ALLEN BEDYNEK-STUMM, Complainant

CITY OF MADISON, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued an Order From Appeal Of Preliminary Determination in this matter. A timely petition for review was filed.

Based on its review, and for the reasons set forth in the Memorandum Opinion attached hereto, the commission now makes the following:

The Order From Appeal Of Preliminary Determination issued by the Administrative Law Judge in this matter on August 31, 2001, is set aside, and this matter is remanded to the Equal Rights Division for further proceedings.

Dated and mailed November 30, 2001
bedynek . rpr : 110 :

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The adverse employment action complained of in the complaint in this matter was a refusal to hire, which the complaint states the Complainant was informed of on September 13, 1999. The Equal Rights Division first received the complaint on September 27, 2000, which is of course more than 300 days after September 13, 1999. However, the complaint, and the cover letter which the Complainant submitted with it, both allege that the Complainant had first filed a complaint concerning the matter with the Madison Equal Opportunities Commission (MEOC), in November, 1999. That is significant, because the ERD has a worksharing agreement with the MEOC, and the ERD's rules provide:

DATE OF FILING OF COMPLAINT DEFERRED BY ANOTHER AGENCY. A complaint which is deferred to the department by a federal or local employment opportunity agency with which the department has a worksharing agreement complies with the requirements of sub. (3) and is considered filed when received by the federal or local agency.

Wis. Admin. Code Ch. DWD 218.03(5) (emphasis added). See also, Keup v. Mayville Metal Products (LIRC, 06/22/95) (complaint filed at the EEOC within the required time held to also be timely under the WFEA).

Specifically, the Complainant had stated on the "Equal Rights Complaint Process Information" page of the complaint form, that he had filed a complaint with the Madison Equal Opportunities Commission on November 24, 1999. He also stated, "See Enclosed Forms of Madison EOC". In addition, the complaint which the Complainant filed with the ERD on September 27, 2000, was accompanied by a letter which stated, in part:

As the enclosed documents attest, I was assisted in filing these matters with the City of Madison's Equal Opportunities Commission. I received various forms, and was appraised that the above case numbers were assigned my initial Complainant responses per telephone conversations.

I recently checked with this office, i.e., with "Tracy", who informed me that the filing of such Complaint with the City of Madison would be a conflict of interest. The distinct impression was one of then having had this Complaint referred to another office, e.g., ERD.

I provided the above numbers in my efforts to track the progression of my matters, and was told by "Tracy" that the above numbers were assigned another individual, and she had no further knowledge as to where matters now stood.

When I contacted the ERD Office they could find no referral matters regarding the above Case Nos., and suggested I complete ERD Forms, and submit the (with the Madison EOC Forms) material to them.

The ERD Equal Rights Officer to whom the matter was assigned contacted the MEOC and was told that its records showed that the MEOC case number which the Complainant had listed in his complaint with the ERD was assigned to a case involving a different person, and that the MEOC had no records of Complainant having filed a complaint with it. Based on that and on other information he gathered from the Complainant and the MEOC, the Equal Rights Officer issued a Preliminary Determination And Order under Wis. Admin. Code Ch. DWD 218.05, finding and concluding that the complaint was untimely. The rationale of this determination was that the Complainant's contention that he had filed a complaint with the MEOC was "not substantiated".

The Complainant appealed. The ALJ conducted a "record review" only; there was no further submission of information, and no hearing. Following this review, the ALJ issued his decision in which he stated that there was "no documentation" that the Complainant had filed a complaint with the MEOC, and that "the information available indicates that the MEOC has no record of [Complainant] having filed a complaint . . . in November of 1999, and there is no record that any discrimination complaint from [Complainant] . . . was forwarded from the MEOC to the ERD". In making these findings, the ALJ relied significantly on a letter sent to the ERD's Equal Rights Officer by an investigations supervisor for the MEOC. On that basis, the ALJ decided that the complaint was not timely and ordered that it be dismissed. The Complainant filed a petition for commission review.

