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



ERD Case No. 199603244, EEOC Case No. 26G961998

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.


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

Dated and mailed December 10, 1997
newtora.rsd : 164 : 9

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner


In her petition for commission review and supporting briefs the complainant argues that the procedure utilized by the administrative law judge in this case was flawed. The complainant contends that it was premature for the administrative law judge to resolve this matter on a motion to dismiss and that she was entitled to a hearing. The commission disagrees. A complaint under the Wisconsin Fair Employment Act (hereinafter "Act") may be dismissed prior to hearing when it appears that, even if what is claimed by the complainant is true, there would be no violation of the Act. While an administrative law judge may hold a hearing to allow the parties to establish facts which may have a bearing on whether the complaint should be dismissed, this determination may also be made based upon the documents and affidavits presented by the parties. Wis. Admin. Code ILHR 218.10.

The question before the commission is whether any factual dispute exists as to whether the complainant was discharged due to a religious reason, or if a hearing is warranted in order to determine whether the religious-based reason for the complainant's discharge was simply a pretext to cover for some other prohibited basis of discrimination. Based upon its review of the complaint and other allegations made by the complainant in her briefs and her sworn affidavit, the commission concludes that the complainant has raised no true allegation of pretext and that there is no disputed issue of material fact such as might require a hearing in this case.

The complaint alleged that the complainant was told by the respondent that her discharge was because she failed to uphold Catholic principles by entering into a marriage with a non-Catholic, which the respondent deemed a non-sacramental marriage. In her sworn affidavit submitted in response to the motion to dismiss, the complainant freely acknowledged that she contractually agreed to uphold the teachings of the Catholic Church, and that conduct not in keeping with those principles, specifically including "non-sacramental marriage," would be grounds for her dismissal. Given this factor, and considering the complainant's express acknowledgment that she was discharged after she stopped participating in Catholic worship and activities and married outside the Catholic Church, there is no reason to doubt that the decision to discharge the complainant was ecclesiastically based.

Moreover, while in her brief to the administrative law judge and accompanying affidavit the complainant contended that the real reason for her discharge was not religious, but was based upon her relationship with a convicted criminal and the school's concern with appearances, the complainant specifically abandoned this allegation in her brief to the commission. The complainant now maintains that the "pretext" to which she refers is not that she was discharged based upon her husband's criminal record, but relates to the fact that her "relevant religious beliefs were inappropriately utilized as a basis to terminate her, which was violative of the Wisconsin Fair Employment Act in itself." However, for the purposes of the Act, a "pretext" refers to a neutral sounding reason offered for a discharge or other adverse employment decision in order to conceal discrimination of a type specifically prohibited by the Act, such as discrimination on the basis of race, age, or handicap. That the complainant may believe her non-sacramental marriage was "inappropriately used" to discharge her does not suggest that the reason for her discharge was a discriminatory one.

The complainant's main argument in this case seems to be that her marriage was not really non-sacramental, because she was no longer a practicing Catholic at the time she married outside the Catholic Church. To this end, the complainant maintains that the respondent should be required to demonstrate what a non-sacramental marriage is, according to an objective Catholic text, before this matter can be dismissed. However, the question of whether the complainant's marriage was truly "non-sacramental" pursuant to the tenets of the Catholic faith is the very type of issue which the State may not reach. Indeed, in order for the Division to decide this question it would be required to assess, evaluate, and possibly challenge aspects of the respondent's religious philosophy in a manner that would clearly be inconsistent with the mandates of the Free Exercise Clause and Establishment Clause of the First Amendment of the United States Constitution.

Because this case presents no genuine issue of fact as to whether the complainant's discharge was for an ecclesiastical reason or whether the religious reason offered for her discharge was a pretext for illegal discrimination, the dismissal of the complaint was appropriate. Accordingly, the administrative law judge's order is affirmed.

Thomas J. McClure
Bruce B. Deadman

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