619 Miscellaneous

Under a "cat's paw" argument, the fact finder may impute a discriminatory motive to an unbiased decision-maker who is decisively influenced by an employee who is prejudiced against the Complainant. The Complainant failed to prove discrimination by this argument, by failing to prove discriminatory animus on the part of supervisors who gave the decision-maker negative impressions of the Complainant during a selection process, and by failing to prove that the decision-maker was decisively influenced by those impressions, as opposed to coming to her independent judgment about the Complainant's qualifications. Delgadillo v. Kenosha Unified Sch. Dist. (LIRC, 11/30/2018), aff'd sub nom. Delgadillo v. LIRC (Milwaukee Co. Cir. Ct., 10/28/2019).

The Complainant, making a “cat’s paw” argument, contended that although the individual making the hiring decision had no perception that the Complainant was disabled, the recruiter who collected his application materials perceived him to be disabled, and withheld certain application materials from the decision-maker because of that perception. The Complainant failed, however, to prove that the recruiter’s failure to send the materials to the decision-maker was motivated by discriminatory animus and failed to prove that the missing materials had any effect on the hiring decision. Ray v. Gordon Trucking (LIRC, 06/07/13).

An employer who has a past record of not discriminating against individuals in a protected class is not immune as a matter of law from a discrimination complaint. Evidence of an employer’s favorable treatment of employees in a protected class may be relevant to rebut a claim of discrimination by showing a lack of discriminatory intent but would not operate as a bar to the claim. Monpas v. MRS Machining Co., Inc. (LIRC, 04/08/13).

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).

If an employer acted as a conduit of a supervisor’s prejudice (i.e., his “cat’s paw”) the Respondent will be liable. In this case, the Complainant, a female, applied for a promotion within the police department. A detective captain on the selection committee recommended a male for this position, rather than the Complainant. Based upon the evidence at the hearing, it was reasonable to infer that the detective captain, as an agent for the Respondent, lied to cover up his discriminatory purpose. He fabricated deficiencies in the Complainant’s performance to justify his choice of another candidate. He did this because he did not want a woman in the position of detective sergeant. The detective captain presented his choice of the male candidate to the selection committee (which was an unbiased decision-maker). The committee rubber-stamped his choice, as was their practice. This choice was then presented to the sheriff, who also accepted the choice of the captain of the division in which the promotion was occurring, as was his practice. In this way, the decision by the biased detective captain decisively influenced the selection committee and the sheriff. His discriminatory motive is attributed to the Respondent. Thobaben v. Waupaca County Sheriff’s Dep't (LIRC, 12/23/11).

The Labor and Industry Review Commission has not adopted the view that a complainant is required to prove that an employment action is “material” in order to be actionable under the Wisconsin Fair Employment Act. The statutory language of neither the WFEA nor Title VII imposes this requirement. The imposition of a requirement that alleged discriminatory employment conduct be “material” is a judicially-created requirement in cases brought under Title VII. While federal law may be looked to for guidance in considering discrimination claims under the WFEA, federal law is not binding. Wisconsin courts must construe Wisconsin statutes as it is believed the Wisconsin Legislature intended, regardless of how the U.S. Congress may have intended that comparable statutes be construed. By its terms, the Wisconsin Fair Employment Act is to be liberally construed for the purpose of deterring and remedying discriminatory conduct of employers which infringes employees’ civil rights. It would be inconsistent to impose a requirement that discriminatory conduct be “material” simply in an effort to separate what some might consider to be “significant” claims from “trivial” claims. Krushek v. Trane Co. (LIRC, 12/23/10).

What is “material” in an employment relationship may be quite subtle. In a close case, the imposition of a requirement that the alleged adverse employment action be “material” would likely cause the trier of fact to apply his or her own subjective belief as to what is or is not a material adverse action. Krushek v. Trane Co. (LIRC, 12/23/10).

In a claim of retaliation under the Wisconsin Fair Employment Act, a complainant must show that a reasonable individual would have found the challenged action to be adverse. That is, the action might well have dissuaded a reasonable individual from opposing any discriminatory act under the Act or from making a complaint, testifying or assisting in any proceeding under the Act. There is no bright-line rule. Whether alleged discriminatory conduct is sufficiently adverse can only be determined upon careful examination of the facts and circumstances presented in each case. Krushek v. Trane Co. (LIRC, 12/23/10).

