133.4 Cases

After the Complainant complained to the Respondent about the treatment of a Hispanic co-worker, the Respondent called the Complainant into a meeting where it presented her with a document to sign indicating that none of her complaints were valid and told her that she was an employee at will, who could be fired at any time. The Complainant reasonably believed that signing the document was a condition of continued employment. Her resignation under the circumstances was found to be a constructive discharge. Garza v. Koenig Concrete Corp. (LIRC, 10/30/23).

Not all behavior undertaken in the course of opposition to discriminatory conduct is protected. Where the Complainant was rude to the CEO, demanded that management employees be fired, and walked out of a meeting designed to address her complaints, the Respondent had a legitimate nondiscriminatory reason to discharge her. Hodge v. Brunner Wire Prods., Inc. (LIRC, 10/15/17), aff’d sub nom. Hodge v. LIRC (Juneau Co. Cir. Ct., 04/17/19).

The Respondent did not retaliate against the Complainant by denying him a severance package that was offered to him (and others, who accepted the terms) on the condition he waive his prior discrimination complaints filed against the Respondent, when the Complainant refused to agree to the waiver. The Complainant had no independent entitlement to the severance pay and the Respondent was within its rights to attach such conditions. Davis v. Time Warner Cable of Se. Wis. (LIRC, 08/16/13).

The Complainant need not show that the Respondent’s actions resulted in tangible harm in order to establish unlawful retaliation. The Respondent’s actions in telling the Complainant his chances for a promotion depended on withdrawal of his pending discrimination complaint amounted to unlawful retaliation. Valyo v. St. Mary’s Dean Ventures, Inc. (LIRC, 01/29/13).

The Complainant contended that she had opposed sexual harassment in the workplace when she told one of the Respondent’s owners that he needed to “watch it with these girls,” and that he was making them “uncomfortable.” This statement was too vague to put the Respondent on notice that the Complainant believed that he was engaging in any conduct that violated the law. Freeman v. Animal Motel (LIRC, 07/18/11).

The Complainant alleged that the Respondent retaliated against her after she went over the head of the store manager to complain about her Thanksgiving holiday schedule. This was not an activity which was protected by the Wisconsin Fair Employment Act. Keene v. Menard (LIRC, 05/08/08).

The Complainant failed to establish that the Respondent would reasonably have been aware that she was raising a claim of sexual harassment where she testified that she believed that she told a manager not to touch her anymore. She did not expressly state that she believed such touching (which consisted of hugging her and rubbing her shoulders and arms) constituted harassment, and it is not reasonably implicit from the evidence that the manager should have interpreted her statement that way. The Complainant also testified that she told the manager she did not feel comfortable with comments he had made about her body and asked him not to say that type of thing to her. (These comments consisted of his telling the Complainant that she was not fat and looked good when she jokingly referred to herself as “plump,” and a similar comment made while she was sharing her emotional distress regarding a personal issue and apparently willingly accepted the manager’s expressions of sympathy and empathy.) Given the context, the Complainant’s statement could have reasonably been interpreted by the manager as indicating that discussion of her weight made her uncomfortable, that discussion of weight or looks was unprofessional or inappropriate in the workplace, or that she no longer needed reassurances from him because she was no longer feeling distressed and emotional about her personal issues. As a result, the Complainant failed to sustain her burden of proving that she had engaged in a protected opposition activity. Engen v. Harbor Campus (LIRC, 02/22/08).

