133.2 Standard of proof

Retaliation, like other claims of allegedly discriminatory treatment, is appropriately analyzed utilizing the general framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Initially, the Complainant must establish prima facie proof of retaliation by showing that: (1) he engaged in statutorily-rotected activity; (2) the Respondent took an adverse employment action; and (3) a causal connection existed between the two. If a prima facie case has been established, the Respondent must then articulate a legitimate, non-discriminatory reason for its actions. If the Respondent carries its burden of production, the Complainant then must show that the Respondent’s asserted reasons were in fact a pretext for retaliatory conduct. Monroe v. Birdseye Foods (LIRC, 03/31/10).

A claim of retaliation may be proven using either the direct or the indirect method of proof. Under the direct method of proof in a retaliation claim, a Complainant must show that he: (1) engaged in statutorily-rotected activity; (2) suffered an adverse action taken by the employer; and (3) a causal connection exists between the two. Under the direct method, there are two types of permissible evidence: (1) direct evidence (i.e., evidence that does not require drawing an inference from evidence to the proposition that it is offered to establish); and (2) circumstantial evidence (i.e., evidence which does require drawing inferences). Circumstantial evidence consists of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence, none conclusive in itself but together composing a convincing mosaic of discrimination against the Complainant. To prove a claim of retaliation under the indirect method, the Complainant must establish a prima facie case of retaliation by showing that he: (1) engaged in statutorily-protected activity; (2) met the employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly-situated employee who did not engage in statutorily-protected activity. A similarly-situated employee is one who is directly comparable to the Complainant in all material respects. If the Complainant establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action. If the employer meets its burden, the burden shifts back to the Complainant to demonstrate that the employer’s reason is pre-textual. If the Complainant has produced evidence that he was fired because of his protected activity, this is actual evidence of unlawful conduct (i.e., evidence that the firing was in fact retaliation for the Complainant’s complaining about discrimination). Gunty v. City of Waukesha (LIRC, 03/31/10).

The claim of retaliation, like other discrimination claims, may be proven using either the direct or the indirect method of proof. Under the direct method of proof in a retaliation claim, a Complainant must show that he: (1) engaged in statutorily-protected activities; (2) suffered an adverse action taken by the employer; and (3) a causal connection exists between the two. Under the direct method, there are two types of permissible evidence: (1) direct evidence, i.e., evidence that does not require drawing an inference from evidence to the proposition that it is offered to establish; and (2) circumstantial evidence, i.e., evidence which does require drawing inferences. Under the first type of direct evidence, the evidence essentially requires that the decision-maker admitted that his actions were based upon the prohibited animus. The circumstantial evidence type of case consists of ambiguous statements, suspicious timing, discrimination against other employees, and other types of evidence which may not be conclusive in themselves but which together compose a convincing mosaic of discrimination against the Complainant. Gephart v. DOC (LIRC, 11/18/09).

To prove a claim of retaliation under the indirect method of proof, the Complainant must establish a prima facie case of retaliation by showing that he: (1) engaged in statutorily-protected activity; (2) met the employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than a similarly-situated employee who did not engage in statutorily-protected activity. If the Complainant establishes a prima facie case, the burden of production shifts to the employer to present evidence of a non-discriminatory reason for its employment action. If the employer meets its burden, the burden shifts back to the Complainant to demonstrate that the employer’s reason was pre-textual. Gephart v. DOC (LIRC, 11/18/09).