P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)




ERD Case No. CR200500591

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:

In the first sentence of Finding of Fact 16, after "On or about May 4, 2004," insert "Sierp."

In paragraph number 2 of the Order, delete the word "Complainant."

Insert as paragraph number 4 of the Order the following:

Within 30 days of the expiration of time within which an appeal may be taken herein, Respondents shall submit a compliance report detailing the specific action taken to comply with the commission's decision. The compliance report shall be directed to the attention of Jenny Koepp, Labor and Industry Review Commission, P.O. Box 8126, Madison, Wisconsin 53708. The statutes provide that every day during which an employer fails to observe and comply with any order of the commission shall constitute a separate and distinct violation of the order and that, for each such violation, the employer shall forfeit not less than $10 nor more than $100 for each offense. See Wis. Stat. § § 111.395, 103.005(11) and (12).


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

Dated and mailed February 21, 2012
lundstad . rmd : 110 : 


/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


The complaint in this matter was filed in February 2005. An initial determination issued in May 2006 found no probable cause to believe any discrimination occurred. The Complainant appealed this determination. A hearing was held on that appeal in November 2006, and in July 2007, the ALJ who had heard the appeal issued a decision affirming the determination of no probable cause and dismissing the complaint on that basis. The Complainant filed a petition for review of this decision by LIRC. In December 2008 LIRC issued a decision affirming the dismissal of the complaint on all issues which remained at that point  (1)   except for the claim of termination because of disability, on which it found probable cause and as to which it remanded for a hearing on the merits.

The matter came on for a hearing on the merits on June 2, 2009. For reasons described at more length below, the hearing was not held that day. Subsequently, the Respondents filed a motion to dismiss the complaint based on the events of that day, but this motion was denied. The matter was rescheduled and the hearing was then held on August 28, 2009.

On July 30, 2010, the ALJ who had presided at that hearing issued a decision finding that the Respondents eliminated the Complainant's position because of a perception that she was an individual with a disability, but that the Respondents would have decided to eliminate her position anyway even in the absence of a perception that she was an individual with a disability, and that therefore the only remedy provided would be a cease and desist order and attorneys fees.

The Complainant and the Respondents both filed timely petitions for review of the ALJ's decision by LIRC. Respondents' petition for review asserted that the ALJ erred in not granting the Respondents' motion to dismiss regarding the events of June 2, 2009, and it also asserted that the ALJ erred in finding that the Respondents violated the Act by eliminating the Complainant's position in part because of a perception that she was an individual with a disability. Complainant's petition for review asserted that the ALJ erred in finding that the Respondents would have eliminated the Complainant's position even in the absence of its perception that she was disabled.

Neither the Complainant or the Respondents requested an opportunity to file briefs with LIRC. No transcript of the hearing was prepared. LIRC's review was based on a synopsis of the testimony ("Summary of Proceedings"), which was completed by the Equal Rights Division on September 14, 2011. 

Issue concerning June 2, 2009 postponement and Respondent's motion to dismiss --  As noted above, this matter came on for hearing on June 2, 2009. The parties appeared by counsel. Before any evidence was taken, the Complainant's attorney moved for a continuance. As grounds, he represented to the ALJ and to opposing counsel that if a continuance was granted he would be making a request for a "Right to Sue" letter  (2)   from the EEOC, and that the Complainant would then drop the case with the ERD when that letter was received. The Respondents opposed the request for a continuance, but the ALJ agreed to it and adjourned the hearing.

Later that same day, though, the Complainant (through counsel) advised the Respondents and the ALJ that the circumstances having to do with getting a "Right to Sue" letter from the EEOC were in fact not as had been represented earlier that day, and that she wanted the matter returned to the hearing calendar. The Respondents objected to this and moved to dismiss the complaint because of it. The ALJ denied the motion to dismiss and rescheduled the hearing, but he ordered that if the case resulted in a back pay order, no back pay would be due for the period during which the hearing was delayed as a result of the Complainant's initial continuance request.

It appears that this situation occurred because at the time of the June 2, 2009 hearing, the Complainant's attorney, Mr. Birnbaum, had the belief that the EEOC had not yet issued a "Right to Sue" letter, and that he could therefore get one and pursue his client's case in federal court. Unfortunately, as was discovered later that same day, he had been mistaken: the EEOC had already issued a "Right to Sue" letter, almost two years before, on August 8, 2007. The 90-day deadline to commence a federal court action which was set running by the issuance of that "Right to Sue" letter had thus long since run, so the Complainant in fact had no opportunity to pursue the matter in federal court.

