RICHARD E ΤΟLLΙVΕR, Complainant

THE MARCUS CORPORATION, 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 modification:

The third and fourth sentences in the fourth paragraph of the administrative law judge's ORDER OF DISMISSAL are deleted.

The decision of the administrative law judge (copy attached), as modified, is affirmed.

Dated and mailed February 26, 2010
tоllіrі . rmd : 164 : 9

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

Procedural Background

The complaint in this matter (ERD Case No. 200704228) was filed against the Marcus Corporation on November 20, 2007. On December 4, 2007, the complainant filed an identical complaint (ERD Case No. 200704390) against the Milwaukee City Center d/b/a Hilton Milwaukee City Center (hereinafter "Milwaukee City Center.")

On March 31, 2008, the Equal Rights Division (hereinafter "Division") issued a preliminary determination dismissing the complaint against the Marcus Corporation for lack of jurisdiction. On the same day the Division issued an initial determination in the case against Milwaukee City Center, which found no probable cause on the merits of the case. The complainant filed an appeal of both determinations.

On July 25, 2008, an administrative law judge issued a decision remanding the instant case for further investigation, and on January 5, 2009, the Division issued a second preliminary determination, again finding that it did not have jurisdiction over this matter. The complainant filed an appeal.

In the mean-time, on March 12, 2009, a hearing was held on the merits of the complaint filed against the Milwaukee City Center. The hearing was held before one of the Division's administrative law judges.

On April 15, 2009, an administrative law judge ordered the preliminary determination in the instant case to be set aside, and again remanded the matter for further investigation. On April 28, 2009, the Division issued an initial determination finding no probable cause on the merits of the case filed against the Marcus Corporation. With the exception of the name of the employer, the initial determination was identical to that previously issued in the Milwaukee City Center case. The complainant appealed. On May 7, 2009, the matter was certified for hearing, but no hearing date was scheduled.

On September 22, 2009, the administrative law judge who held the hearing in the Milwaukee City Center case issued a decision finding no probable cause and dismissing the complaint.

On September 30, 2009, the respondent submitted a letter requesting dismissal of the instant case. The respondent argued that the charges against Milwaukee City Center were identical to the charges against the Marcus Corporation and that the complainant should be prevented from relitigating the exact same case against the Marcus Corporation.

On October 29, 2009, an administrative law judge issued an order dismissing the complaint against the Marcus Corporation on the basis of issue preclusion. The complainant has filed a petition for commission review of that decision.
 

Issue Preclusion/Claim Preclusion

The commission has explained the doctrines of claim and issue preclusion in the following manner:

Under the doctrine of claim preclusion, a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings. DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883 (1983). The purpose of the doctrine is to prevent repetitive litigation. Fairness to the defendant and sound judicial administration require that at some point litigation over the particular controversy must come to an end. Id. at 311. In order for an earlier action to act as a claim preclusive bar to a subsequent action the following factors must be present: (1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and (3) a final judgment on the merits in a court of competent jurisdiction. Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995).

Issue preclusion, on the other hand, refers to the effect of a judgment in foreclosing relitigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action. Id. at 550. A "fundamental fairness" standard exists when applying issue preclusion and requires consideration of the following factors: "(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel [issue preclusion] to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?" Michelle T. v. Crozier, 173 Wis. 2d 681, 689, 495 N.W.2d 327 (1993). Under the doctrine of issue preclusion, the prior judgment precludes relitigation of issues actually litigated and determined by the prior suit, regardless of whether it was based on the same cause of action as the second suit. Id. at fn. 13, p. 694.

Taylor v. St. Michael Hospital (LIRC, May 31, 2001).

The complaint filed against the Milwaukee City Center was identical to that filed against the Marcus Corporation, involving the same people, the same factual allegations, and the same alleged violations of the law. The resolution of the two complaints entails the same legal standards and burdens of proof. The complainant had a full and fair opportunity for a hearing on the merits of the Milwaukee City Center complaint in the same forum in which the Marcus Corporation complaint would be litigated if it were to go to hearing. The complainant had a right to obtain review of the Milwaukee City Center decision, and has exercised that right by filing a petition for commission review. In light of all the circumstances, the commission agrees with the administrative law judge that the doctrine of issue preclusion prevents the complainant from litigating the identical complaint a second time.

In his petition the complainant argues that the Marcus Corporation and the Milwaukee City Center are the same entity. The complainant states that the Milwaukee City Center is owned and operated by the Marcus Corporation. The question of whether the Milwaukee City Center and the Marcus Corporation are the same entity has not been resolved. However, assuming the complainant is correct and that the respondents in both complaints are really one entity, then litigation of this matter would also be barred under the doctrine of claim preclusion, under which a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings.

NOTE: For the sake of clarification, the commission has modified the administrative law judge's decision to delete the finding that the Milwaukee City Center and the Hilton Milwaukee City Center are the same entity. This statement, although accurate, is misleading in that it gives the erroneous impression that the dismissal is based upon a finding of claim preclusion, which requires an identity between the parties in both complaints. As indicated above, the question of whether Milwaukee City Center and the Marcus Corporation are the same entity has not been resolved. That Milwaukee City Center and Hilton Milwaukee City Center, the named respondents in the companion complaint, are the same entity, has no bearing on the question of whether the September 22 decision involving the Milwaukee City Center d/b/a Hilton Milwaukee City Center has a preclusive effect on a complaint filed against the Marcus Corporation.

cc:
Milwaukee City Center
Attorney Michael P. Kohler

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