Discussion -- The problem which the commission sees with what occurred here, is that the question of whether the Complainant filed a complaint with the MEOC in November, 1999, was clearly a question of fact, yet that question was resolved against him - with the result that his complaint with the ERD was dismissed - without a hearing.

The commission recognizes that DWD 218.05(3), which governs appeals of preliminary determinations, does not expressly provide for hearings. That, however, is related to the process which is contemplated by that section. DWD 218.05 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. Where the result of that process is a determination that the complaint is legally insufficient, a complainant will have no grounds to complain about their version of the facts having been rejected without a hearing, because their version of the facts will have been assumed to have been true for purposes of carrying out the legal analysis.

Carrying out this process without a hearing is acceptable precisely because, and only because, it involves assuming that the facts are as alleged by the complainant. The commission believes that where a decision that a complaint is legally insufficient is based on a version of the facts that is contrary to that alleged by the complainant, there is a need for a hearing.

This is a matter of fundamental due process. It has long been recognized that an administrative appeals procedure under the Fair Employment Act which provided only an oral argument and a record review of an initial determination of no probable cause would constitute a denial of due process. Warren v. DILHR (Mt. Sinai Hospital) (Dane Co. Cir. Ct., 12/21/70). The same considerations govern, the commission believes, in the case of appeals of Preliminary Determinations which turn on disputed factual issues.

In addition, dismissing a complaint based on rejection of a complainant's version of the facts without even giving the complainant a hearing, would also be contrary to Chapter 227. That Chapter provides that in addition to any other right provided by law, any person shall have a right to a contested case hearing if, among other things, a substantial interest of the person is injured by agency action and there is a dispute of material fact. Wis. Stat. § 227.42(1). A substantial interest of a person is certainly injured when the agency decides to dismiss their complaint. Where a dismissal decision is based on a version of the facts that is materially different from the version being advanced by the party, and where under the version of the facts being advanced by the party their complaint would not be dismissed, § 227.42(1) requires a hearing.

For these reasons, the commission concludes that DWD 218.05(3) must be interpreted as requiring a hearing before a complaint can be dismissed on the basis of a version of the facts contrary to that asserted by the complainant.

Because the ALJ rejected the Complainant's assertions about having filed with MEOC without providing an opportunity for hearing, the commission must set aside the ALJ's decision and remand this matter to the ERD for further proceedings. On remand, the ERD may conduct a hearing which is limited to the question of whether the Complainant did indeed file a complaint with the MEOC in November, 1999 as he asserts; alternatively, it may conduct a hearing which addresses this issue and which also addresses, provisionally, the merits of the complaint. In either case, the ERD may treat the burden of proof to establish that the Complainant filed a complaint with the MEOC in November, 1999, as being on the Complainant. What the ERD may not do, however, is to reject the Complainant's factual assertions about having filed with MEOC without providing him an opportunity for hearing on that matter.

NOTE: The City of Madison, which operates the MEOC, was also the Respondent named in the complaint in this matter. Thus, the information on the basis of which the Equal Rights Officer and then the Administrative Law Judge decided that the Complainant had not filed with the MEOC, was provided to the ERD by the very party against which the complaint had been filed and which benefited from the decision that the complaint should be dismissed.

This circumstance makes the failure of the ERD to provide the Complainant an opportunity for a hearing even more problematic. However, the commission wishes to emphasize that its decision in this case does not depend on that circumstance. Even if the ERD's decision to reject the complainant's version of the facts had been made without reliance on information provided by the City, it would still have been improper because of the failure to provide a hearing. As noted above, the question of whether the Complainant filed a complaint with the MEOC in November, 1999, was clearly a question of fact. He asserted that he did. The ERD should not have rejected that assertion without providing the Complainant an opportunity for hearing.

cc: Attorney Steven C. Zach

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