As noted above, in its petition for review the Respondents argued that the complaint should have been (and should now be) dismissed because of this matter involving the continuance request made on June 2, 2009. In support of this, the Respondents relied on two arguments. The first was that the Complainant had said that upon receipt of a "Right to Sue" letter she would withdraw her complaint with the ERD, that she had in fact received that letter so that the condition precedent to her promise to withdraw her complaint was met and therefore her complaint should to be treated as withdrawn. The second was that the Complainant "violated" the ERD's administrative rule regarding postponements (which states that postponement requests must be made by 10 days before the hearing except in emergencies, and shall only be granted for good cause and not for the parties' convenience).

LIRC is not persuaded by the Respondents' first argument. The Complainant's indication of an intent to withdraw her complaint was, it is undisputed, based on a material mistake, and it is the height of artificiality to ignore that. If the Respondents insist on an analysis that looks at whether the condition precedent for the Complainant to withdraw her complaint was met, it is more accurate to say that the condition precedent for her to withdraw her complaint was her receipt in the future of a "Right to Sue" letter. That condition could not be and never was met, so therefore there is no basis for treating it as having been and for deeming the complaint withdrawn on that basis.

The Respondents' second argument is, in effect, that if a party requests a postponement which should not be granted under the relevant rule, and the ALJ nevertheless grants the postponement, the party's complaint should be dismissed. Except in the limited situation in which a party or their counsel has intentionally lied to the ALJ about the grounds for the requested postponement, such that dismissal of the complaint could be appropriate as a sanction, it is difficult to see any justification for such a result. Here, there is no dispute that this was a mistake on Birnbaum's part, and not an intentional misrepresentation. Also, the sanction of dismissal seems grossly disproportionate to the conduct of simply asking, in good faith, for a postponement, especially where that request is then granted by the ALJ.

There is also another factor that, in the commission's view, weighs against the Respondents' motion to dismiss. It was not only the Complainant's counsel who made a mistake about the issuance of a "Right to Sue" letter, but also the Respondents' counsel. The file reflects that copies of the "Right to Sue" letter were sent by the EEOC to Respondents' counsel (and to the ERD, it should be noted) at the same time it was originally sent to Complainant's counsel in 2007. Thus, Respondents' counsel had just as much opportunity, and reason, to be aware of the existence of the 2007 "Right to Sue" letter, as did Complainant's counsel. While Respondents' counsel objected to Complainant's request for a continuance for the purpose of getting a "Right to Sue" letter, she did not point out that the request made no sense because the letter had been issued years before. Had she done so, there is no doubt that the postponement would not have occurred.

Finally, there was no demonstration of any specific prejudice to the Respondents from the relatively brief delay this matter caused in getting the case on for hearing. As noted above, the ALJ properly offered to modify any back pay order that might result in the case by the number of days of that delay.

For all these reasons, the commission rejects the Respondents' argument that the complaint should have been dismissed because of this matter involving the Complainant's continuance request.  

The merits -- As noted above, the Respondents' petition for review contends that the ALJ erred in finding that the Respondents violated the Act by eliminating the Complainant's position in part because of a perception that she was an individual with a disability. The Respondents' petition does not elaborate on this contention, and the Respondents did not file a further brief or a request to brief. Notwithstanding the lack of any specific argument by the Respondents in support of its contentions, the commission has carefully reviewed the evidence in the record and the findings made therefrom by the ALJ with respect to the Respondents' motives in deciding to eliminate the Complainant's position, to determine if they are supported. Based on that review, the commission is satisfied that the evidence supports the finding that Respondents' decision to eliminate the Complainant's position was at least in part motivated by Sierp's perception that the Complainant had a disability that limited her ability to travel safely.

The Complainant's petition for review argues that the ALJ erred in finding that the Respondents would have eliminated the Complainant's position even in the absence of its perception that she was disabled. The commission has considered the specific assertions the Complainant makes in support of this argument but finds them unpersuasive, for the following reasons.

