554.2 Disciplinary action

At some point, maintaining an employee on a leave of absence, even a leave with pay, may reach the level of a disciplinary action, i.e., it may result in a loss of position or other consequences commonly associated with job discipline. Rykal v. DATCP (Wis. Pers. Comm'n, 12/20/01).

The complaint was dismissed for failure to state a claim upon which relief could be granted where the only disciplinary actions alleged in the complaint were that the Respondent established a policy requiring that personal guests of employees were required to remain in the reception area until they were escorted into the office by the employee, and where program assistants in the office presented flowers to certain probation and parole agents in celebration of “agent week,” but did not present any flowers to the Complainant. These actions do not constitute disciplinary actions within the meaning of the whistleblower retaliation statute. Reed v. DOC (Wis. Pers. Comm'n, 11/15/00).

The introductory clause to sec. 230.80(2), Stats., states that “’disciplinary action’ means any action taken with respect to an employee which has the effect, in whole or in part, of a penalty....” The introductory clause clearly states that the action complained of must have the effect, at least in part, of a penalty. The examples of actions having the effect of a penalty are contained in subparagraphs (a) through (d) of the statute but are not intended to be an all-inclusive list. The Personnel Commission has held that the common understanding of a penalty in connection with a job-related disciplinary action does not cover every potentially prejudicial effect on job satisfaction or ability to perform one’s job efficiently. Stanley v. DOC (Wis. Pers. Comm'n, 08/25/99).

The Respondent’s alleged conduct of removing the Complainant from his role as a faculty advisor to a student organization related to the “removal of any duty” under sec. 230.80(2), Stats., and fell within the scope of a disciplinary action. The Respondent’s motion to dismiss was denied as to that allegation. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent refused to pay him for working with a visiting professor, it was comparable to an allegation that the Complainant’s pay had been reduced, thus having the effect of a penalty within the scope of a disciplinary action. The Respondent’s motion to dismiss was denied as to that allegation. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant was a faculty member, his whistleblower allegation that the Respondent had threatened to remove his endowed chair fit within the scope of a disciplinary action. The Respondent’s motion to dismiss was denied as to that allegation. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent did not promptly respond to his proposal that an artist serve as “artist in residence for a few days,” the allegation did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent did not adequately respond to efforts to have several students from a foreign university attend UW-Whitewater, the alleged conduct did not rise to the level of a disciplinary action because it resulted in no loss of pay, position, upgrade or transfer or in any other consequences commonly associated with job discipline. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Complainant’s whistleblower allegation that campus administrators tried to convince a third party to commence a civil action against the Complainant was not a consequence commonly associated with job discipline, so it did not satisfy the requirement of disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s alleged action of reminding the Complainant that all guest editorials had to be coordinated through the administration did not rise to the level of a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Alleged actions taken by the Complainant’s superiors (or at their direction) to steal a fax sent to Complainant, to flatten the tires on Complainant’s car, to steal his cell phone from his office, to leave anonymous and derogatory notes in the Complainant’s office, to vandalize his car, to prevent the Complainant from retrieving his personal belongings, and to take a bottle of copy machine toner that the Complainant had purchased, all allegedly in response to his protected activities, constituted “physical harassment” under sec. 230.80(2)(a), Stats. The Respondent’s motion to dismiss was denied as to those allegations. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s alleged action of responding inadequately to the Complainant’s request relating to a public expenditure was not a disciplinary action where the Complainant’s request was made “as a taxpayer.” The allegation did not involve the employment relationship. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s alleged statement that personnel files and records of individual faculty members were public documents and were available for inspection upon demand was not a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s alleged action of making a notation on a document did not rise to the level of a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s alleged action of completely barring the Complainant from using the university’s mail system rose to the level of a disciplinary action, assuming the Complainant alleged it had a drastic effect on his ability to perform his responsibilities as a member of the faculty and that it was taken in response to the Complainant’s protected activities. The Respondent’s motion to dismiss was denied as to that allegation. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s alleged action of asking the Complainant to clarify whether the Complainant’s activities in Cuba were taken as a private citizen or as a representative of the Respondent was not a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s alleged activity in the nature of a public criticism by an employer of an employee’s or a group of employees’ approach to a controversial issue is outside the scope of verbal or physical harassment. Administration officials were quoted in two newspaper articles relating to the Complainant, a faculty member. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant was a member of the faculty, the Respondent’s alleged action of temporarily suspending the Complainant’s photocopying privileges at the campus library until the Respondent reviewed the Complainant’s justification for his copying requests was not a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant was a faculty member, the Respondent’s alleged action of failing to support or approve the Complainant’s request for a one-year sabbatical rose to the level of a disciplinary action. The Respondent’s motion to dismiss was denied as to this allegation. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant was a faculty member, the Respondent’s alleged action of removing the Complainant’s printing and labeling privileges rose to the level of a disciplinary action, assuming the Complainant alleged it had a drastic effect on his ability to perform his responsibilities and assuming it was taken in response to the Complainant’s protected activities. The Respondent’s motion to dismiss was denied as to this allegation. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

