796.70 Job references
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
796.95 Other
A "last chance" warning to complainant that certain conduct would result in the termination of his employment was not an adverse employment action under the Fair Employment Act. The complaint was based solely on that one action by respondent and complainant failed to show that a reasonable employe similarly situated to complainant would experience the action as a hostile environment. Williams v. DOC, 97-0086-PC-ER, 3/24/99
No probable cause was found with respect to the actions of denying complainant overtime on two occasions, where respondent's actions were consistent with the provisions of the correctional facility's BFOQ plan. Complainant, a male, did not attack the validity of the BFOQ plan. Schrubey v. DOC, 96-0048-PC-ER, 1/27/99
Complainant failed to establish a prima facie case of disability discrimination regarding alleged adverse terms and conditions of employment where she failed to present any evidence that she was treated differently than non-disabled co-workers in similar circumstances. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98
Where, throughout complainant's employment, respondent consistently provided and demonstrated a willingness to provide complainant a manageable work schedule, respondent adequately accommodated complainant's disability. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98
Respondent reasonably accommodated complainant's disability where it followed the advice of its expert in establishing the specifications for the ergonomic chair requested by complainant. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98
Respondent did not retaliate against complainant when it directed her to check in and out of work via electronic mail. Complainant had a flexible schedule and respondent was otherwise unable to know her actual work hours. Endlich v. DILHR, 95-0079-PC-ER, 10/13/98
Respondent failed to accommodate complainant's disability within a reasonable period of time where there was no evidence offered by respondent to explain or justify the lapse of time in providing complainant a chair with a headrest. In March of 1994, complainant submitted a Disability Accommodation Report form for such a chair. Respondent's affirmative action compliance officer informed complainant in September of 1994 that respondent would provide him with the chair but then did not follow up until January of 1996. Hawkinson v. DOC, 95-0182-PC-ER, 10/9/98
Two alleged references by a program manager to "choking this chicken" as well as hand gestures by the same program manager mimicking masturbation, all made during the same meeting with complainant and two others, were not sufficiently severe or pervasive to satisfy the statutory definition of sexual harassment. The statements were mere offensive utterances which occurred on the same day. Bruflat v. DOCom, 96-0091-PC-ER, etc., 7/7/98
There was no probable cause to believe respondent discriminated against complainant on the basis of handicap with respect to a number of different terms and conditions of employment. Farrar v. DOJ, 94-0077-PC-ER, 11/7/97
Respondent did not discriminate against complainant on the basis of his conviction record when his supervisor and lead worker contacted complainant’s probation agent in relation to complainant’s extended unauthorized absences from work. Complainant filled a position which required the employment of an ex-offender and the position had a significant rehabilitation component in addition to the traditional components of an employment relationship. Perrien v. DOC, 95-0031-PC-ER, 7/2/97
In dicta, the Commission concluded that respondent did not retaliate against complainant for engaging in fair employment activities when it investigated him for a possible work rule violation where there was no evidence to contradict respondent’s witnesses that the procedure followed in complainant’s case was consistent with how other disciplinary cases were handled by the agency even though that procedure was contrary to a training manual issued by the Department of Employment Relations where the respondent had never formally adopted any formal disciplinary procedure. Klein v. DATCP, 95-0014-PC-ER, 5/21/97
Respondent did not discriminate against complainant based on his handicap when it provided information to complainant about his appeal rights and options during two telephone calls where there was no evidence of wrongdoing by the employer, such as an intent to conceal information or a legal duty to fully disclose such information. Furthermore, the failure to provide certain information was cured by a follow-up letter. Krueger v. DHSS, 92-0068-PC-ER, 7/23/96
A few tense conversations between complainant and his supervisor do not amount to opprobrious or severe mistreatment so as to alter the conditions of his employment and create an abusive working environment. Complainant failed to establish harassment based on handicap. Eddy v. DOT, 93-0009-PC-ER, 9/14/95
