The Department issued an initial determination in this matter finding no probable cause to believe that discrimination occurred.  The Complainant filed a timely request for hearing to review that determination pursuant to IND. 88.035(1).  The examiner made the decision that the request was not sufficiently specific to comply with IND 88.035(1) and requested that the Complainant detail in writing the specific grounds upon which review was sought within ten (10) days.  That requirement was not met and the examiner refused to hold a hearing and recommended that the case be dismissed.

 We decline to follow that recommendation and are ordering that the matter be remanded to the Equal Rights Division for further proceedings.

It has been the established practice in the Department to extend to unrepresented complainants the right to a hearing upon the filing of a timely request.  We have not held complainants, who lack legal counsel, to the strict requirements of IND 88.035(1).  To do so, we believe, would work an undue hardship upon complainants.  The right to such a hearing should not be conditioned upon the ability of lay persons to draft specific grounds for review.

Wis. Stat. 227.07 provides in part:

"Prior to the final disposition of any contested case, all parties shall be afforded opportunity for full, fair public hearing after reasonable notice..."

In Daly v. Natural Resources Board, 60 Wis. 2d 208, 208 N.W.2d 839 (1973) the Wisconsin Supreme Court interpreted the phrase "contested case" as being a matter wherein: (1) a hearing is required by law; (2) legal rights, duties or privileges are determined or adversely affected and; (3) the assertion of those rights must have been denied or controverted by another party.  That definition is met in this case and the complainant is clearly entitled to a full hearing within the meaning of Wis. stat. 227.07.

While we appreciate the need of defining issues prior to hearing, we believe that need can be met through the use of prehearing conferences or other devices available to examiners.

The Federal courts have adopted a similar stance with regard to charges filed with United States Equal Opportunity Commission under Title VII of the Civil Rights Act of 1964.  Choate v. Caterpillar Tractor, 40 F.2d 357, 359 (7th Cir. 1968); Miller v. Continental Can, __ F. Supp. __ (S. D. Ga. 1973).

The mandates of procedural due process as well as the spirit and intent of Chapter 227, Wis. Stat. will be served by the provision of a hearing in this matter.

Based upon the Memorandum Decision and the record herein, the Department makes the following:


That the above entitled matter be remanded to the Equal Rights Division for hearing pursuant to IND 88.035.

Dated and mailed March 11, 1975

/s/ John C. Zinos, Chairman

/s/ William A. Johnson, Commissioner

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