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

IVAN FICKEN, Complainant


ERD Case No. CR200003282, EEOC Case No. 26GA10633

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a ruling on a motion to dismiss 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 parties' submissions to the ALJ. Based on its review, the commission agrees with the ruling of the ALJ, and it adopts it as its own.


The ruling of the administrative law judge (copy attached) is affirmed, and this matter is dismisssed.

Dated and mailed February 7, 2003
fickeiv . rsd : 115 : aty  

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


In his complaint of age and sex discrimination, complainant contests his discharge by respondent as well as respondent's alleged refusal to accept complainant's offer to work as an unpaid volunteer. The ruling under consideration here relates solely to the volunteer offer allegation. The discharge allegation was separately processed by the department.

In an Initial Determination dated August 3, 2001, an investigator for the Equal Rights Division determined that there was no probable cause to believe that complainant had been discriminated against as alleged in regard to the volunteer offer allegation. Complainant appealed this determination. Prior to hearing, respondent filed a motion to dismiss for failure to state a claim for relief. The ALJ to which the motion was assigned granted this motion in a ruling dated August 9, 2002. Complainant filed a petition for commission review of the ALJ's ruling.

An ALJ or the commission may dismiss a complaint prior to hearing on a motion to dismiss for failure to state a claim for relief if it appears that, even if what is claimed by the complainant is true, a decision in favor of the respondent is nevertheless required as a matter of law. Olson v. Lilly Research Laboratories, ERD Case No. 9001499 (LIRC June 25, 1992); Tucker v. County of Rock, ERD Case No. 9001178 (LIRC July 2, 1992)

Complainant was employed by respondent for a short period of time as a customer service representative (CSR), processing glass insurance claims. From October 25 to November 12, 1999, complainant served as a trainee; and from November 15- 17, 1999, as a CSR on the call center floor. The complainant has alleged here that, subsequent to being notified on November 17, 1999, that a decision had been made to terminate his employment because his call processing time did not meet performance standards, (1) he offered to work as an unpaid volunteer until his processing time improved sufficiently. Complainant further contends that, as of November 29, 1999, he understood that respondent had not accepted his offer to work as a volunteer.

As described by complainant, his offer may be characterized in one of two ways: as a request for reconsideration of respondent's decision to terminate him, or as an unsolicited request to do unpaid volunteer work for an indefinite period of time. Neither of these survives the present motion to dismiss.

If viewed as a request for reconsideration, complainant's offer would not give rise to a separately cognizable claim or cause of action, i.e., the termination action would remain the sole adverse employment action at issue. Complainant's charge relating to respondent's termination of his employment has been separately processed by the Equal Rights Division and is not before the commission as a part of its review of the present petition.

If viewed as an unsolicited request to do unpaid volunteer work, complainant's offer does not support a conclusion that he has successfully stated a claim for relief under the Wisconsin Fair Employment Act (WFEA).

First, complainant would not be able to establish a prima facie case of discrimination under the WFEA by relying upon such a claim. In Puetz v. Labor & Industry Review Commission (LIRC), 126 Wis. 2d 168, 376 N.W.2d 372 (Ct. App. 1985), the court indicated that it was appropriate in WFEA cases to utilize the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed. 2d 668 (1973) for analysis of Title VII cases. In McDonnel Douglas, the Court stated as follows:

The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

In Payne v. City of LaCrosse, ERD Case No. 8103749 (LIRC August 14, 1984), aff'd Payne v. LIRC, 1986 Wis. App. LEXIS 3484 (Unpublished Ct. App. 1986), the commission followed this rationale in concluding that a complainant who had applied for a position that was not vacant or otherwise available at the time failed to establish a prima facie case of discrimination. Here, complainant has not asserted nor is it reasonably implied from the information he has provided that respondent was seeking applicants for CSR positions in general, or for the CSR position from which he had been terminated specifically, and that complainant presented his offer as a result. The commission concludes that complainant would be unable therefore to establish the second prong of the prima facie case.

More importantly, application for service as a volunteer, or even actual service as a volunteer, does not satisfy the WFEA's definition of "employee," a prerequisite for coverage under the Act. In Moore v. LIRC, 175 Wis. 2d 561, 499 N.W. 2d 288 (Ct. App. 1993), the court held that the standard to be used to determine whether a person is an employee under the WFEA is the same standard as that used in making such a determination for purposes of Title VII. Title VII cases have uniformly held that compensation is an essential condition in the employee/employer relationship, and a person who is not eligible for compensation does not qualify for Title VII coverage. See, e.g., York v. Ass'n of the Bar, 286 F.3d 122, 88 FEP Cases 833 (2d Cir. 2002); Jacob-Mua v. Veneman, 289 F.3d 517, 88 FEP Cases 1305 (8th Cir. 2002). In Langer v. City of Mequon, et al., ERD Case No. 199904168 (LIRC March 19, 2001), the commission held in pertinent part that:

The Fair Employment Act prohibits discrimination in employment. Where, as here, the complainant was not on the respondents' payroll and received no tangible benefit in exchange for her services for the respondents, it cannot be said that she was in an employment relationship with either of the two named respondents.. Consequently, the commission sees no basis to conclude that her claim falls within the purview of the Act. The dismissal of the claim, is, accordingly, affirmed.

Complainant, as a matter of law, would be unable to prevail in this action and, accordingly, respondent's motion to dismiss should be granted.

Complainant offers other contentions in his petition. He argues that the equities present here, in particular the financial hardship his unemployment caused for his family, should lead the commission to deny the motion to dismiss. However, as an administrative agency, the commission has only those powers expressly conferred or reasonably implied from its statutory grant of authority. The commission is not a court of equity and may not grant relief on that basis, no matter how compelling.

Finally, complainant contends that respondent destroyed the letter in which he presented his offer to work as an unpaid volunteer. However, since it has been assumed for purposes of resolving this motion that, as complainant has represented, this offer was made by complainant and not accepted by respondent, this contention, at least as it relates to the present ruling, is irrelevant

cc: Attorney Laura S. Ferster

Appealed to Circuit Court. Appeal dismissed on procedural grounds, September 16, 2003. Appealed to the Court of Appeals. Affirmed, summary unpublished decision, August 2, 2004.

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(1)( Back ) Respondent contends that complainant was terminated not only for his insufficient processing time, but also for his resistance to supervision.


uploaded 2003/02/14