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134.2 Standard of proof

The Wisconsin Fair Employment Act prohibits the discharge of an employee because he has filed a wage claim under sec. 109.03, Stats., or because he has attempted to enforce any right under that statute or because the employer believes that he may do so. In those cases where an employee has not actually filed a wage claim or made a specific threat to do so, the question is whether the employee has given some indication that he intends to file a wage claim and whether the record establishes that the employer believed that the employee intended to take such action. In deciding that question, the decision-maker will consider not only the employee’s words, but the entire context of the interactions between the employee and the employer. Brockmann v. Abacus Bertz Ins. (LIRC, 05/31/12).

The Respondent’s motivation is the ultimate issue in a retaliation case. In order to establish a prima facie case of retaliation, the Complainant must show that: (1) he opposed an unlawful employment practice, (2) he suffered an adverse employment action, and (3) there was a causal connection between the opposition and the adverse action. The Respondent can rebut the prima facie case by showing a legitimate non-retaliatory reason for the adverse action. The Complainant can prevail by showing that the proffered reason is merely a pretext for retaliatory conduct. In order to establish a causal connection, it must be shown that the alleged retaliator was aware of, or had reason to be aware of, the Complainant’s protected activity. The Complainant in this case failed to show that the Respondent had any reason to be aware of the wage claims the Complainant filed prior to the time that she became employed by the Respondent. Smith v. The Terrace at St. Francis (LIRC, 12/08/06).

A causal connection between a Complainant’s contacting the Labor Standards Bureau about her right to overtime pay and her discharge may be inferred from the close proximity in time of those events. Hickman v. Milwaukee Immediate Care Ctr. (LIRC, 02/16/00), aff’d sub nom. Milwaukee Immediate Care Ctr. v. LIRC (Milwaukee Co. Cir. Ct., 11/02/00).