A memo informing the Complainant that he was required to obtain approval from the administration for any expenditure request was not a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The Respondent’s action of merely preventing the Complainant from using the employer’s mail service for two specific memos did not rise to the level of a penalty or disciplinary action as listed in sec. 230.80(2), Stats. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

The action of the dean of the college not to include the Complainant in a list of eight individuals who were congratulated in a memo for receiving grants or donations was not a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98). The possibility that the Respondent might forward the name of a candidate for the Complainant, a faculty member, to consider for hire as an LTE was neither a disciplinary action nor a threat thereof. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Filing a complaint with an agency’s EEO office and initiating an investigation of that complaint are not disciplinary actions. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the Complainant, a faculty member, alleged that the Respondent had removed his secretary, thereby denying him secretarial services, the Respondent’s alleged conduct qualified as a disciplinary action. The Respondent’s motion to dismiss was denied as to this allegation. However, the Complainant’s allegation that the Respondent removed a particular photocopy machine, but continued to provide him with photocopying options, was not considered a disciplinary action. Benson v. UW-Whitewater (Wis. Pers. Comm'n, 08/26/98).

Where the only actual change in duties or responsibilities that could reasonably be implied related to the Complainant having less independence in setting the schedule for his audits of fire departments, it was not a sufficiently significant change to qualify as a “removal of duties” or a “reassignment” within the meaning of sec. 230.80(2), Stats. Bruflat v. Dep't of Commerce (Wis. Pers. Comm'n, 07/07/98).

The Complainant stated that all employees in his work unit had been granted home stations in 1994, but that he did not make the move to his home area of Hayward at that time for personal reasons. Approximately two years later, the Complainant requested relocation to Hayward. The Complainant’s allegation that the Respondent denied his request was sufficiently akin to a transfer or a reassignment (or to their denial) to qualify as a disciplinary action within the meaning of sec. 230.80(2), Wis. Stats. Bruflat v. Dep't of Commerce (Wis. Pers. Comm'n, 07/07/98).

A delay in processing a travel voucher does not have the permanence or the long-term impact of penalties cited in sec. 230.80(2), Stats. as disciplinary actions. Bruflat v. Dep't of Commerce (Wis. Pers. Comm'n, 07/07/98).

Where it was undisputed that a decision had been made to change the duties and responsibilities of the Complainant’s position, such an action could be equivalent to removing a duty from a position or reassignment so as to constitute a disciplinary action within the meaning of sec. 230.80(2), Stats. Bruflat v. Dep't of Commerce (Wis. Pers. Comm'n, 07/07/98).

Two alleged statements, standing alone, were not sufficiently severe or pervasive to support a conclusion that the conditions of the Complainant’s employment were affected to the extent required for a finding of verbal harassment within the meaning of sec. 230.80(2)(a), Stats. The Complainant alleged that his manager asked, “How long are we going to keep choking this chicken, Dave?” and then repeated the question, using hand gestures to mimic masturbation. Even when considered with the Complainant’s remaining allegations of verbal harassment, the cumulative effect of the allegations was insufficient to support a finding that the requirements of sec. 230.80(2)(a), Stats. had been met. Bruflat v. Dep't of Commerce (Wis. Pers. Comm'n, 07/07/98).

A statement to the Complainant (a food service worker) by a supervisor of officers in a correctional institution that it was not a good idea to “tick off” correctional officers, did not have a substantial or potentially substantial negative effect on the Complainant. Therefore, it was not a “disciplinary action” within the meaning of the Whistleblower Law. Bentz v. DOC (Wis. Pers. Comm'n, 03/11/98).