The Complainant characterizes the ALJ's Finding of Fact 8 as "incorrect and incomplete," but the assertions she makes in that regard do not seem to the commission to differ materially from the ALJ's findings. Presumably, the point that the Complainant disagrees with, is the ALJ's finding that as of the beginning of 2004, the Complainant's "main value" to MCS was in doing refresher trainings for existing clients. However, the commission believes this is a fair characterization. This finding represents a finding as to the subjective views of the management of MCS as to what skills and abilities of the Complainant were of the most value to it. The Complainant may have had a different view on this, but the commission believes that the finding accurately reflects what the view of MCS was at that time.

The Complainant similarly characterizes the ALJ's Finding of Fact 13 as "incorrect and incomplete," asserting that as of April 29, 2004 Sierp had concluded that he was going to eliminate the Complainant's full-time position "as a result of his perception that [she] was disabled," disputing the ALJ's findings in subparagraphs (1), (2), (4), (5) and (6) as to other reasons that Sierp had drawn that conclusion. Notwithstanding the Complainant's contention that as of this time the number of Visual MCS trainings had not diminished, the point noted and found by the ALJ was that Sierp expected that they would be diminishing; the commission agrees that this is an accurate finding as to Sierp's actual subjective beliefs, and it believes based on the record that that was a reasonable belief for Sierp to hold. Furthermore, Complainant's contention that she could have learned and picked up "tasks related to PHA-web" and that Cox and Degner were equally inexperienced and untrained in PHA-web, ignores that this is a finding about the actual subjective considerations and motivations of Sierp in arriving at his decision and that those subjective considerations and motivations included other things -- described accurately in the ALJ's findings.

The Complainant's assertion that the ALJ's Finding of Fact 14 (that by April 29, 2004, "Sierp had not decided whether to terminate the Complainant's employment") is incorrect, and that he had in fact so decided, is unpersuasive. This, too, is a finding of fact about the subjective intentions of an individual (Sierp). While Sierp testified that he had decided by that point to eliminate the Complainant's then-current position, there remained the question of whether she would continue working for the Respondents in some other capacity. Sierp did in fact subsequently offer the Complainant work in a different position. The commission understands the ALJ's finding to be in this sense.

The Complainant's contention that the ALJ's Finding of Fact 21 was "incorrect and incomplete," and its contention that "Sierp's assessment of Complainant's employment and a decision to terminate her employment was motivated and made based on a perception that she was disabled," similarly fails to persuade the commission. This finding, which is at the heart of the ALJ's decision, is specifically a finding about Sierp's subjective intentions and motivations, and about what the factors were which led to his decision to eliminate the Complainant's full-time position (not, it should be noted, a decision to "terminate her employment" as the Complainant's petition asserts). The finding is supported by Sierp's testimony, and it reflects the fact that the ALJ credited that testimony as believable. The commission does as well. (3)

The Complainant's petition for review "objects generally to the ALJ's Findings of Fact as being incomplete in that they failed to acknowledge or render a finding regarding" a number of other matters, which the petition then recites. The commission simply does not believe that the record persuasively supports the matters asserted there.

The commission is satisfied that the evidence in the record supports the findings of the ALJ, including the findings as to the factors which motivated Sierp in making the decisions he did. For those reasons it adopts and affirms his decision, that although Sierp did make his decisions in part because of his perception that the Complainant had a disability, he was also motivated in making his decisions by other factors, which were unconnected with his perceptions about Complainant having a disability, and which would have led him to make the same decisions even in the absence of his perception as to Complainant's disability. 

Attorneys fees -- When this matter was before the ALJ, the parties disputed the amount of attorneys fees appropriate given the ALJ's decision on the merits. The Complainant sought a total of $53,888.05 in fees and $1,841.53 in costs. The Respondents argued that only a total of $18,775 in fees and costs (Respondents proposed reductions in both) should be allowed. The ALJ allowed the full amount of costs requested but reduced the fees allowed to $26,183.51.

Respondents' petition for review can of course be understood as reflecting the position that no attorneys fees at all should be awarded because there was (it asserts) no discrimination. The commission's decision to affirm the ALJ's finding of discrimination disposes of any such position. Apart from that, though, the Respondents' petition conspicuously did not raise any assertion that the ALJ erred in regard to the amount of the fees he allowed given his finding of a violation of the Act. The commission therefore finds that the Respondents have implicitly conceded the appropriateness of the ALJ's decision to reduce the fees and costs sought by the complainant only to the extent set out in his decision (as opposed to the greater extent sought by the Respondents).

