State of Wisconsin

Labor and Industry Review Commission

Patricia A Williams	Fair Employment Decision
Complainant
State of Wisconsin - DVR
Respondent
	Dated and Mailed:
ERD Case No. CR201300928	June 8, 2017
EEOC Case No. 443201300877C

The decision of the administrative law judge is set aside and remanded for a hearing on the question of jurisdiction, and for further proceedings as warranted.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson
	/s/
	David B. Falstad, Commissioner

Memorandum Opinion

The complainant filed a complaint alleging that she was employed by the respondent as a vendor/contractor and that the respondent terminated her contract on July 10, 2012, for discriminatory reasons. A preliminary determination issued by an equal rights officer for the Equal Rights Division of the Department of Workforce Development found that the Division lacked jurisdiction over this matter because the complainant was an independent contractor. The complainant filed a timely appeal and the matter was assigned to an administrative law judge. Based on a review of written documents submitted by both parties, but without holding a hearing, the administrative law judge agreed that the complainant was an independent contractor and issued an order dismissing the complaint for lack of jurisdiction. The case file contains no indication that the parties were offered an opportunity for hearing. The complainant filed a timely appeal of that decision and the matter is now before the commission.

A preliminary question arises in this matter as to whether it was appropriate to dismiss the complainant's complaint on a jurisdictional basis without first holding a hearing. While Wis. Admin. Code § DWD 218.05(3), which governs appeals of preliminary determinations, does not expressly provide for hearings, it contemplates a process in which the complainant's allegations are assumed to be factually true for the purposes of analyzing the legal sufficiency of the complaint. Carrying out this process without a hearing is acceptable only because it involves assuming that the facts are as alleged by the complainant. Bedynek-Stumm v. City of Madison, ERD Case No. CR200003354 (LIRC Nov. 30, 2001). In this case, the administrative law judge dismissed the complaint based upon findings that were contrary to the version of facts offered by the complainant and which in some instances appeared to contemplate an adverse assessment of the credibility of the complainant's claims. Applying the considerations discussed in Bedynek-Stumm, the commission concludes that the administrative law judge erred in dismissing this matter on jurisdictional grounds without holding a hearing.

The commission further notes that, even where a hearing is not strictly necessary, a matter that is as fact-intensive as this is best resolved through a hearing rather than based solely on a paper review. While jurisdictional issues have been decided without a hearing in prior cases (for example, Sneed v. Milwaukee Board of School Directors, ERD Case No. CR200201543 (LIRC June 17, 2003), the commission favors the approach taken in Berglund v. The Post Crescent Company, ERD Case No. 199900817 (LIRC Jan. 31, 2001), in which the administrative law judge noted that the independent contractor status question was one that could only be determined after hearing, or in Watt v. Fedex Ground Package System Inc., ERD Case No. CR299299153 (LIRC Aug. 31, 2004), where the administrative law judge dispensed with the hearing only after the parties agreed to resolve the matter without hearing and based upon submissions to the Equal Rights Division.

With these concerns in mind, the commission has concluded that the issue presented in this case is not one that can be resolved without benefit of a hearing. The matter is therefore remanded for further proceedings.

cc: Attorney Sheri Pollack