Archibald v. All Green Corp. (LIRC, 06/04/18). "/> ER Decision Digest - 133.21 Prima facie case Skip main navigation

Outdated or Unsupported Browser Detected
DWD's website uses the latest technology. This makes our site faster and easier to use across all devices. Unfortunatley, your browser is out of date and is not supported. An update is not required, but it is strongly recommended to improve your browsing experience. To update Internet Explorer to Microsoft Edge visit their website.

133.21 Prima facie case

A prima facie case of retaliation may be established by showing that: (1) the Complainant engaged in statutorily protected activity; (2) the Complainant suffered an adverse action; and (3) there is a causal link between the protected activity and the adverse action. If the Complainant establishes a prima facie case of retaliation, the Respondent may rebut the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse action. Should the Respondent meet its burden, the Complainant then has the burden of proving that the Respondent’s proffered reasons are merely a pretext for discriminatory conduct. Archibald v. All Green Corp. (LIRC, 06/04/18).

The Respondent rebutted the Complainant’s prima facie case of retaliatory discharge by producing evidence that the Complainant’s poor attendance was the reason for discharge. The Complainant, who bore the burden of showing that the Respondent’s proffered reason was pre-textual, was unable to do so. The reason advanced by the Respondent had a basis in fact, provided a sufficient motivation for discharge, and appeared to be the actual motivation for discharge. The Complainant’s tardiness was substantial; on nine occasions in two months she was late by 20 minutes or more, four of which were during her last two weeks of employment. Godfrey v. TK Oshkosh, LLC (LIRC, 01/16/14).

In a claim of retaliation under the Wisconsin Fair Employment Act, a Complainant must show that a reasonable individual would have found the challenged action to be adverse. That is, the action might well have dissuaded a reasonable individual from opposing any discriminatory act under the Act or from making a complaint, testifying or assisting in any proceeding under the Act. There is no bright-line rule. Whether alleged discriminatory conduct is sufficiently adverse can only be determined upon careful examination of the facts and circumstances presented in each case. Krushek v. Trane Co. (LIRC, 12/23/10).

Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions would form the basis of a discrimination suit. In this case, the Complainant failed to establish that a memo that was sent to the security director by her lieutenant constituted an adverse employment action. The Complainant alleged that the memo falsely accused her of being the subject of a large number of inmate complaints and of being unprofessional and demonstrating a lack of tact when working with inmates. The evidence failed to show that the memo cause the security director to form an unfavorable impression of the Complainant. The memo was an internal memo that was not made a part of the Complainant’s personnel file. The memo had absolutely no effect on the Complainant’s terms or conditions of employment. Gephart v. DOC (LIRC, 11/18/09).

To establish a prima facie case in the retaliation context, a causal connection must be shown between the Complainant’s protected activity and an adverse employment action. In the context of a retaliation claim, sec. 111.322(3), Stats., makes it an act of employment discrimination “[to] discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice. . . .” Sec. 111.322(1), Stats., makes it an act of employment discrimination to “refuse to hire, employ, admit or license any individual, to bar or terminate from employment. . .or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment.” If the subject action is not one of those specified in these statutory sections, the applicable standard is whether the action had any concrete, tangible effect on the Complainant’s employment status. A material adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Warren v. DHFS (Wis. Pers. Comm’n, 02/09/01).

In order to prevail on a claim of retaliation under the Wisconsin Fair Employment Act, a Complainant is required to show that he was subject to a cognizable adverse employment action. A material adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion, a material loss of benefits, or other indices that might be unique to a particular situation. Vaughan v. UW (Wis. Pers. Comm’n, 09/07/00).

A prima facie of retaliation may be established by showing: (1) that the Complainant engaged in statutorily protected expression (i.e., the Complainant opposed a practice made unlawful under the Act, or made a complaint under the Act); (2) that the Complainant suffered an adverse action by the Respondent; and (3) that there is a causal link between the protected expression and the adverse action. If the Complainant establishes a prima facie case of retaliation, the Respondent may rebut the prima facie case by articulating a legitimate, non-discriminatory reason for the adverse action. Finally, should the Respondent meet its burden, the Complainant then has the burden of proving that the Respondent’s proffered reasons are merely a pretext for discriminatory conduct. Sarazin v. W & G Transport (LIRC, 03/09/99).

In a retaliation case the employer’s motivation is the ultimate issue. In order to establish a prima facie case of retaliation, the Complainant must show (1) that she was engaged in statutorily protected expression; (2) that she suffered an adverse action taken by the employer, and (3) that there was a causal link between the protected expression and the adverse action. The “causal connection” consists of evidence showing that a retaliatory motive played a part in the alleged adverse employment action. Callaway v. Madison Metro. Sch. Dist. (LIRC, 11/27/96).

To establish unlawful retaliation for opposition, an employee must show (1) that he or she engaged in statutorily protected opposition, (2) that the employer took an adverse action against the employee, and (3) that a causal connection exists between these two things. The causal connection can be established by showing that the adverse employment action followed within a fairly short period of time after the protected opposition activity. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).

In a retaliation case, the employer’s motivation is the ultimate issue. In order to establish a prima facie case of retaliation, the employee must show (1) that the employee opposed an unlawful employment practice, (2) that the employee suffered an adverse action by the employer, and (3) that there was a causal link between the opposition and the adverse action. The employer can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action, and the employee can prevail by showing that the reason is a pretext. Roden v. Federal Express (LIRC, 06/30/93); Alexander v. Aldridge, Inc. (LIRC, 10/21/91); Frierson v. Ashea Indus. Sys. (LIRC, 04/06/90).

In order to show a prima facie case of retaliation, a Complainant must show that: (1) the Complainant engaged in a statutorily protected expression; (2) the Complainant suffered an adverse action by the employer; and (3) a causal link exists between the protected expression and the adverse action. The presumption created then may be rebutted by the Respondent’s articulation of a legitimate, non-retaliatory reason for its action. If the Respondent meets that burden of production, the Complainant must present evidence that the proffered reason was pre-textual. Acharya v. Carroll, 152 Wis. 2d 330, 448 N.W.2d 275 (Ct. App. 1989).

The Complainant may establish a prima facie case of retaliation by showing that she engaged in protected activity, that she was thereafter subjected to an adverse employment action, and that a causal link exists between the two. Chandler v. UW-La Crosse (Wis. Pers. Comm’n, 08/24/89).

An inference of retaliation may be established by showing that a Complainant engaged in protected activity, was subjected to an adverse employment decision, and that there is a causal connection between these two facts. Jensen v. F.W. Woolworth Co. (LIRC, 05/22/87).

A Complainant who was not rehired established a prima facie case by showing that she had filed a discrimination complaint concerning her layoff and that the complaint was pending at the time of her failure to be recalled. Ealey v. Wis. Brick & Block (LIRC, 07/19/83), aff’d sub nom. Ealey v. LIRC (Dane Co. Cir. Ct., 08/09/84).

A prima facie case of retaliatory refusal to rehire is established by showing that the employee engaged in a protected activity, that the employer was aware of that activity, and that the employer thereafter refused to rehire the employee. McMillan v. LIRC (Greyhound Lines) (Ct. App., Dist. IV, unpublished opinion, 05/02/80).

It was not necessary for a discharged employee to show that a libelous letter of reference resulted in harm to prevail on her charge that it was sent in retaliation for her discrimination complaint. Pederson v. LIRC (Cepek Constr.) (Dane Co. Cir. Ct., 09/11/78).