Complainant's petition for review contained a request that LIRC:

[a]ffirm, with modification, that "Respondent shall pay to the Complainant reasonable and actual attorney's fees" pursuant to a modified Petition for Fees to include attorney fees and costs incurred throughout the appeal to LIRC and the defense of Respondent's appeal to LIRC.

This is solely a request for modification of fees to include fees incurred in connection with the review by LIRC. Nothing else in the Complainant's petition for review addresses attorneys fees. The commission therefore finds that the Complainant too has implicitly conceded the appropriateness of the (reduced) amount of fees allowed by the ALJ for the proceedings up to the point of his decision.

That leaves only the question of additional attorneys fees for work in connection with the review by LIRC. However, while the Complainant alluded to that in her petition for review, she has not satisfactorily established her right to such fees. While the Complainant's petition for review refers to a "modified Petition for Fees" to include fees for the LIRC review, it did not actually include such a modified petition. None was ever filed, nor was a request ever made that the commission fix a schedule for the submission of materials concerning additional fees. A party seeking an award of fees is expected to file a petition specifically describing the services performed and the fees sought therefor, and including supporting materials, see, e.g., Harper v. Menard, ERD Case No. CR200602401 (LIRC, Sep. 18, 2009). Because the Complainant did not make specific, supported request for any further fees, the commission will not order any. See, e.g., Haas v. Sark, ERD Case No. 199700130 (LIRC, Dec. 29, 1999), Schmocker v. County of La Crosse, ERD Case No. CR200002019 (LIRC, Mar. 21, 2004).


NOTE: As noted above, this case was before the commission several years ago on appeal from a decision of another ALJ, that the evidence which had been presented to that ALJ in a 2006 hearing had not established probable cause to believe that discrimination had occurred. The commission's decision at that time was that there was probable cause.

It is important to note that the decision the commission is now rendering in this case is made on the basis of a different evidentiary record. In arriving at its decision in the instant case, the commission has not reviewed or considered any of the evidence which was taken at the 2006 hearing.

It is also important to note that a different ALJ presided at that 2009 hearing in this matter, and that it is a decision by that ALJ which the commission reviews here. As noted above, this case involves questions of fact about the subjective intentions and motives of the Respondents' agents, particularly Sierp. While resting in part on inferences which can be drawn from the circumstances of the case, those findings also reflect the decision of the trier of fact on whether to credit the direct assertions by those agents as to what their subjective intentions and motives were. It is appropriate for the commission to accord some deference to the ALJ's assessment in such cases, see, Hoell v. Narada Productions, ERD Case No. 8952746 (LIRC, 12/18/92), and the commission does so here.

Finally, the burden of proof which had to be applied in this case was a different one than applied in the previous proceeding to determine if there was probable cause. In a proceeding on the issue of probable cause, the burden of proof is not a "preponderance of the evidence" test, as it is here. Boldt v. LIRC and GM, 173 Wis. 2d 469, 475-76, 496 N.W.2d 676 (Ct. App. 1992). The standard of proof in a proceeding on the issue of probable cause, has been described as "low." Ibid. That lower burden was not in effect here.

Attorney Jessica T. Kirchner, O'Flaherty Heim Egan & Birnbaum Ltd.
Attorney Cheryl M. Gill, Johns, Flaherty & Collins, S.C.

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(1)( Back ) Initially, the complaint alleged sex, disability and age discrimination, but in November 2006 the Complainant dropped her claims of sex discrimination. In addition, while the complaint had initially named four respondents, the Complainant subsequently agreed to have two of the named respondents dropped; the two that remained are the ones noted in the caption above.

(2)( Back ) This document, an EEOC form, is actually entitled "Dismissal and Notice of Rights."

(3)( Back ) The Complainant also contends that the ALJ's Finding of Fact 25, that "[t]he termination of [the Complainant's] employment was not based on a perception that she was disabled," was incorrect. However, this Finding follows directly from Finding of Fact 25, and the commission agrees with it for the same reasons.


uploaded 2012/02/22