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

JOSEPH E SABOL, Complainant


ERD Case No. CR200303174, EEOC Case No. 26GA302070

An administrative law judge 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 administrative law judge. Based on its review, the commission issues the following:


The Decision On Motion issued by the administrative law judge on February 4, 2005, is set aside, and the matter is remanded for a hearing and decision on the merits of the complaint.

Dated and mailed January 31, 2006
saboljo . rrr : 164 : 9

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


The complaint in this matter alleges that the complainant was not hired for any of four academic staff positions at the University of Wisconsin, Eau Claire, for which he was qualified, and that this was in retaliation for having filed previous complaints with the Personnel Commission. Prior to the hearing the respondent filed a motion to dismiss, arguing that past administrative decisions had preclusive effect on some of the complainant's allegations and, further, that the complainant could not establish a prima facie case of discriminatory refusal to hire because the positions were filled through a non-competitive hiring process, which the respondent asserted did not constitute an adverse action against the complainant. The administrative law judge granted the motion to dismiss on the theory that the complainant had failed to state a claim upon which relief could be granted.

Dismissal of a complaint prior to hearing is appropriate where, even if the facts alleged by the complainant were proven, they would not amount to a violation of the Wisconsin Fair Employment Act (hereinafter "Act"). Dunn v. City of Burlington Engineering Department (LIRC, July 28, 1995). However, the authority to dismiss a complaint without hearing only extends to circumstances where it appears that, based upon the assertions in the complaint, there is simply no way the complainant could prevail. A motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. (1)  Reddin v. Neenah Joint School Dist. (LIRC, Aug. 24, 2004); Jackson v. MATC and AFT (LIRC, July 16, 2003).

The complaint in this case centers around the respondent's decision to fill several academic positions without opening them up to competitive bidding. The administrative law judge found that, even if the complainant's allegations were true, the respondent's actions could not be discriminatory, since all potential candidates, even those not engaging in protected activity, were treated the same. The administrative law judge opined that no candidates were made aware of the openings and that this could hardly be considered retaliation against the complainant. The commission disagrees. The complaint alleges that the respondent knew the complainant was qualified for the positions at issue, but ignored its own past practice, which was to contact qualified persons who had previously taught chemistry and to advertise in local and regional newspapers, so that he would not be aware of and would not apply for the positions. The complainant maintained that the respondent did so in retaliation for his having engaged in protected activity. This allegation, if it could be proved, would state a claim for relief under the Act. The fact that the positions were filled non-competitively and that the complainant was treated the same as other people who also did not get to apply does not exonerate the respondent if, as the complainant alleges, it deliberately failed to adhere to its usual procedures in order to keep him from applying for positions for which it knew he was qualified, and did so in retaliation for his having engaged in protected activities.

Having concluded that the complainant's allegations do, in fact, state a claim for relief under the Act, the commission has also considered the respondent's argument that some of the complainant's claims are barred by prior decisions. The commission finds no merit to this argument. The burden of proving claim preclusion is upon the party asserting its applicability. In order for an earlier action to act as a claim preclusive bar to a subsequent action the following factors must be present:

(1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and (3) a final judgment on the merits in a court of competent jurisdiction.

Taylor v. St. Michael Hospital (LIRC, May 31, 2001), citing Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 551, 525 N.W.2d 723 (1995).

The instant complaint involves an identity of parties, but not an identity of causes of action. The prior decisions which the respondent contends should have preclusive effect are Case No. 01-0079-PC-ER, which concerned four academic staff positions arising between 1999 and 2001, three of which were filled by Darlene Campbell, and Case No. 01-0150-PC-ER, which addressed a 2001-2002 position which was offered to William Haag. In the instant case, the complainant alleges, in relevant part, that the respondent failed to hire him for a fall 2002 instructional academic staff position which was offered to Ms. Campbell, and for a 2002-2003 teaching academic staff position which was offered to Mr. Haag. While the prior decisions may have involved positions identical to those at issue here in terms of their job title and duties, they involved different academic years and separate hiring processes. A finding of no discrimination in previous cases involving different fact situations cannot stand as a bar to these claims.

The respondent also maintains that issues decided in the prior proceedings should be given preclusive effect in the instant case. Specifically, the respondent makes reference to the Personnel Commission's finding that it followed a long-standing practice of appointing Ms. Campbell to positions on a recurring basis, and that it was not reasonable to conclude that its repetition of this pattern was done to retaliate against the complainant. The respondent apparently believes that this ruling forecloses any new claim that rehiring staff without a competitive search can be discriminatory. However, the Personnel Commission's decision on the respondent's motion for summary judgment, which relied upon a different set of legal standards than that used in determining whether a complaint sets forth a claim upon which relief can be granted, does not establish as a matter of law that rehire based upon a non-competitive search can never be discriminatory, and it cannot be assumed that the complainant will be unable to prove other facts at the hearing which would warrant a different outcome.

For the reasons set forth above, the commission believes that the complaint did state a claim under the Act and that the complainant should have been given an opportunity to make his case. The commission has, therefore, set aside the administrative law judge's dismissal and remanded this matter to the Equal Rights Division for a hearing on the merits.

cc: Attorney Christopher L. Ashley

Appealed to Circuit Court.  Appeal dismissed September 22, 2006.  Appealed to the Court of Appeals. Dismissal of appeal affirmed in unpublished opinion, October 3, 2007.

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(1)( Back ) Cases in which the commission has found that there were no circumstances in which the complainant could prevail based upon the allegations in the complaint have generally involved situations in which the conduct alleged to be discriminatory was not covered under the Act. See, for example, Graham v. Lisas Flower and Gift Shop (LIRC, Jan. 19, 2001), in which the complainant alleged she was harassed, not because of any protected status, but because the employer was facing financial troubles and hoped to force her to quit; Harris-Wright v. Chrysler Motors (LIRC, Feb. 20, 2001), in which the complainant made a number of allegations against the employer, including medical malpractice, fraud, the denial of worker's compensation and social security benefits, death threats and blackmail, but did not allege discriminatory conduct; Hellerude v. State of WI-DILHR (LIRC, March 25, 1996), in which the complainant attempted to challenge the validity of an administrative rule concerning the inspection of fire extinguishing systems; Ficken v. Harmon Solutions Group (LIRC, Feb. 7, 2003), in which the complainant alleged that he was denied the opportunity to perform unpaid volunteer work; and Dunn v. City of Burlington Engineering Department (LIRC, July 28, 1995), in which the complainant alleged that the respondent expected older workers to work at the same pace as younger workers, a matter which the commission interpreted as a request for preferential treatment not required by the Act.


uploaded 2006/02/03