Respondent adequately accommodated complainant, who suffered from motion sickness, during a three month period after respondent required complainant and three co-workers to rotate seats when travelling in a state-owned van. There had been no prior policy and complainant had invariably ridden in the front seat. At the time the new policy was imposed, respondent's supervisor was vaguely aware that complainant suffered from motion sickness but the supervisor was unaware of the specific connection between riding in the back of the van and the illness. When, after three months, complainant made his supervisor aware of the connection between his handicap and the new policy, respondent immediately instituted a temporary accommodation which satisfied the complainant, and once the need for that accommodation was verified by complainant's physician, respondent made it permanent. Eddy v. DOT, 93-0009-PC-ER, 9/14/95
Respondent did not discriminate on the basis of sex regarding its decision to initiate an investigation of complainant's conduct when a co-worker had informed management that complainant's attentions were unwelcome and there was no evidence that management would have acted differently if the sexes of the "stalker" and "victim" had been reversed. Erickson v. WGC, 92-0207-PC-ER, 92-0799-PC, 5/15/95
No probable cause on the basis of handicap or retaliation was found regarding respondent's requirement that he obtain a psychological evaluation and a situational assessment at respondent's expense, where respondent had incomplete information from complainant's physicians about complainant's ability to return to work at full performance and the accommodations needed. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95
Probable cause on the basis of handicap or retaliation existed regarding respondent's conduct of providing incorrect information about complainant's appeal rights where the allegation was not addressed by respondent at hearing. Krueger v. DHSS, 92-0068-PC-ER, 4/17/95
No sex discrimination or FEA retaliation existed as to a variety of conditions of employment, including relocation, removing a sign in complainant's office, discussing an internal complaint, denying complainant's request for an adjusted work schedule, declining to investigate the defacement of articles written by complainant, not including complainant in a meeting, the nature of working relationships with co-workers, disclosing to co-workers that complainant had been disciplined, requiring complainant to attend certain training, assignment of duties, responses to complainant's requests for changing her duties, scheduling meetings, use of a job performance improvement plan and union representation at weekly meetings. Stygar v. DHSS, 89-0033-PC-ER, etc., 4/17/95
Where complainant alleged a pattern of verbal harassment on the basis of national origin but frequently initiated and participated in national origin-oriented banter and comments, and never complained of his treatment to higher level supervisors, he failed to establish a violation of the FEA. Complainant's claims that he was discriminated against on the basis of national origin with respect to equipment provided, and having been required to rewrite reports were also not established, because he was unable to demonstrate any pretext with respect to management's explanations for these matters. Romero v. WSFP, 90-0075-PC-ER, 6/23/94
Complainant failed to show disparate treatment or retaliation in regard to respondent's request for medical information where complainant had been absent on medical leave for a substantial period of time, where complainant had resisted all attempts by respondent to obtain information relating to her medical condition, and where respondent needed to arrange for coverage of complainant's responsibilities as a lead worker. Dahlberg v. UW-River Falls, 88-0166-PC-ER, 89-0048-PC-ER, 3/29/94
Sexual harassment had not been shown where certain actions, e.g., placing nude photos and figurines on complainant's desk and placing soap in her desk drawers, were directed at one of complainant's male co-workers as well; where the other allegations concerned the circulation of rumors to which complainant contributed as well, and as to those two statements made to complainant which did constitute "unwelcome verbal conduct of a sexual nature;" respondent took immediate and appropriate action once made aware of complainant's concerns. Dahlberg v. UW-River Falls, 88-0166-PC-ER, 89-0048-PC-ER, 3/29/94
A complaint of sex discrimination under the FEA fails to state a claim upon which relief can be granted where the complaint consists primarily of allegations of an unsatisfactory work environment involving specific problems complainant experienced with supervisors (most of whom were of the same gender), coworkers, and others. In responding to the motion to dismiss, complainant's attorney did not attempt to explain how these incidents involved sex discrimination, except to the extent that it was alleged that the clerical staff were treated as "emotional punching bags" by their supervisors, who were frustrated and intimidated by treatment they were receiving at the hands of their supervisors. Assuming all of complainant's allegations to be true for the purpose of deciding this motion, the chain of causation--complainant's supervisors react to a sexist atmosphere created by their supervisors by using complainant as an "emotional punching bag"--is too extended for a conclusion that respondent discriminated against complainant because of sex in violation of §111.322(1), Stats. Also, management had no obligation to act where the conditions about which complainant was concerned did not involve sex discrimination but rather involved disagreements with her supervisor about her approach to supervision. Makl v. UW-Stevens Point, 92-0038-PC-ER, 4/30/93