Not everything that makes an employee unhappy is an actionable adverse action. Otherwise, minor and even trivial employment actions would form the basis of a discrimination suit. In this case, the Complainant failed to establish that a memo that was sent to the security director by her lieutenant constituted an adverse employment action. The Complainant alleged that the memo falsely accused her of being the subject of a large number of inmate complaints and of being unprofessional and demonstrating a lack of tact when working with inmates. The evidence failed to show that the memo cause the security director to form an unfavorable impression of the Complainant. The memo was an internal memo that was not made a part of the Complainant’s personnel file. The memo had absolutely no effect on the Complainant’s terms or conditions of employment. Gephart v. DOC (LIRC, 11/18/09).

The Complainant failed to show that she suffered an adverse employment action when the Respondent reorganized part of its workforce and did not place her in an internal sales position as part of this reorganization. The Complainant failed to show that she requested placement in a particular position or classification, or that the consultant position in which she was placed was less desirable than others for which she was qualified, including the new internal sales positions. The Complainant’s new consultant position was at the same level and pay as her previous position and as the internal sales positions created as part of the reorganization, and actually involved higher level responsibilities than the internal sales positions. Vick v. Marshfield Door Sys. (LIRC, 01/31/07).

The Labor and Industry Review Commission has not specified a minimum level of significance that an action is required to meet in order to be cognizable under the Wisconsin Fair Employment Act (other than an implicit de minimis level). Pluskota v. Alverno College (LIRC, 10/21/05).

The Labor and Industry Review Commission has not adopted the approach of the Seventh Circuit Court of Appeals that in order to satisfy the second element of a prima facie case (i.e., that the Complainant suffered an adverse employment action), an action must have a materially adverse impact on a Complainant’s employment status (such as that effected, for example, by a termination, demotion, a decrease in wages, a material loss of benefits, or significantly diminished responsibilities). Post v. Mauston School Dist. (LIRC, 08/28/02); Froh v. Briggs & Stratton (LIRC, 09/29/04).

The Seventh Circuit Court of Appeals has articulated a “cat’s paw” analysis that allows the finder of fact to impute a discriminatory motive to an unbiased decision maker who is decisively influenced by an employee who is prejudiced against the Complainant. In this case, the Complainant contended that the individual who made the decision to discharge him was unaware of his sexual orientation, but that she relied on information and recommendations provided by supervisors who were prejudiced against the Complainant because of his sexual orientation. The Complainant failed to establish that the decision maker relied exclusively or primarily on information she received from the supervisors in reaching the decision to terminate the Complainant. The Complainant also failed to establish that the supervisors were prejudiced against the Complainant because of his sexual orientation. Haecker v. Charter Steel (LIRC, 01/28/03).

The Complainant failed to establish that the Respondent violated the Act where the Respondent established that it believed in good faith that complaints made about the Complainant by other employees were true and that this is what motivated its decision to terminate the Complainant’s employment. Potts v. Magna Publications (LIRC, 02/27/01).

A negative performance evaluation is not considered an adverse employment action unless it has a tangible adverse effect on an employee’s employment status with regard to such things as salary or promotion. Cunningham v. DOC (Wis. Pers. Comm’n, 01/19/01).

The applicable standard in determining whether an adverse employment action has been taken against the Complainant if the subject action is not one of those specified in sec. 111.322(1), Stats., is whether the action had any concrete, tangible effect on the Complainant’s employment status. Examples of situations that have been held to not constitute “adverse actions” include: (1) lower performance rating and work restrictions; (2) lateral transfer resulting in title change and employee reporting to former subordinate; (3) transfer to another school; (4) comment made to the Complainant by one of her supervisors during a meeting asking whether she had anything to add; (5) negative performance evaluation; (6) solicitation or acceptance of negative comments from an employee’s coworkers; (7) physical move to an equivalent nearby office, and (8) interference with the Complainant’s receipt of some work-related information through informal discussions. Olmanson v. DHFS (Wis. Pers. Comm’n, 01/19/01).

Not everything that makes an employee unhappy is a cognizable adverse action. The Wisconsin Fair Employment Act was not intended to create a cause of action for minor or trivial employment actions. Lincoln v. DHFS (Wis. Pers. Comm’n, 08/28/00).

