THOMAS G. WULF, Complainant
NEW RICHMOND POLICE DEPARTMENT, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
1. Delete Findings of Fact number 1 through 10 and substitute therefor the following:
1. The Complainant, Thomas Wulf, began employment with the Respondent, the Police Department of the City of New Richmond, as a patrol officer, in November of 1993.
2. In the fall of 2001, Mark Samelstad was hired as the Chief of Police of the New Richmond Police Department.
3. From the time Samelstad started as Chief, he and Wulf had conflicts. Wulf was reprimanded in 2003 in connection with an issue regarding his whereabouts on a work day, and he felt that reprimand was frivolous and that he had been singled out. Also in 2003, Wulf resigned from an assignment he had briefly served in as a Field Training Officer, informing Samelstad that his reason was that Samelstad had given him information verbally and then changed it later, and complaining about matters including a uniform allowance issue, an overtime pay issue, and the pay for the assignment. Samelstad, for his part, had a problem with Wulf's attitude and morale. Samelstad thought that Wulf did not agree with the majority of the decisions he made, and that Wulf caused problems because of that.
4. In a performance evaluation completed in June, 2003, Samelstad rated Wulf as "meeting standards" in most areas, but he rated Wulf as needing improvement in two areas, "Morale" (a category in a section entitled "Attitude") and "Relationships (on duty) with Department Members." Samelstad also commented in the "Areas that Need Improvement, if any" area of the evaluation, "Need to work on attitude, stop complaining to other Dept. employees about procedures being used By Department."
5. In a performance evaluation completed in December, 2003, Samelstad again rated Wulf as meeting standards in most areas but as needing improvement in the two areas, "Morale" and "Relationships With Department Members."
6. In a performance evaluation completed in June, 2005, Sgt. Gayle Freiseis rated Wulf as exceeding or meeting standards in most areas, including the "Relationships With Department Members" area, but Freiseis rated Wulf as needing improvement in the "Morale" area. Sgt. Freiseis also commented, in the "Areas that Need Improvement, if any" area of the evaluation, that:
Officer Wulf has the ability and experience to be an exceptional officer. His knowledge of law enforcement is invaluable to the members of this department. Officer Wulf's moral (sic) does appear to directly affect his performance at this department, and he needs to find a way to let the things that bother him that he can't change, go. His co-workers enjoy working with him most of the time but often comment that "Monday" can turn into a gripe session.
I would like to see Officer Wulf work through the issues he has with things here. I enjoy and am comfortable working with Officer Wulf and would like to see him end his career here on a high note and be recognized as the exceptional officer he is.
This performance evaluation was reviewed by Samelstad.
7. In performance evaluations completed in December, 2005 and June, 2006, Lt. Jerry Cody rated the Complainant as exceeding or meeting standards in most areas, including the "Morale" area and the "Relationships With Department Members" area. However, in a performance evaluation completed in January, 2007, while Lt. Cody rated Wulf as meeting or exceeding all standards, he also included these comments:
Officer Wulf is a very opinionated person. He strongly supports his beliefs. If Officer Wulf does not agree with a decision, he may complain about the issue to fellow officers. While discussion is appropriate and useful, Officer Wulf must be aware of how he states things in front of fellow officers, especially new officers as it may create an undue influence on their thinking. Officer Wulf will speak to supervisors about things he feels are wrong or could be done in a different way.
In addition, at the conclusion of this performance evaluation, under the heading "Steps to correct sub-standard work and/or recognition of good or exceptional work," Lt. Cody wrote:
Officer Wulf at times must think of the good of the department as a whole rather than for himself. He must be ready to work with the department to provide the city with an efficient department. He must be more flexible in his thinking and not just look at or "listen to" the "other side" but to actually consider other views.
This performance evaluation was reviewed by Samelstad.
8. Up until September 4, 2007, Wulf had not raised to Samelstad, or in any other context, any claim or issue involving alleged discrimination within the scope of the Wisconsin Fair Employment Act, and there is no basis to believe that Samelstad had any perception that Wulf was or had been raising any such claim or issue.
9. On September 4, 2007, Wulf filed an age discrimination complaint against the Respondent with the Equal Rights Division (ERD Case No. CR 200703183). It alleged that the New Richmond Police Department had discriminated against Wulf because of his age in a number of respects including job and duty assignments, training, and overtime work and pay. A copy of the complaint in that matter was transmitted to the Respondent by the Equal Rights Division on September 11, of 2007.
