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554.1 Generally

Filing a complaint of whistleblower retaliation is itself a protected activity under the Whistleblower Law. Therefore, a disciplinary action threatened or imposed after the Respondent learned of the Complainant’s charge of whistleblower retaliation could constitute illegal retaliation under the Whistleblower Law. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Whistleblower Law does not include protection against retaliation by coworkers. In this case, a correctional officer's attempt to persuade an inmate to submit a concocted report about the Complainant (a food service worker) and other actions by correctional officers were not carried out by the appointing authority or an agent of the appointing authority as required in sec. 230.83(1), Stats. There was no persuasive evidence from which it would be reasonable to conclude that the Respondent fostered or condoned the officers’ actions to such a degree that the officers should be considered as agents of the Respondent. Bentz v. DOC (Wis. Pers. Comm'n, 03/11/98).

In determining whether a series of incidents constituted “verbal or physical harassment” within the definition of disciplinary action, the possible cumulative impact of the incidents on the employee may be considered. Seay v. DER & UW-Madison (Wis. Pers. Comm'n, 03/31/94); aff’d sub nom. Seay v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 03/03/95).

The Complainant failed to establish a prima facie case of whistleblower retaliation as to events occurring before his alleged retaliators were aware of his protected disclosures. Seay v. DER & UW-Madison, (Wis. Pers. Comm'n, 03/31/94); aff’d sub nom. Seay v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 03/03/95).

An employer will not be held accountable for acts of alleged retaliation when the Complainant was given the opportunity to provide information relating to the allegations to representatives of the employer but generally declined to do so. Seay v. DER & UW-Madison (Wis. Pers. Comm'n, 03/31/94); aff’d sub nom. Seay v. Wis. Pers. Comm'n, (Dane Co. Cir. Ct., 03/03/95).

The Complainant failed to establish a prima facie case of retaliation where the person who decided not to rescind the Complainant’s resignation was not aware of the Complainant’s protected activity. Radtke v. UW-Madison (Wis. Pers. Comm'n, 11/22/94).

The Complainants alleged that the Respondents’ settlement offer constituted a threat to terminate their protective occupation status and constituted a threat of retaliation under the Whistleblower Law. The Respondents contended in support of their motion to dismiss for failure to state a claim that its action was not prohibited by the Whistleblower Law. Since the offer presented two options (depending on whether or not the offer was accepted), both of which were penalties, the offer can be seen as a vehicle for retaliation, and covered by the Whistleblower Law. Pierce & Sheldon v. Wis. Lottery & DER (Wis. Pers. Comm'n, 10/16/92).

The Personnel Commission’s authority under the Whistleblower Law does not extend to an individual outside the employing agency who may have played some precipitating role in a disciplinary action, but who has no legally recognized role as an appointing authority or employer. The Complainant (a Correctional Officer 3 employed by the Department of Corrections and assigned to the security ward at the UW Hospital and Clinic) alleged that he had been reassigned to another facility and harassed as a result of complaints of sexual harassment made by UW Hospital and Clinic employees. UW-Madison was dismissed as a party. Martin v. DOC & UW-Madison (Wis. Pers. Comm'n, 01/11/91).

While the issue of just cause can be an appropriate consideration at the analytical stage of determining pretext in a claim arising from the imposition of discipline, the ultimate issue in whistleblower cases is whether retaliation occurred, not whether there was just cause for the imposition of discipline. Sadlier v. DHSS (Wis. Pers. Comm'n, 03/30/89).

A settlement offer made in the context of an ongoing administrative review of an employment decision did not fall within the scope of the prohibition against retaliation because the conditions of settlement required acceptance by the Complainant before they could go into effect. Hollinger v. UW-Milwaukee (Wis. Pers. Comm'n, 11/21/85).