause based on color, race, retaliation or sex was found as to claims relating to discharge and providing negative job references where complainant's employment as a limited term employe ended when complainant used compensatory time to finish the 1044 hour maximum of his LTE appointment and respondent's references were based on complainant's poor work record. Browne v. DHSS, 85-0072-PC-ER, 8/5/87
Respondent did not discriminate when it terminated complainant's employment as a Correctional Officer 2, which involved a special duty of care, due to complainant's inability to adequately perform some of the duties listed on the standard CO 2 position standard. Respondent was entitled to assume that a doctor's opinion stating that complainant "will most likely never return to his old job duties" but that he could "engage in sedentary work" meant that complainant was unable to adequately perform a past assignment which he had received four months earlier even though complainant had been on medical leave during the four month period. Conley v. DHSS, 84-0067-PC-ER, 6/29/87
No probable cause was found as to complainant's discharge where complainant, who suffered from an organic mental disorder, did not perform his work properly, made threatening statements/gestures to co-workers, supervisors and non-employes, and had unexcused absences, where the complainant's handicap was reasonably related to his ability to carry out his responsibilities and respondent made an effort to accommodate his handicap. Brummond v. UW-Madison, 84-0185-PC-ER, 85-0031-PC-ER, 4/1/87
There was no probable cause in regard to the discharge of the complainant from his Building Maintenance Helper 2 position where there was no evidence that retaliations played a part in the decisions and where complainant did not perform his work properly, made threatening statements/gestures to co-workers, supervisors and non-employes and had unexcused absences. Brummond v. UW-Madison, 84-0185-PC-ER, 85-0031-PC-ER, 4/1/87
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 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
Termination of the complainant, who suffered from vision problems which affected his ability to quickly locate and identify documents but had a very limited effect on his actual reading speed, was upheld where complainant's lack of speed in performing his tasks meant that he was simply not performing some of those duties set out in his position description. Rau v. UW-Milwaukee, 85-0050-PC-ER, 2/5/87
Complainant reasonably refused to assist in the delivery of a drum of sulfuric acid because of a reasonable and good faith belief that the task involved a danger of serious injury or death. The complainant also engaged in protected activity when he sent DILHR a copy of a memo to his supervisor specifically questioning the safety of moving the acid. Complainant's subsequent termination was based in part on these activities but these factors were not a substantial reason for the termination and the termination would have occurred in the absence of these factors. Complainant's attitude toward management throughout the course of his four months of employment was contentious and in some respects contumacious, including one statement that the supervisor's memo would make good toilet paper. Strupp v. UW-Whitewater, 85-0110-PC-ER, 7/24/86; affirmed by Milwaukee Circuit Court, Strupp v. Pers. Comm., 715-622, 1/28/87
Complainant, 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
No probable cause based on handicap was found with respect to the termination of the complainant's employment where complainant's job performance was erratic, the quality and quantity of her work was inconsistent and her judgment in the office was questionable. Kaufman v. UW-Madison, 84-0065-PC-ER, 8/6/86
The complainant, who had an arrest record of which the respondent was aware, and who was discharged, failed to establish his job performance was satisfactory, where he did not complete his assigned work, was verbally abusive and threatening to both co-workers and supervisors, was threatening toward and made off-color remarks about members of the public with whom he came into contact and had unexcused absences/tardiness. Even if he had established a prima facie case, complainant failed to establish that the unsatisfactory work record was pretextual. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86
No probable cause based on arrest/conviction record or handicap was found with respect to the termination of complainant's employment, where complainant, a probationary employe who was handicapped, missed four consecutive days of work after he was arrested, complainant could not say when he would be released from jail and return to work and where there was an immediate need to have someone perform the complainant's duties. No evidence was presented showing that complainant was treated differently than other probationary employes who missed several work days. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86
No probable cause was found with respect to the termination of complainant's employment, where complainant, a probationary employe was was handicapped, missed four consecutive days of work after he was arrested, where complainant could not say when he would be released from jail and return to work and where there was an immediate need to have someone perform the complainant's duties. No evidence was presented showing that complainant was treated differently than other probationary employes who missed several work days. Brummond v. UW-Parkside, 83-0045-PC-ER, 5/30/86
No probable cause existed with respect to respondent's decision to terminate the employment of complainant, an insulin dependent diabetic, where complainant had essentially abandoned his job and refused to return, complainant could safely perform his work with a minimum of risk to himself and to others and where respondent perceived complainant's physician to have indicated that complainant could work safely. Lueders v. DHSS, 84-0095-PC-ER, 5/29/86
No probable cause based on age was found as to respondent's decision to terminate complainant's employment from a Laborer Special position where complainant's supervisor set high performance standards for all the employes he supervised, complainant's work filed to meet the supervisor's standards and the record failed to show that the complainant was treated differently than any other employe supervised by complainant's supervisor or that complainant's supervisor treated employes over the age of 40 any differently than employes under the age of 40. Podevels v. UW-Milwaukee, 84-0204-PC-ER, 3/13/86
