131 MILITARY SERVICE

[Ed. note: In 2008, the Wisconsin Fair Employment Act was amended to substitute the term “military service” for the phrase “membership in the national guard, state defense force or any other reserve component of the military forces of the United States, or this state.”]

The Complainant did not contend that that the Respondent discriminated again him based upon his status as a member of the National Guard or because of his obligation to perform military service. Rather, the Complainant contended that the Respondent discriminated against him once it learned that he had not been deployed to Iraq and was released from active duty. It is not clear that these contentions, if proven, would state a claim under the Act. However, even if the Act's protections do extend to the status of not being deployed or being removed from active duty, the evidence would not support a finding of discrimination. Besaw v. Winnebago Cnty. Landfill (LIRC, 11/30/12).

The Respondent required certain documentation from the Complainant (his annual schedule of military training dates) in order for the Complainant to take two days of military leave. The Complainant provided that documentation and then took the leave. The action taken by the Respondent did not rise to the level of an adverse personnel action. The complaint, which alleged that the Respondent had discriminated against the Complainant on the basis of membership in the National Guard or military reserve, was appropriately dismissed. Cunningham v. DOC (Wis. Pers. Comm’n, 07/20/99).

Although the Wisconsin Fair Employment Act prohibits an employer from discriminating against an individual based upon his or her status as a member of a reserve component of the military forces of the United States, there is nothing requiring the Respondent to consider the Complainant’s military service record in deciding whether to eliminate his job or terminate his employment. Kolberg v. Kearney & Trecker Corp. (LIRC, 06/19/96).

There was no basis for any suspicion that the Respondent had any preconceptions about or bore any animus towards the Complainant because of her service with the Army National Guard. There was nothing wrong in the Respondent’s director of nursing making a comment to the effect that most of the Complainant’s experience in nursing had been in the Army. Nor was it improper, when the Complainant commented on one occasion to the effect that when she was in the Army they did something a certain way, for the Respondent’s director of nursing to respond that that way of doing things did not fit in with the Respondent’s way of doing business. Titus v. Oakwood Lutheran Home Ass’n (LIRC, 05/24/94).

The Complainant’s allegation that he was displaced from a civil service position by a returnee from military leave and forced to accept a transfer to another institution failed to state a claim for relief under the Wisconsin Fair Employment Act. The intent of including Guard or Reserve membership as a protected status under the Wisconsin Fair Employment Act was to protect individuals from being discriminated against because of their membership in the Guard or Reserve, not to prohibit the State as an employer from complying with a long-standing state law (sec. 230.32, Stats.) requiring the job restoration of employees returning from military leave. Gandt v. DOC (Wis. Pers. Comm’n, 01/08/92).