In order to prevail on a claim of discrimination or retaliation under the Wisconsin Fair Employment Act, a Complainant is required to show that he or she was subject to a cognizable adverse employment action. Sec. 111.322(1), Wis. Stats., makes it an act of employment discrimination to “refuse to hire, employ, admit or license any individual, to bar or terminate from employment. . . or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment.” The applicable standard, if the subject action is not one of those specified in this statutory section, is whether the action had any concrete, tangible effect on the Complainant’s employment status. Dewane v. UW-Madison (Wis. Pers. Comm'n, 12/03/99).

In analyzing whether other candidates had qualifications equal or superior to those of the Complainant, the focus is not on how the Complainant or the Department views the candidate’s qualifications in comparison to the other candidates, but on how the Respondent perceived them. By the same token, courts generally decline to dictate what factors an employer may use to judge between employees or job applicants, so long as the factors are considered in good faith and are not discriminatory. Naill v. W. Wis. Tech. College (LIRC, 02/12/99).

A negative performance evaluation may constitute an adverse employment action and may form the basis for a discrimination complaint. The harm to the Complainant was not limited to having received a poor evaluation. She also suffered the loss of a tangible job benefit in that she was denied a salary increase as a direct result of the evaluation. Munzenberger v. County of Monroe (LIRC, 08/13/98).

Informal discipline, such as negative entries in a supervisor’s log, can constitute an actionable adverse employment action. Foust v. City of Oshkosh Police Dep't (LIRC, 04/09/98).

Stray remarks, when unrelated to the decisional process, are insufficient to demonstrate that the employer relied on illegitimate criteria, even when such statements are made by the decision-maker in issue. In this case, the comment by a regional vice president of the Respondent that he couldn’t “get rid of [the Complainant] because [he was] too damn old” was not persuasive evidence that the Complainant's age was a factor in his failure to be hired. The remark was made at some unspecified time five years earlier, and the Complainant himself conceded that no other comments were made which implicated his age. Jacobs v. Glenmore Distilleries (LIRC, 07/27/95).

Discriminatory attitudes are not unlawful unless they actually result in discriminatory treatment. In this case, there was evidence that the Respondent’s operation’s manager stated that he thought that men made better managers. However, no unlawful discrimination was established where the record indicated that the operation manager’s selection of store managers was in fact not limited to males and that he retained a number of female store managers. Currie v. Garrow Oil (LIRC, 06/16/95), aff’d, Adams Co. Cir. Ct., 05/06/96; aff’d sub nom. Currie v. LIRC, 210 Wis. 2d 380, 565 N.W.2d 253 (Ct. App. 1997).

Discriminatory attitudes are not unlawful unless they actually result in treatment. In this case, the fact that an agent of the Respondent had certain biased views concerning women was irrelevant where the non-promotion of the Complainant resulted from non-discriminatory factors. Schiller v. City of Menasha Police Dep’t (LIRC, 01/14/93).

The Respondent did not violate the Wisconsin Fair Employment Act, even though the owner of the Respondent said, with regard to hiring two Cuban job applicants, “If they are Cuban, no way.” There were no job openings for which the Complainants could apply at the time that the Respondent’s owner made this statement. As repugnant as the discriminatory attitude that was expressed by the Respondent may be, such discriminatory attitude must result in discriminatory treatment in order to constitute a violation of the Act. Dominguez v. Lawrence (LIRC, 01/30/91).

While it is possible (given statements by the Respondent’s owner that the Complainant didn’t need more pay because she had a husband who was working) that the Respondent would have denied the Complainant health insurance benefits because of her sex had it been confronted with the necessity of making a decision on that point, no decision was ever made, and thus no discrimination ever occurred. Discriminatory attitudes are not unlawful unless they result in discriminatory treatment. Sahr v. Tastee Bakery (LIRC, 01/22/91).

It is not a function of the Wisconsin Fair Employment Act to dictate to employers, as a general matter, that hiring and other employment decisions must be made on the basis of particular, job-related, considerations. Legro v. County of Langlade (LIRC, 03/20/90).

Criteria of a subjective nature are sometimes necessary in hiring, especially in hiring supervisory personnel, and there is nothing discriminatory per se about the use of such criteria. However, the use of such criteria will be closely scrutinized where applied by a non-minority decision-maker to a minority candidate. Howard v. City of Madison (LIRC, 02/24/87).