No discrimination was found where complainant, who was black, had been discharged for receiving and possessing a quantity of marijuana on the job. A second, white, employe was not disciplined for being suspected of smoking marijuana on the job due to a lack of physical evidence. However, the second employe was verbally warned that, if caught with marijuana, he would be disciplined up to and including termination. Massenberg v. UW System, 81-PC-ER-44, 2/6/86
No probable cause was found as to the decision to terminate the complainant's employment while on probation where the complainant was chronically late for work even after having been warned and where the evidence showed that the respondent treated the various employes alike, regardless of their race. Gray v. DHSS, 83-0132-PC-ER, 10/23/85
No probable cause was found where, due to a handicapping condition of mental illness, the complainant was unable to adequately discharge the duties and responsibilities of his position of Building Construction Superintendent. Burnard v. DOA, 83-0040-PC-ER, 1/30/85
No probable cause was found as to allegations of discrimination based on color, handicap and race, where complainant's employment was terminated based on his unsatisfactory work performance due to consistent failures to meet deadlines for the completion of assignments. Johnson v. DHSS, 83-0032-PC-ER, 1/30/85
No probable cause based on sex was found as to complainant's resignation where she had been unable to work effectively with her staff where the complainant was treated in the same manner as other bureau administrators and where complainant's predecessor, also a woman, had effectuated good rapport with her staff during the nine months she had filled the position in an acting capacity. Lindas v. DHSS, 80-PC-ER-96, 1/3/85
Respondent did not discriminate against the complainant when it discharged him where his performance was unsatisfactory and he used excessive sick leave and leave without pay. However, the Commission did find discrimination as to certain conditions of employment. The mere existence of a work environment in which religion-based harassment is practiced and tolerated is not sufficient, in and of itself, to force a conclusion that the discharge of the harassed employe was motivated by religious discrimination and that the reasons offered by the employer for the discharge were a pretext for such discrimination. Laber v. UW-Milwaukee, 81-PC-ER-143, 11/28/84
Probable cause for discrimination based on race and color was found where complainant, who is black, was discharged for receiving and possessing marijuana during work time where complainant was arrested but no charges were pursued, and where respondent took no disciplinary action against a white male co-worker despite having no doubts that the co-worker had been smoking marijuana on the job. Massenberg v. UW-Madison, 81-PC-ER-44, 9/14/84
No discrimination based on race and sex was found where respondent constructively discharged the complainant, who is white and was employed at a correctional institution, where respondent reasonably concluded that complainant was involved in a romantic relationship with an inmate at the institution and where there were no comparisons establishing that respondent imposed a different level of discipline against similarly situated employes of a different race. Winterhack v. DHSS, 82-PC-ER-89, 8/31/84
No discrimination was found where respondent reasonably discharged the complainant, a female who was employed at a correctional institution, where complainant acknowledged she had an affair with a male co-worker who had transferred to another institution five months prior to complainant's discharge, where respondent had reasonably concluded that complainant was also involved in a romantic relationship with an inmate at the institution and where there were no comparisons establishing that respondent imposed a different level of discipline against male employes who had been romantically involved with inmates. Winterhack v. DHSS, 82-PC-ER-89, 8/31/84
No discrimination was found as to respondent's decision to discharge the complainant, a male, where respondent's stated reasons for the discharge were credible and justified termination and where complainant failed to establish that female employes with similar or worse work records serving an original probation were retained while complainant was discharged. Berryman v. DHSS, 81-PC-ER-53, 8/l/84
No probable cause based on age was found where complainant had argued he was forced into early retirement because of harassment from his supervisors where complainant and his supervisor had disagreed as to the importance of complainant's program, complainant was reluctant to respond to supervision and complainant made no effort to establish the ages of his co-workers. Hartl v. DILHR, 82-PC-ER-126, 7/5/84
No probable cause based on creed was found where complainant, an agnostic and an alcoholic, was terminated primarily because of chronic absenteeism, tardiness, and low productivity and complainant was rejected for participation in an alcoholic treatment program because he indicated he did not need the program, not because of his religious beliefs. Burton v. DNR, 82-PC-ER-36, 8/31/83
No probable cause was found where complainant, an alcoholic, was terminated primarily because of chronic absenteeism, tardiness, and low productivity, where respondent made extensive efforts to accommodate complainant's handicap via treatment programs and where complainant was terminated after the treatment program was unsuccessful and complainant refused to agree to change treatment programs or to alter the existing program. Burton v. DNR, 82-PC-ER-36, 8/31/83
No probable cause was found with respect to the probationary termination of a white female Institution Aide by a black male supervisor, where the record clearly supported the finding that the complainant's work was unsatisfactory, the record included the testimony of many of her white, female co-workers, and this testimony overshadowed the fact that her Performance Planning and Development Report reflected that she had met certain objectives. Shilts v. DHSS, 81-PC-ER-16, 2/9/83
