554.3 Presumption of retaliation

Where the Complainant’s disclosure was investigated and the Respondent ultimately disciplined an employee because of it, the employer determined that the protected disclosure merited further investigation. Therefore, the Complainant was entitled to the presumption of retaliation with respect to the Respondent’s decision to discharge her, where the discharge was within two years of when she made her protected disclosure. Bentz v. DOC (Wis. Pers. Comm'n, 03/11/98).

Where the protected disclosure consisted of a union grievance relating to the presence of cockroaches in campus buildings, and where the Respondent processed the grievance as it was required to do under the applicable collective bargaining agreement, there was no showing that the Respondent concluded that investigation of the health and safety issue presented in the grievance was merited, or that such an investigation occurred. Therefore, the Complainant failed to establish the prerequisite for presuming, under sec. 230.85(6), Stats., that a subsequent suspension constituted whistleblower retaliation. Williams v. UW-Madison (Wis. Pers. Comm'n, 09/17/96); aff’d sub nom. Williams v. Wis. Pers. Comm'n (Dane Co. Cir. Ct., 11/19/97).

The statutory presumption of retaliation established in sec. 230.85(6), Stats., was inapplicable to that component of a written disclosure by the Complainant to the Department Secretary relating to an allegation that a coworker of the Complainant’s was violating the Respondent’s fraternization policy where: (1) the Complainant had raised the fraternization issue once before, (2) it had been investigated and resolved by a previous secretary and (3) as a result, the Respondent did not feel that this part of the Complainant’s more recent disclosure merited further investigation. However, where the second component of the Complainant’s written disclosure (that an employee used work phones for personal calls) was the subject of individual meetings with employees in the Complainant’s work unit after the date of the disclosure, it appeared as though the Respondent felt that this part of the disclosure merited further investigation and, as a result, the statutory presumption of retaliation would apply. King v. DOC (Wis. Pers. Comm'n, 03/22/96).

The presumption of retaliation does not apply to all discipline occurring within certain time periods. It only applies to that discipline specifically listed in secs. 230.80(2)(a), (b), (c) and (d), Stats., rather than disciplinary actions falling within sec. 230.80(2)(intro), Stats. Sadlier v. DHSS (Wis. Pers. Comm'n, 03/30/89).

The Complainant was entitled to the presumption of retaliation even though the Respondent did not investigate the disclosure before issuing the Complainant a letter stating that the information “merits further investigation.” The Personnel Commission is only to look at whether the agency found the information merited further investigation rather than to carry out a substantive review of the adequacy of that finding. Sadlier v. DHSS (Wis. Pers. Comm'n, 03/30/89).