While the Complainant and her supervisor were on break together and were engaged in general conversation about their personal lives, the supervisor indicated that her children liked “jungle bunny” music. When the Complainant asked what she meant by that term, the supervisor replied, “hip hop and rap.” The following day the Complainant told the supervisor that she should find a better way to describe hip hop and rap music because the term “jungle bunny” was derogatory and some people might be offended by it. The supervisor indicated that she understood, and the incident was not mentioned again. The Complainant later filed a complaint alleging that she was discharged in retaliation for her opposition to a discriminatory practice. The Complainant was essentially alleging that the supervisor engaged in racial harassment when she made reference to “jungle bunny” music. Whether or not illegal harassment has occurred is evaluated on both (1) an objective basis (i.e., would a reasonable person find the conduct offensive and unwelcome?) and (2) a subjective basis (did the Complainant actually do so?). In this case, the Complainant conceded that she did not find the “jungle bunny” comment offensive. Although the result could have been different had another individual overheard the conversation between the Complainant and her supervisor and found it objectionable, that is not what occurred here. The Complainant failed to show that, at the time she engaged in the subject opposition activity by telling her supervisor she should find some other term for rap and hip hop music, she believed that discrimination in the form of racial harassment had occurred. As a result, although the supervisor’s comment could satisfy the objective reasonable person racial harassment test, it did not satisfy the subjective test. Therefore, the Complainant failed to prove that she engaged in a protected employment activity and, as a result, she failed to prove that she had been retaliated against in violation of the Wisconsin Fair Employment Act when she was discharged. Watson v. Once Upon A Child (LIRC, 06/29/07).

The decision of the Equal Rights Division that a chief of police and a management labor relations consultant acted with a retaliatory motive in discharging the Complainant was reversed. Neither the chief of police nor the management labor relations consultant had the authority to discharge a police officer. The Police and Fire Commission, which is a statutorily-granted body totally independent from the police department, is expressly granted the power to remove officers, according to state law. Since the Equal Rights Division found that the members of the Police and Fire Commission were not motivated by a retaliatory motive, the Complainant’s case should have been dismissed. City of River Falls Police Dep’t v. LIRC (Pierce Co. Cir. Ct., 01/30/86).

A complaint was properly dismissed for failure to state a claim for relief under the Wisconsin Fair Employment Act where the wrong which the complaint alleged had no significant connection to any employment relationship or employment opportunity for the Complainant. The Complainant, a former employee of a university, alleged that the University’s police department did not properly handle or investigate a criminal complaint which she had made. This had nothing to do with employment, but instead related to a service (police protection) provided by the University to the public at large. There was no reasonable basis to believe that the University’s failure to investigate the Complainant’s complaint about alleged criminal conduct by someone else would have any significant connection to any employment relationship or that it would impair the Complainant’s future employment opportunities. Garner v. UW-Milwaukee (LIRC, 02/10/06).

The retaliation provisions of the Wisconsin Fair Employment Act do not cover the Complainant’s claim that her request to have the Respondent accommodate her disability constituted a protected activity. Bjork v. DFI (Wis. Pers. Comm’n, 11/14/01).

Independent contractors are not protected by the Wisconsin Fair Employment Act. In this case, the relationship contemplated by the parties did not involve an employee-employer relationship “employment opportunity.” Therefore, the Respondent could not have retaliated against the Complainant for opposition to alleged discrimination in violation of the Act by refusing to enter into an independent contractor relationship unless the Complainant signed a release of his employment claims against the Respondent. Weier v. Heiden, Inc. (LIRC, 02/05/98).

Proof of unlawful retaliation for opposition must include proof that the employer actually has the perception that the conduct engaged in by the employee (which is claimed to have caused the retaliation) was an attempt by the employee to oppose alleged discrimination. It is not necessary for the employee to have been objectively “right” about a belief that an action opposed was prohibited discrimination, as long as some test of reasonableness and good faith is met. Where the Complainant made allegations of discrimination without believing in the truth of those allegations, the “opposition” is not protected under the Act. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).

Where the employee actually filed a charge and verbally notified the employer of that action, the employee’s actions are covered by the “participation” protection of the Act. It is not necessary that the Complainant prove even a reasonable good faith belief in the validity of the charges in the complaint. The participation protection extends even to those who have filed false and malicious charges. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).

The Complainant established a case of retaliation in terms and conditions of employment, where she showed that she rejected unwelcome sexual advances from her supervisor and her supervisor subsequently denied her previously approved job training and shift changes, harassed her about her expense report and disciplined her, all for no apparent good reason. Roden v. Federal Express (LIRC, 06/30/93).

The Complainant stated a claim for relief under the Wisconsin Fair Employment Act when she alleged that she was retaliated against by the Respondent when it filed a civil action in circuit court seeking to enforce a settlement agreement which the Complainant had previously refused to sign. Stillwell v. DILHR (Ct. App, Dist. II, unpublished opinion, 03/17/93).

