Wisconsin Labor and Industry Review Commission --
Wisconsin Court Decision relating to the Wisconsin Fair Employment Act

This is a verbatim reproduction of James B. Marshall v. Industrial Commission (Dane Co.  Cir.  Ct. , Case No.  120-078, February 23, 1967), 1 EPD para. 9772. 


MALONEY, C. J.: This is an action to review findings and order of the Industrial Commission, dated April 6, 1966, which, after reconsideration of a previous order finding probable cause, reversed the order of December 3l, 1964, and dismissed the complaint, which had alleged that the petitionerís employment with Ace Foods, Inc. had been terminated because of his race or color.

Upon the stipulation of the parties, by their attorneys, and upon the agreement of the Industrial Commission to revise IND. 88.08(2) (c) to provide that the quantum of proof required to support a finding of probable cause is as defined in this opinion, this controversy is remanded to the Commission for further proceedings consistent with this opinion.

[Probable Cause]

Probable cause as used in Sec. 111.36(3), Stats., must be construed to mean such a state of fact in the mind of the Commission, based upon competent evidence as would lead a quasi-judicial officer to believe within reasonable probabilities that the Respondent is guilty of unlawful discrimination. Competent evidence is that which is worthy of consideration in any aspect, but of course would have to be such as would be admissible in some form at the hearing.  State ex rel Wojtycski v. Hanley (1945) 248 Wis. 108, 111;  State v. Whatley (1933) 210 Wis. 157, 160. Probable cause does not mean proof to a reasonable certainty by a preponderance of the evidence. It does mean proof within reasonable probabilities that a full hearing will establish the fact to a reasonable certainty by a preponderance of the evidence

A review of the findings of fact  and of commission rule IND. 88.08(2)(c) leads this Court to the conclusion that it would be speculative to determine what standard of evidence was required by the Commission from the Petitioner to sustain a finding of probable cause. This matter is remanded in order that the Commission may reconsider all of the facts in the record before the Commission, make its determination of probable cause or no probable cause, and clarify the record as to the quantum of proof used.

[Commission Procedure]

Section 111.36(3), Stats., requires four procedural steps before a finding of discrimination or no discrimination can be made. First, there must be a complaint filed with the Commission. The Commission must then determine if there is probable cause to believe that unlawful discrimination has been or is being committed. If the Commission determines that the evidence is not such as to show probable cause, the Commission may dismiss the complaint. At this point, the complainant may avail himself of his right of judicial review under Chapter 227, Stats. The Commission may resort to formal hearing as an aid in determining the existence of probable cause. Sec. 111.33, Stat.s, 111.36(2), Stats. The sole question that can be determined at a hearing at this stage is the question of probable cause and the complainant is only required to introduce such evidence as to show probable cause. The Commission is not to weigh the testimony by balancing the credibility of the witnesses, but rather merely determine whether complainantís evidence is believable.

If the Commission determines that there is probable cause, then it must immediately endeavor to eliminate the practice by conference, conciliation or persuasion. In case of failure so to eliminate the discrimination suspected, the Commission shall issue and serve a written notice of hearing. This hearing must be a hearing upon the merits and both parties must be given an opportunity to introduce any admissible evidence  favorable to their position.. After such hearing, the Commission must then make a determination by a preponderance of the evidence of whether there was discrimination, and if there was a failure of proof dismiss the complaint.

[Prior Hearing]

In this case, the Commission held hearings October 9, 10, 11 and November 18 through 22, 1963. An extensive record was made and numerous exhibits were introduced into evidence. If upon remand the Commission determines that there is probable cause, the Commission then must require the Respondent to appear at a hearing as required by Sec. 111.36(3), Stats.  The Commission, however, may make the record and exhibits of the 1963 hearings a part of the record and may limit the introduction of evidence and exhibits to new evidence and exhibits pertinent to the issues before the Commission. Sec. 227.10, Stats.

The Attorney General has urged that the Petitioner has had an extensive opportunity for hearing and that at such hearings he was urged to introduce all the evidence favorable to his position. In view of the fact that the Petitioner was legally required to introduce only such evidence as would establish probable cause, this Court cannot speculate that he introduced all the evidence which might have probative value. If the evidence introduced by Petitioner was sufficient to meet the requirement of probable cause, then Petitioner would be denied a valuable right if he were not given an opportunity at a hearing required by statute to present such additional evidence as would prove unlawful discrimination if such evidence does in fact exist.

Counsel for the Petitioner may prepare the appropriate Order, submitting same to opposing counsel 10 days before presenting it to the Court for signature.


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uploaded 2009/02/20