133.3 Retaliation by former employer

The Complainant sought to prove that a former employer retaliated against him by giving bad references to his prospective employers, but his only evidence was a report from a reference-checking service purporting to give the former employer’s answers to reference questions. The report was hearsay, and although it might have been a record of regularly conducted activity under the hearsay exception of Wis. Stat. § 908.03(6), the Complainant failed to provide a foundation for the report through the testimony of the custodian of the report or another qualified witness. Although it may be admissible, hearsay evidence cannot be the entire support for a critical finding of fact. Germaine v. Sussek Machine Corp. (LIRC, 02/13/14).

Although anti-retaliation provisions of the WFEA extend to former employees, a nexus with employment is essential to find that retaliatory actions are covered. If the Complainant is alleging that the retaliatory action adversely affects prospects for future employment, the adverse action must have a significant and identifiable employment connection to the former employee’s opportunities for future employment. DeMoya v. Dep't of Veterans Affairs< (LIRC, 12/12/13).

While the retaliatory use of a negative evaluation to affect a former employee’s job opportunities can form the basis of a discrimination complaint, such an allegation cannot be piggy-backed onto a separate complaint merely by characterizing it as evidence going to “damages” following a finding of liability. Swanson v. County of Chippewa (LIRC, 05/11/07).

The Complainant stated a claim for relief under the Wisconsin Fair Employment Act where she alleged that her former employer unlawfully retaliated against her by obtaining a restraining order against her. The restraining order, which prevented the Complainant from coming on the Respondent’s campus or having contact with employees of the Respondent, would affect her opportunities not merely to be employed by the University, but also opportunities with respect to other employers which interacted with University employees or who had a presence on the University’s campus. Garner v. UW-Milwaukee (LIRC, 02/10/06).

The Complainant stated a claim for relief under the Wisconsin Fair Employment Act where she alleged that her former employer had retaliated against her by filing a criminal complaint against her alleging that she had made harassing phone calls. However, while the threat to make, or the making of, a criminal complaint alleging that a former employee made harassing phone calls may be unlawful retaliation, it may also be lawful if it was done in good faith, without the intent to retaliate, based on a genuine belief about the matters being alleged. Garner v. UW-Milwaukee (LIRC, 02/10/06).

The Complainant alleged that, following her discharge by the Respondent, the Respondent made comments to one of its employees (who was a friend of the Complainant’s) which caused her stress. The complaint did not include any allegation that the alleged post-discharge harassment (which allegedly consisted of asking the Complainant’s friend questions about personal topics, such as where the Complainant worked and what her vacation plans were) had an adverse effect upon the Complainant’s employment opportunities. Even if the Respondent’s actions actually resulted in the type of stress claimed by the Complainant, there was no significant connection between those actions and an employment relationship, nor did the Respondent’s actions impair the Complainant’s future employment opportunities. Accordingly, the complaint was properly dismissed by the Division. Riley v. Van Galder Bus Co. (LIRC, 05/24/99).

The Complainant’s claim that the Respondent released the terms of a confidential settlement agreement does not constitute a valid claim of retaliation under the Wisconsin Fair Employment Act. The Respondent’s release of confidential settlement information had no relationship whatsoever to the Complainant’s employment. Peck v. Walworth County (LIRC, 09/27/96).

Commencing a legal action against an employee or former employee because they have made a charge of discrimination can be a violation of the anti-retaliation provisions of the Wisconsin Fair Employment Act. However, the Act’s anti-retaliation provision does not necessarily make unlawful an employer’s attempts to judicially enforce an alleged settlement agreement if the enforcement action had a colorable basis and was brought in good faith and without any punitive motive. Stillwell v. City of Kenosha (LIRC, 09/29/95).

The anti-retaliation provision of the Wisconsin Fair Employment Act extends to former employees. In this case, the Respondent filed an unfair labor practice charge before the Wisconsin Employment Relations Commission (WERC) against the Complainant, who at the time was no longer employed by the Respondent, but was proceeding to a hearing on a complaint of handicap discrimination against the Respondent. The Complainant alleged that the Respondent’s filing of the charge before the WERC constituted unlawful retaliation for protected activity under the Wisconsin Fair Employment Act. However, the Complainant’s claim of retaliation was not related to an employment relationship and, thus, fails to come within the scope of the Wisconsin Fair Employment Act. There was not a significant connection between the alleged adverse action by the Respondent and the Complainant’s employment opportunity. The gist of the WERC claim was that the Complainant should not be allowed to proceed with his handicap discrimination claim because the issues decided in that claim were already decided by an arbitrator. The WERC complaint did not have negative implications with respect to the Complainant’s activity at the workplace or his integrity as a human being. Thus, the Respondent’s action could not damage the Complainant’s reputation or impair his future employment opportunities. Seeman v. Universal Foods Corp. (LIRC, 09/22/94).

The Complainant alleged that the Respondent had retaliated against her in violation of the Wisconsin Fair Employment Act by including a defamation claim against her in a civil lawsuit already pending between the parties. The Respondent has a constitutionally protected first amendment right to bring a defamation claim in state court; however, the suit must be well-founded. There are two elements required to establish unlawful retaliation in such circumstances: (1) the lack of a reasonable basis for the state court lawsuit, and (2) a retaliatory motive. Thus, the Department must make a specific finding as to whether the lawsuit was well-founded before determining whether the lawsuit was filed in retaliation against the Complainant. If the Respondent presents a reasonable basis to the Department which demonstrates that the state court lawsuit raises genuine issues of material fact, then the agency should not proceed any further with a subsequent retaliation complaint because there are legitimate issues joined in the circuit court lawsuit. If, on the other hand, the Department finds that the defamation action is plainly foreclosed as a matter of law or is frivolous, the Department may proceed on the retaliation complaint. State of Wis. v. DILHR (Dane Co. Cir. Ct., 04/11/94).

An adverse action can, in some circumstances, be subject to the anti- retaliation provisions of the Wisconsin Fair Employment Act even though its relationship to an employment opportunity is only indirect. For example, anti-retaliation provisions cover the giving of bad references to an ex-employee in retaliation for a complaint of discrimination by that employee. Filing a lawsuit in tort against an Equal Rights Complainant seeking damages for defamation or malicious prosecution may also be retaliatory. Similarly, threatening an Equal Rights Complainant with criminal charges for allegedly making threatening phone calls to the employer could also be subject to anti-retaliation provisions. In each of these cases there is some effect upon future employment opportunities of the Complainant. In this case, however, the action which the Respondent is alleged to have engaged in because of a retaliatory motive-contacting the City Recreation Department to report that the Complainant was not a resident of the City in whose softball league she was participating--bears no conceivable relationship whatsoever to any employment opportunity, past, present, or future. While the motivation for the action arose in an employment-related context, the action itself had no relationship to employment and it was, therefore, not prohibited retaliation. Pufahl v. Niebuhr (LIRC, 08/16/91), aff’d sub nom. Pufahl v. LIRC (Dane Co. Cir. Ct., 06/16/92).