10. In a performance evaluation completed in early 2008, while Lt. Cody rated Wulf as meeting or exceeding all standards, his evaluation also included the following comments in parts C. and E. of the evaluation's "4. Teamwork And Internal Relations" section:
Tom is at times unhappy with the operation of the police department. He will at times while speaking to other officers make unfair comments about other officers or the department.
In addition, at the conclusion of this performance evaluation, under the heading "Steps to correct sub-standard work and/or recognition of good or exceptional work," and specifically referencing parts C. and E. of the evaluation's "4. Teamwork And Internal Relations" section in which he had written the above comments, Lt. Cody also wrote:
Tom is at times very opinionated and is very concerned with his job. If Tom feels he has been "wronged" in some way he can and has been very vocal about the issues. At times he may speak poorly of a member of the department or the operation of the department in front of new officers. Tom must be aware that these new officers are very impressionable and it may be poor conduct to make statements in front of these officers as it may adversely affect their opinion on other officers of the department.
This performance evaluation was reviewed by Samelstad.
2. Add the following at the end of Finding of Fact number 11:
There is no basis to believe that Samelstad's decision to zero out the "comp time bank" balances of officers was motivated by the fact that Wulf had filed a discrimination complaint against Respondent.
3. Add the following at the end of Finding of Fact number 14:
In addition, no FTO position was eventually created. In relation to the matter of evidence collection training, no officers were added to the evidence collection team since its inception. There is no basis to believe that any decisions made by Samelstad regarding either giving Wulf an FTO position, or providing Wulf with evidence collection training, were motivated by the fact that Wulf had filed a discrimination complaint against Respondent.
4. Delete the last sentence of Finding of Fact number 17 and substitute therefor the following:
There is no basis to believe that Samelstad's initial decision not to grant Wulf's vacation request for July 4-6 of 2008 was motivated by the fact that Wulf had filed a discrimination complaint against Respondent. Wulf subsequently filed a grievance with the Respondent under the collective bargaining agreement between the Respondent and Wulf's union, the Labor Association of Wisconsin, alleging that the Respondent violated that collective bargaining agreement by denying Wulf's vacation request. That grievance did not raise any claim or issue involving alleged discrimination within the scope of the Wisconsin Fair Employment Act, and there is no basis to believe that Samelstad had any perception that Wulf was raising any such claim or issue.
5. Delete the last sentence of Finding of Fact number 20 and substitute therefor the following:
Their request was denied, initially by Lt. Cody, and then on review by Chief Samelstad, because there had never been such payments made before. There is no basis to believe that these decisions not to grant Wulf's request for overtime pay for the time spent in the testing process were motivated by the fact that Wulf had filed a discrimination complaint against Respondent.
6. Add the following at the end of Finding of Fact number 21:
There is no basis to believe that these decisions not to grant Wulf's request to attend an arson detection training class were motivated by the fact that Wulf had filed a discrimination complaint against Respondent.
7. Delete Finding of Fact number 22 and substitute therefore the following:
Wulf subsequently filed a grievance alleging that the denial of overtime for the testing process violated the collective bargaining agreement. That grievance did not raise any claim or issue involving alleged discrimination within the scope of the Wisconsin Fair Employment Act, and there is no basis to believe that Samelstad had any perception that Wulf was raising any such claim or issue.
8. Delete the first sentence (through "follows:") of Finding of Fact number 24 and substitute therefor the following:
Shortly after May 30, 2008, Samelstad came to believe, based on information he received from Lt. Cody, that in a meeting in the squad room on May 30, 2008, Wulf had been vocally critical of Samelstad's decision to assign a particular officer to assist a detective who was working on a major investigation. After hearing this information, Samelstad became "fed up" with Wulf and decided that he had "had it" with Wulf, both because of what he understood Wulf to have said on May 30, 2008, and also because of other incidents, including incidents pre-dating Wulf's filing of his employment discrimination complaint. Samelstad then issued a written reprimand and warning to Wulf on June 5, 2008, stating as follows:
9. Delete Finding of Fact number 25 and substitute the following therefor:
25. There is no basis to believe that Samelstad's issuance to Wulf of the June 5, 2008 written warning was motivated by the fact that Wulf had filed a discrimination complaint against Respondent. Wulf subsequently had a grievance prepared concerning the June 5, 2008 written warning, and Wulf's union representative met with Samelstad to discuss it. That grievance did not raise any claim or issue involving alleged discrimination within the scope of the Wisconsin Fair Employment Act, and there is no basis to believe that Samelstad had any perception that Wulf was raising any such claim or issue. After discussing the potential grievance with the union representative and becoming persuaded that it had been another officer who had made the critical comments in the squad room, Samelstad agreed that the written warning and the grievance could both be ripped up, for which Wulf thanked Samelstad.
