659 Miscellaneous

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).

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).

The fact that the Complainant was hired by the same individual who fired the Complainant only a short time later creates an inference that there was no improper discrimination. Anderson v. AWC Group (LIRC, 07/21/10).

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).

In disciplinary cases in which a Complainant claims to have been disciplined more harshly, determining whether employees are similarly situated normally entails a showing that the two employees dealt with the same supervisor, were subject to the same standards, and had engaged in similar conduct without such differentiating or mitigating circumstances as would distinguish their conduct or the employer’s treatment of them. When different decision-makers are involved, the situations are rarely similarly situated in all respects. Different decision-makers may exercise their discretion differently. Castro v. Micro-Precision (LIRC, 06/25/04).

While the fact that two of the decision-makers in this case were similar in age to the Complainant might suggest that they would not prejudge his capabilities based upon his age, it is certainly not a truism that employers do not discriminate against individuals who are in the same protected class. Stern v. RF Technologies (LIRC, 02/06/04).

A business owner who discharges an employee because of that person’s protected status violates the law. It does not matter if it was done in an attempt to make the business more attractive to an outside party who was interested in investing in it. Trainor v. Hanson (LIRC, 04/28/00).

Generally, the failure to promote an employee will not be construed as a failure to hire, except in rare cases where the position sought by an employee and the position offered by the employer are so different that the employer's action can be considered a failure to hire rather than to promote. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

Where allegations of discriminatory conduct are resolved by a settlement agreement, those allegations will not thereafter be considered if offered as evidence in a proceeding between the parties on a subsequent claim of discrimination. Where an individual claimed that the employer offered him money to give up his employment in an effort to settle an earlier discrimination claim, and such offer had been made prior to the parties having signed a settlement agreement releasing the employer from any and all claims arising out of conduct by the employer prior to the date the agreement was signed, the settlement agreement precluded the Complainant from using the offer as evidence of discriminatory motive in a subsequent discrimination claim alleging, among other things, retaliation in regard to discharge. Moncrief v. Gardner Baking (LIRC, 07/01/92).