133.23 Establishing a causal connection between the oppositional activity and the adverse employment action

The Complainant’s oppositional activity, the filing and pursuit of previous Equal Rights Division complaints against the employer, took place a few months before the decision was made not to promote her. The Complainant based her retaliation claim primarily on proximity in time, but that argument was weakened by the fact that the timeline for filling the position the Complainant sought was entirely unrelated to the Complainant’s oppositional activity. The employer articulated non-retaliatory reasons for choosing another candidate over the Complainant, namely, that the sole decision maker believed that the other candidate’s fundraising experience was superior, and that it was reported to the decision-maker that the other candidate had better references. The Complainant was unable to show these reasons to be pretextual. Heart v. Univ. of Wis. - Superior (LIRC, 02/28/20).

Evidence of tardiness and no-shows emerged as a non-discriminatory reason for the Complainant’s discipline and discharge during the Complainant’s case. The Complainant made a sufficient showing of a causal connection, however, by presenting evidence of close timing between her complaints of sexual harassment and her discipline and subsequent termination for poor attendance, and by plausibly denying that she was absent without notice or late to work immediately prior to her discharge. The employer was not present at hearing to rebut the Complainant’s evidence regarding her attendance. Howard v. Lena’s Food Mkt. (LIRC, 01/30/14).

Although proximity in time may create an inference of a causal connection, it is not sufficient by itself to establish such a connection. This is true whether the issue is one of probable cause or the merits of a charge. Deal v. D & S Mfg. (LIRC, 06/20/08).

Since intent is a pertinent and necessary inquiry in a discrimination or retaliation case, the question of whether a Respondent’s asserted non-retaliatory reason is objectively correct can be considered irrelevant if it appears that the Respondent genuinely believed it to be true. Engen v. Harbor Campus (LIRC, 02/22/08).

A causal connection between oppositional activity and an adverse employment action may be inferred from the proximity in time between the protected action and the alleged retaliation. However, a Complainant’s establishment of a statutorily protected expression, and adverse action by the Respondent, and the existence of a causal connection between the protected expression and the adverse action only presents a rebuttable presumption that the Act has been violated. A Respondent may rebut this presumption by articulating a legitimate, non-retaliatory reason for its actions. Thus, while closeness in time may indicate the existence of a causal connection between protected expression and an adverse action, this does not establish unlawful discrimination in and of itself. Potts v. Magna Publications (LIRC, 02/27/01).

The timing of a complaint and an adverse employment action against the employee does not in itself establish retaliation. No retaliation was found where there was substantial evidence that the employer had a legitimate, non-discriminatory reason for disciplining the Complainant. Kannenberg v. LIRC, 213 Wis. 2d 373, 571 N.W.2d 165 (Ct. App. 1997).

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).

A causal connection between a protected activity and an adverse action can be inferred from a close proximity in time between the protected activity and the adverse action. Horton v. Hopkins Chem. Co. (LIRC, 06/08/92), aff’d, Dane Co. Cir. Ct., 04/28/93.

A causal connection between oppositional activity and an adverse employment action may be inferred from the proximity in time between the protected action and the alleged retaliation. Alternatively, the Complainant can prove causation by providing direct evidence of retaliatory motive. Frierson v. Ashea Indus. Sys. (LIRC, 04/06/90).

Where several months elapsed between the filing of a third party’s complaint of discrimination and the issuance of an initial determination which listed the Complainant was a person interviewed, and where more than four weeks had elapsed between that initial determination being issued and the discharge of the Complainant alleging retaliation, all of those facts negated the inference that the Complainant was discharged in retaliation for being a person interviewed for a pending discrimination case, because the events did not follow closely in time. Wausau Hosp. Ctr. v. LIRC (Marathon Co. Cir. Ct., 11/27/85).

The discharge of an employee followed her protests about discrimination within such a short period of time (four to five months) that retaliatory motivation could reasonably be inferred. Weir v. A.E. Moore (LIRC, 02/20/80).