The Respondent did not unlawfully retaliate against the Complainant because she had filed a complaint of discrimination with the Equal Rights Division. Although the Complainant’s hostility toward management was cited by the Respondent as a reason for its discharge decision, the reference was not to her actions in opposing perceived discrimination, but to her day-to-day resistance to directions by her immediate supervisors. This was not protected conduct on the Complainant’s part. Delapast v. Northwoods Beach Home Caring Homes (LIRC, 02/17/93).

The Complainant did not state a claim for relief for retaliation under the Wisconsin Fair Employment Act where she alleged that the Respondent retaliated against her for filing a prior charge of discrimination by asking her a series of personal and allegedly irrelevant questions during a deposition. It would be going beyond a fair liberal construction of the Wisconsin Fair Employment Act to hold that “terms, conditions or privileges of employment,” encompasses an employer’s line of questioning at a deposition taken in connection with the employee’s civil service appeal of a disciplinary action. Larsen v. DOC (Wis. Pers. Comm’n, 07/11/91).

A causal connection was established between the Complainant’s filing a complaint of discrimination and the Complainant’s discharge four months later because of: (1) the proximity in time of the two actions, (2) a supervisor’s comment that the Complainant probably would be discharged for the complaint, and (3) the Respondent’s attempt to settle the discrimination case at the time the Complainant was discharged. Frierson v. Ashea Indus. Sys. (LIRC, 04/06/90).

The Respondent discharged the Complainant because he had filed prior complaints of discrimination against the Respondent and because he opposed a practice he believed discriminatory. The Respondent’s stated reason for discharging the Complainant was that he knowingly allowed another employee to work while under the influence of alcohol. This asserted reason was found unworthy of credence because the Respondent did not discharge the Complainant until one month after the event in question and during that time the Equal Rights Division began its investigation of one of the Complainant’s discrimination complaints. Savage v. Stroh Container (LIRC, 09/20/89).

In a case in which it was concluded that the Complainants’ opposition to their employer’s practices was never known to the employer as being opposition based on perceived discrimination, even if it was assumed that the Complainants had in fact been retaliated against because of opposition to discriminatory practices, the extremely threatening and disruptive nature which their opposition took deprived it of protected status under the Act and the opposition became an independent and nondiscriminatory reason for their discharge. Keller v. City of Brodhead (LIRC, 04/29/87).

Statements by an employee’s supervisor that the employee would have been recalled to work after a job layoff had she not filed a complaint of discrimination against the employer are relevant to the issue of retaliation. Anderson v. Marion Plywood, Inc. (LIRC, 06/18/84).

The employee was discriminated against in retaliation for having assisted another employee with her charge of discrimination when his merit review and salary increase were delayed. Resch v. Stowe Woodward Indus. (LIRC, 04/16/82).

The employer retaliated against an employee by refusing to offer her a position because her sex discrimination complaint was pending before DILHR. Hayward Community Sch. v. DILHR (Hedin) (Sawyer Co. Cir. Ct., 05/04/82).

The employee presented a prima facie case of retaliation by showing that the employee’s decision not to renew his deputy card was made at the same time his discrimination complaint was pending. The allegations of poor performance advanced by the employer were pretextual since he had served six years without serious incident. Algozino v. Waupaca County (LIRC, 03/24/81).

Where an employee was terminated for opposing her employer’s discriminatory policy regarding temporary disability leave for pregnancy and for supporting a fellow employee’s challenge of that policy, her discharge was retaliation. Berg v. La Crosse Cooler (LIRC, 03/21/81).

The employee was discriminated against in retaliation for having filed a race discrimination complaint when she was harassed and intimidated by supervisory personnel and was denied a temporary assignment to a better paying position. Royston v. Geuder, Paeschke & Frey (LIRC, 10/09/79).

Where a layoff occurred after DILHR had issued an initial determination of probable cause, an inference was raised that the layoff was retaliatory. However, the employer overcame that inference by showing: 1) a general decline in business, 2) a practice of not replacing employees who quit or retired, and 3) execution of the layoff in accordance with the contract. Allison v. Jensen’s Cleaners (DILHR, 06/14/74).