Respondent did not discriminate against complainant on the basis of handicap or retaliation with respect to conditions of employment. While the record reflected a poor relationship between complainant and his supervisor, there was no reason to conclude that this was attributable to appellant's handicap or to retaliation as opposed to a number of other possible reasons. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92
Respondent did not discriminate against complainant on the basis of handicap in connection with his suspension with pay pending an investigation for a crime that ultimately was attributed to another employe. Respondent had a reasonable basis for having suspected complainant, and this was not shown to have been pretextual. Passer v. DOC, 90-0063-PC-ER, etc., 9/18/92
Respondent did not retaliate against the complainant when it instructed the complainant to revise a travel expense reimbursement form where this procedure was consistently followed by complainant's supervisor when the claimed amount was in excess of the maximum allowed. Sieger v. DHSS, 90-0085-PC-ER, 11/8/91; reversed on other grounds by Court of Appeals, Sieger v. Wis. Pers. Comm., 181 Wis. 2d 845, 512 N.W.2d 220, (Court of Appeals, 1994)
Respondent did not retaliate against the complainant when it required documentation for a travel expense reimbursement form where such documentation was standard practice for the respondent. 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 whistleblower retaliation was found with respect to a decision to reorganize the complainant's work unit where the reorganization did not result in any change in the complainant's classification or his position description and there was no evidence that the reorganization plan was promulgated so as to retaliate against the complainant. Holubowicz v. DHSS, 88-0097-PC-ER, 9/5/91
No probable cause based on whistleblower retaliation was found with respect to the respondent's decision to bar entry of complainant into a correctional institution where such action was standard procedure when there was an investigation pending which directly affected institution security. In addition, the respondent's action was taken by persons who were unaware that complainant had engaged in a protected activity. Holubowicz v. DHSS, 88-0097-PC-ER, 9/5/91
No probable cause based on whistleblower or occupational safety retaliation was found with respect to the respondent's scheduling the complainant for a pre-disciplinary hearing where respondent's practice was to schedule such hearings whenever an investigation had identified a work rule violation and the person who had conducted the investigation was unaware that complainant had engaged in a protected activity. Holubowicz v. DHSS, 88-0097-PC-ER, 9/5/91
No probable cause based on race, sex or retaliation was found with respect to the decision not to create a new position for which the complainant would likely have been a candidate where, even though there were some anomalies, the respondent's staffing pattern did not provide for such a position. Harris v. DILHR, 86-0021, 0022-PC-ER, 2/22/90
No probable cause was found with respect to advice given the complainant regarding the effect of certain legislation on his retirement options where the reasons given by respondent for its statutory interpretation were legitimate and non-discriminatory and the respondent provided the same information to anyone who raised the same issue. Prill v. DETF & DHSS, 85-0001-PC-ER, 12/15/89
Respondent's decision not to allow inclusion of the union steward or attorney requested by the complainant to represent the complainant at an investigative meeting did not constitute whistleblower or public employe safety and health retaliation where there was nothing in the department-wide policy which indicated that the represented employe had the choice to select either a personal attorney or a local union grievance representative who was unavailable at the time of the hearing and there was no evidence that on other occasions, delays in the hearings had been permitted to allow for representation by either a personal attorney or by a union representative who was unavailable at that time. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
The following actions by the respondent were not found to be retaliatory under either the whistleblower law or the public employe safety and health provisions: 1) the refusal to provide assistance when the complainant called for help where testimony indicated assistance was not required, 2) the decision to investigate a report which raised serious questions about complainant's conduct, 3) the decision to substitute a day of suspension for a previously scheduled day of vacation where the person who made the change was unaware that the change was not desired by the complainant, 4) the decision to deny complainant admittance to the correctional institution grounds during the period of his suspension where respondent's action was consistent with existing policy. Sadlier v. DHSS, 87-0046, 0055-PC-ER, 3/30/89
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.