10. In Finding of Fact number 29, delete "Officer Turbeville second first in total score," and substitute therefor, "Officer Turbeville ranked second in total score."
11. Add the following at the end of Finding of Fact number 32:
The decision on who to promote to the Patrol Sergeant position was made by Chief Samelstad. While Samelstad was aware that Wulf had filed a discrimination complaint against the Respondent with the ERD, he made his decision without regard to that fact. Chief Samelstad decided to give the promotion to Officer Turbeville because he believed it was the best choice and that Turbeville was the most qualified candidate.
12. Delete Finding of Fact number 33 and substitute therefor the following:
33. Neither Chief Samelstad nor any other agent of the Respondent was motivated, in taking any adverse action towards or making any decision concerning Wulf, by the fact that Wulf had filed a discrimination complaint with the ERD.
13. Delete Finding of Fact number 34 and substitute therefor the following:
34. Apart from his filing of a complaint with the Equal Rights Division on September 4, 2007, alleging that the respondent had discriminated against him because of age, Wulf never raised any claim or issue involving alleged discrimination within the scope of the Wisconsin Fair Employment Act, with Chief Samelstad or any other agent of the Respondent, in any form. Neither Chief Samelstad nor any other agent of the Respondent was motivated, in taking any adverse action towards or making any decision concerning Wulf, by any belief or perception that Wulf was opposing what he believed to be discrimination under the Wisconsin Fair Employment Act.
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed
July 22, 2013
wulftho_rmd : 110 :
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
Issues - The Wisconsin Fair Employment Act provides, in Wis. Stat. § 111.322(3), that it is an act of employment discrimination to discharge or otherwise discriminate against any individual because he or she has opposed any discriminatory practice under this subchapter or because he or she has made a complaint, testified or assisted in any proceeding under this subchapter.
It has been recognized that this provision has two separate parts, an "opposition" element ("...opposed any discriminatory practice under this subchapter ..."), and a "participation" element ("...made a complaint, testified or assisted in any proceeding under this subchapter"). The "opposition" clause covers actions taken by an employee on their own to protest to their employer that they believe the employer is engaging in discrimination; the "participation" clause relates directly and exclusively to the filing of a complaint with the agency or to assisting or participating in the investigation of a filed complaint. Notaro v. Kotecki & Radtke, S.C., ERD Case No. 8902346 (LIRC, Jul. 14, 1993). A different legal standard governs these issues: in order to be protected, "opposition" must actually be in good faith, while "participation" is always protected. Id. In addition, it is an essential element of either kind of retaliation case, that an employer be shown to have been aware of the protected activity the employee engaged in. For these reasons, it is necessary to be specific about identifying what is claimed to have been the protected conduct (either "opposition" or "participation") the complainant is alleged to have engaged in and to have been retaliated against because of. Hanson v. Wisconsin Dept. of Transportation, ERD Case Nos. 200303172, 200303173 (LIRC, Jun. 14, 2005).
On the complaint form filed in this matter, the complainant marked checkboxes indicating that he was alleging that the respondent had discriminated against him both because he had filed a previous discrimination complaint with the ERD, and because he had opposed discrimination in the workplace. However, the narrative "Statement of Discrimination" in the complaint was limited to alleging that the complainant had filed a complaint of age discrimination against the respondent on September 4, 2007 (ERD Case No. CR200703183), and that three specific adverse actions by the respondent (denial of promotion to a patrol sergeant position, denial of pay for time spent taking a test for the patrol sergeant position, and issuance of a written reprimand) were taken against him in retaliation for the filing of that 2007 complaint. This raised a question as to whether the complainant was actually intending to raise any independent claim of discrimination because of protected "opposition."
The case proceeded as if he was. Thus, the notice of hearing issued in this matter stated that the issue for hearing would be whether the respondent discriminated against the complainant because the complainant opposed a discriminatory practice and made a complaint under the WFEA. Evidence offered at the hearing touched on a range of communications between the complainant and the agents of the respondent over an extended period of time. The administrative law judge's eventual decision contained separate Findings of Fact and Conclusions of Law concerning both the issue of whether the respondent discriminated against the complainant because he had filed a complaint under the WFEA, and the issue of whether the respondent discriminated against the complainant because he opposed in good faith what he perceived to be a discriminatory practice under the WFEA.