Where the complainant did not have a past arrest record, it was not discrimination on the basis of arrest record for the respondent to have discharged him in part for possession of a concealed weapon while at work, where such conduct also was the basis for his arrest. Buller v. UW, 80-PC-ER-49, 10/14/82 factual findings modified by order on 12/2/82; appeal dismissed by Dane County Circuit Court, Buller v. Pers. Comm.,, 83-CV-8, 12/14/89
No probable cause based on race was found where the complainant was terminated by the UGLRC, and the only substantial evidence of discriminatory animus attributable to the Governor's alternate to the UGLRC was based on the testimony of two long-time political opponents of the alternate whom the examiner believed were lacking in credibility. McLester v. UGLRC, 79-PC-ER-38, 10/14/82; affirmed by Outagamie County Circuit Court, McLester v. Pers. Comm., 82-CV-1315, 7/30/84; affirmed by Court of Appeals District 111, 84-1715, 3/12/85
Respondent did not engage in race discrimination by discharging appellant for excessive absenteeism where appellant had previously been disciplined on numerous occasions for his extensive absenteeism during the prior 7 years and was unable to satisfactorily explain his unexcused absence to his supervisor. Norwood v. UW-Parkside, 78-PC-ER-62, 5/13/82
There was no showing of discrimination by respondent when it terminated complainant's employment where the complainant, approximately 2§ weeks after leaving work to enter a hospital, had informed the respondent that he did not want his job back. Green v. UW, 79-PC-ER-129, 5/13/82
Where the complainant, who had been discharged, was guilty of some misconduct but established that he had been more harshly treated than similarly-situated white employes, and the respondent's stated reason for having failed to discipline a white employe with a comparable record of missed call-ins was that that employe was handicapped due to Agent Orange exposure, and the employe denied a handicap or that he had suggested such a handicap, the stated reason was found to be pretextual and it was determined that discrimination had occurred. McGhie v. DHSS, 80-PC-ER-67, 3/19/82
Assuming that the complainant established a prima facie case in a hearing on a complaint of discrimination on the basis of arrest/conviction record, it could not be found that the reasons for termination of probationary employment were pretextual, where the complainant was caught playing checkers on the job and drinking in the dormitory at the Corrections Academy at Oshkosh, had failed to prepare written assignments, and had been the subject of reports of inadequate performance by co-workers. The complainant was unable to show that he had been treated unequally, as while it was established that drinking at the academy was a "tradition", this was an unusual situation as it was the only known case where trainees had been caught and reported back to the employing institution, and all of the involved WCI-GB employes were counseled after their return to the institution. Peters v. DHSS, 80-PC-ER-122, 3/19/82
The Commission found no probable cause in regard to the termination of complainant's employment where there was ample evidence of the complainant's inadequate performance, there was little if any evidence that her asthmatic condition was causative with respect to her performance problems, and although the complainant's supervisor was aware of certain complaints by the complainant to the vice-chancellor, this was considered of little significance against her record of inadequate performance. Way v. UW, 78-122-PC, 79-PC-ER-4, 3/8/82
The Commission found that the respondent's explanation for the termination of complainant's probationary employment was not pretextual where her prior performance had been unsatisfactory in some respects and where she was six hours late for work one day and failed to offer any explanation therefore. Glaser v. DHSS, 79-PC-ER-63, 79-66-PC, 7/27/81
No discrimination based on sex or retaliation was found where the complainant's contract was not renewed. The evidence showed only that there was a dispute between her and other faculty members regarding a curriculum matter, the substantive reasons for non-renewal given by respondent were not challenged, five of the six instructors non-renewed were males, and the complainant was afforded all of her rights of appeal set forth in the statutes and administrative code. Cole v. UW, 79-PC-ER-50, 1/13/81
There was no probable cause to believe that respondent had discriminated against the complainant on the basis of handicap where it was difficult to see how respondent could have accommodated complainant in the position in question and where complainant clearly was "physically unable to perform his duties" within §111.32(5)(c) and, therefore, was subject to termination, subject to the requirements of §230.37(2), Stats. Stasny v. DOT & DP, 79-192-PC, etc., 1/12/81
The Commission found no race discrimination in the discharge of the complainant food service worker where she was absent on the average about one shift per week and where a non-discharged white employe did not have a similar or worse attendance record. Bowers v. UW-M, 78-PC-ER-1, 7/28/80
Complainant failed to show she was discriminated against based on race, retaliation or sex in regard to her discharge where she had been advised that a state car should never be kept out overnight without management approval and one week later, without management approval, she parked a state car overnight in front of her home and it was damaged in an accident. Complainant had filed a charge of discrimination with the Commission approximately one month prior to the state car incident but there was no showing that respondent was aware of the existence of the complaint. Stonewall v. DILHR, 79-PC-ER-19, 5/30/80
Where the complainant was handicapped due to back and neck pains, but declared to his supervisors that he was totally unable to do the duties required, did not provide requested medical information on his condition, and did not anticipate being able to return to work at any specific time in the foreseeable future, no discrimination was found with respect to his discharge. Fuller v. UW, 78-PC-ER-55, 3/13/80
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.