An increased workload due to a vacancy in a subordinate position does not rise to the level of a “penalty” under the Whistleblower Law. Perrien v. DOC (Wis. Pers. Comm'n, 07/02/97).

Moving the Complainant to a different work station constituted a penalty within the meaning of the whistleblower statute where the Complainant had communicated to the Respondent that the association of the new work station with a fellow employee to whom she had developed an aversion could significantly affect her health and her mental and physical ability to function in her job. King v. DOC (Wis. Pers. Comm'n, 03/22/96).

To be a “disciplinary action,” the employer’s act must, at the very least, be related to the Complainant’s employment. Allegedly retaliatory actions taken against the Complainant’s attorney, in public statements made by a supervisor which were not related specifically to the Complainant or to his employment, did not constitute “disciplinary action.” However, an alleged failure by the Respondent to promptly investigate allegations of sexual harassment, alleged reductions in the Complainant’s responsibilities and alleged negative aspects of a performance evaluation do constitute “disciplinary action.” Getsinger v. UW-Stevens Point (Wis. Pers. Comm'n, 04/30/93).

Actions which occurred after the termination of the Complainant’s employment relationship with the Respondent could not, as a matter of law, constitute “disciplinary action” pursuant to sec. 230.80(2)(a), Stats., which refers to “action taken with respect to an employee.” Kuri v. UW-Stevens Point (Wis. Pers. Comm'n, 04/30/93).

To meet the definition of “disciplinary action,” the employer’s act must be related to the Complainant’s employment status. The law does not cover harassment of an employee’s attorney. Kuri v. UW-Stevens Point (Wis. Pers. Comm'n, 04/30/93).

The methods used by the Respondent in carrying out an investigation of the Complainant’s work performance and the decision to permit a union official to carry out an investigation of the Complainant’s conduct were not “disciplinary actions” as that term is used in the Whistleblower Law. However, an oral reprimand, the denial of a wage increase, and the denial of a promotion fall within the definition. Flannery v. DOC (Wis. Pers. Comm'n, 07/25/91).

The common understanding of a penalty in connection with a job-related disciplinary action does not stretch to cover every potentially prejudicial effect on job satisfaction or ability to perform one’s job efficiently. The Complainant was not retaliated against where his disclosure resulted in no loss of pay, position, upgrade or transfer or other consequences commonly associated with job discipline. Vander Zanden v. DILHR (Outagamie Co. Cir. Ct., 05/25/89).

The following actions did not constitute “disciplinary actions” within the meaning of sec. 230.80(2), Stats.: (1) The denial of a request to publish a thank you note in a correctional institution’s daily bulletin; (2) the denial of pay status for one-fourth of an hour during an investigative meeting where the denial was subsequently reversed; and (3) a decision to investigate an incident which could have led to the imposition of discipline against the Complainant. (Seven other actions were found to fall within the definition of “disciplinary actions.”) Sadlier v. DHSS (Wis. Pers. Comm'n, 03/30/89).

A requirement that the Complainant undergo a psychiatric evaluation was not a disciplinary action within the meaning of sec. 230.80(2), Stats., where the evaluation could have been completed within the period of a ten-day suspension imposed against the Complainant, and the requirement did not create a stigma for the Complainant because it was a matter of record that the Complainant had previously been given a leave of absence to enable him to undergo psychiatric treatment. The ten-day suspension and the involuntary leave without pay (which resulted from the Respondent’s failure to return the Complainant to work status after the expiration of the suspension) were found to be disciplinary actions. Morkin v. UW-Madison (Wis. Pers. Comm'n, 11/23/88); aff’d sub nom. Morkin v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 09/27/89).

Only those personnel actions which have a substantial or potentially substantial negative impact on an employee fall within the definition of “disciplinary action” found in sec. 230.80(2), Stats. Limitations placed on the Complainant’s contacts with a certain office did not constitute a disciplinary action where the duties and responsibilities of the Complainant’s position did not necessitate frequent contacts with that office and the limitations re-routed, but did not prevent, those contacts. Vander Zanden v. DILHR (Wis. Pers. Comm'n, 08/24/88); aff’d by Outagamie Co. Cir. Ct., 05/25/89.