The petition for commission review filed on the complainant's behalf asserted both that the administrative law judge erred in finding that the respondent did not discriminate against the complainant because he had filed a complaint under the WFEA, and that the administrative law judge erred in finding that the respondent did not discriminate against the complainant because he had opposed what he in good faith believed to be discriminatory practices under the WFEA. However, the petition for review was not accompanied by any further argument; and while a briefing schedule was established at the request of the complainant's counsel, she then never filed a brief. Thus, the commission is left with no clear indication as to whether the complainant actually contends, that he engaged in acts of protected informal "opposition" to perceived discrimination (other than by the filing of the 2007 complaint) which he alleges were also part of the respondent's motives for taking adverse action(s) against him.
Given this uncertainty, the commission has proceeded as though the complainant did actually intend to raise a separate and distinct issue of retaliation for protected informal "opposition" to perceived discrimination.
Alleged discrimination because of informal "opposition" to perceived discrimination - The evidence of recurring criticisms of the complainant for complaining too much about things occurring in the department, can create an initial impression that there may be some merit to a retaliation charge. But,
as the commission has emphasized on a number of occasions, a finding of retaliation is ultimately a finding about the employer's motivation: i.e., a finding that the employer believed that the employee was objecting to employment discrimination and retaliated against the employee because of that. Therefore, the opposition must have been recognizable to and recognized by the employer as involving a claim of employment discrimination.
Norton v. City of Kenosha, ERD Case No. 9052433 (LIRC, Mar. 16, 1994). From what is in the record in this case, it does not appear that Wulf ever communicated anything to the respondent which would have been recognizable to and recognized by it as involving a claim of employment discrimination, apart from his filing of the 2007 complaint. Certainly, Wulf repeatedly objected to and grieved things he felt were violations of the applicable collective bargaining agreement, but it does not appear that in any of these cases there were any claims made that employment discrimination of the kind prohibited by the WFEA was occurring. Even if the respondent was motivated by unhappiness with Wulf's aggressive assertion of rights under the collective bargaining agreement and retaliated against him for that reason (1) this would not give rise to a cause of action for retaliation under Wis. Stat. § 111.322(3). See, Norton v. City of Kenosha, supra.
Alleged discrimination because of the filing of the 2007 complaint --
Wulf filed an age discrimination complaint against the respondent with the ERD in September, 2007, and agents of the respondent including Chief Samelstad were aware of that complaint. After the filing of that complaint, the respondent made a number of decisions and took a number of actions concerning Wulf. These included the response to Wulf's inquiry about an FTO position and about evidence collection training in January 2008, the denial of a vacation request in April 2008, the denial of pay for time spent on the promotional test in May 2008, the denial of arson investigation training in May 2008, the written warning/reprimand in May 2008, and the denial of the promotion to patrol sergeant in July 2008. 2(2)
However, the timing of a complaint and discipline does not in itself establish retaliation. Kannenberg v. LIRC, 213 Wis. 2d 373, 396, 571 N.W.2d 165 (1997). Closeness in time between the protected action and alleged retaliation only presents a rebuttable presumption of retaliation; that presumption may be rebutted by articulation of a legitimate, nonretaliatory reason for its actions, which then requires the complainant to establish that the proffered reason for the action was pretextual in order for the complainant to prevail. Potts v. Magna Publications, ERD Case No. 199701821 (LIRC, Feb. 27, 2001).
Based on its review of the record, and as more particularly described in the findings of fact made and relied on herein, the commission is persuaded that the decisions made and the actions taken by Chief Samelstad and other agents of the respondent in the period after the filing of the 2007 complaint, were made and taken by them for the reasons to which they testified, and not because of any retaliatory motive.
The commission recognizes that, considered out of context, evidence that an employer criticized an employee for being "unhappy with" the employer and for being "vocal[ly]" "opinionated" about having "been 'wronged' in some way," when that criticism came on the heels of that employee filing a discrimination complaint, could be seen as suggesting a retaliatory motive. But in this case, the context tells a different story. It is clear that there was a long-standing pattern of conflict here, from the time Chief Samelstad took his position in 2001, of Officer Wulf complaining about things he disliked and of Samelstad disliking that complaining. Significantly, that pattern arose, and persisted for years, in the complete absence of any complaints from Wulf about alleged employment discrimination under the WFEA. The continuation of this longstanding conflict between Wulf and Samelstad after the filing of the 2007 discrimination complaint appears to have been precisely that: a continuation.
For all of the foregoing reasons, the commission agrees with and affirms (as modified herein) the decision of the administrative law judge that the respondent did not engage in retaliation against the complainant.
NOTE: The commission had no disagreement with the material findings of the administrative law judge. It has modified his findings as reflected above in order to set forth more fully the reasons that it arrived at the same result.
cc:
Carol S. Dittmar, Attorney for Complainant
Thomas A. Gilligan, Attorney for Respondent
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