JENNY LEE, Complainant
NATIONAL CONFERENCE OF BAR EXAMINERS, Respondent
An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in the above-entitled matter which ordered the dismissal of the complainant's complaint. The complainant filed a timely petition for review.
The commission has considered the petition and the positions of the parties. Based upon its review, and for the reasons set forth in the attached Memorandum Opinion, the Labor and Industry Review Commission issues the following:
1. That insofar as the decision of the administrative law judge concludes that it was not improper for an ERD investigator to have refused to consider and make findings or a determination on the complainant's allegations concerning her suspension and termination from the respondent in the absence of a complaint or any amendment on file raising those issues, this determination is reversed and the matter is remanded to the Equal Rights Division for an investigation and determination on those allegations.
2. The administrative law judge's determination that the complainant lost her right to proceed before the Equal Rights Division with respect to a probable cause hearing on the question of whether the respondent violated the WFEA by discriminating against her in compensation or in her terms and conditions of employment because of her age, race, color, national origin or ancestry, or because she opposed a discriminatory practice under the Act is affirmed.
Dated and mailed October 31, 2008
leeje . rpr : 125 : 9
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
By final order dated October 20, 2005, the Madison Equal Opportunities Commission transferred the complainant's complaint to the Equal Rights Division pursuant to a worksharing agreement between the MEOC and the ERD. The MEOC did so due to a possible perception of a lack of neutrality in the case on the part of the MEOC.
At the point of the MEOC's transfer order, an MEOC investigator had issued an initial determination on the complainant's discrimination complaint which apparently found no probable cause to believe the respondent had discriminated against the complainant on the basis of age in her terms and conditions of employment, compensation and because she made a complaint about discrimination (which the complainant had appealed from), but that there was probable cause to believe the respondent discriminated against the complainant on the basis of race, color, national origin/ancestry in her terms and conditions of employment, compensation and because she made a complaint about discrimination, and probable cause to believe the respondent discriminated against the complainant by placing her on administrative leave and subsequently terminating her employment in retaliation for having filed a complaint of discrimination.
The possible perception of a lack of neutrality on the part of the MEOC arose because subsequent to the February 13, 2003 filing of the complainant's complaint, the respondent suspended the complainant's employment on March 19, 2003, after which the complainant sought and allegedly obtained advice from the MEOC investigator about retrieving items of personal property from her desk, apparently acted upon said advice and then was terminated by the respondent on April 7, 2003. Further, the complainant apparently also had ex parte contacts with other MEOC staff. Since the alleged advice given by the investigator, who had become the Interim Executive Director for the MEOC, may have contributed to the complainant's actions and ultimately to her termination and the complainant's ex parte contacts with MEOC staff placed the MEOC in the position of needing to assess the credibility of its Interim Executive Director and other staff, the MEOC issued an order that the complaint be transferred from its jurisdiction.
Although the MEOC had issued the order to transfer the case on October 20, 2005, the case was not actually transferred to the ERD until after the complainant's counsel, Attorney Jeff Scott Olson, sent a letter to the ERD dated November 6, 2006, inquiring about the status of the complainant's complaint. In the letter, Attorney Olson stated that what needs to be done is for the case to be assigned to an ALJ for the scheduling of a hearing on the no probable cause appeal, followed by the scheduling of a hearing on those aspects of the complaint as to which probable cause had been found.
By letter addressed to Attorney Olson dated November 16, 2006, an ERD investigator informed Attorney Olson that he could not transfer the matter directly to the ERD Hearing Section before it was first reviewed for probable cause. By letter to Attorney Olson dated December 12, 2006, the ERD investigator stated that he had contacted the MEOC and was informed that the MEOC could not locate any new or amended complaint, and that the initial determination he would be issuing shortly would not be dealing with the suspension or termination issues.
On January 5, 2007, the ERD investigator issued an initial determination finding no probable cause to believe the respondent violated the WFEA by discriminating against the complainant in compensation or in her terms and conditions of employment because of her age, race, color, national origin or ancestry, or by discriminating against the complainant because she opposed a discriminatory practice under the Act. Further, in the initial determination, the investigator explained that although the MEOC had ruled on the matters involving the complainant's suspension and discharge, the ERD Initial Determination was not considering them because the complainant never filed a complaint regarding these matters and they are not properly before the ERD.
On February 5, 2007, the complainant filed an appeal from the January 5 initial determination, and in particular, from "the Investigator's decision not to afford full faith and credit to the Initial Determination of the Madison Equal Opportunities Commission, and his decision that the Complainant's discharge is beyond the scope of this case because not the subject of a separate complaint."
A February 12, 2007 notice of hearing initially scheduled a probable cause hearing in the matter for May 16, 2007, however, the originally assigned ALJ recused herself, resulting in a need to reschedule the matter. The parties were ultimately able to agree that they had July 2, 2007, available as the date for the hearing. By letter to the parties dated March 27, 2007, the newly assigned ALJ confirmed that date as the date scheduled for the hearing.
At the hearing on July 2, 2007, Attorney Olson stated that the complainant did not intend to relitigate the issue of probable cause that day because the complainant believed that pursuant to the worksharing agreement in place between the MEOC and the ERD that the ERD was bound to accept the probable cause determination of the MEOC and to go forward from there without issuing a new independent initial determination. Attorney Olson proposed that the ALJ take official notice of the contents of the ERD file, which now included the MEOC's file, for historical purposes, and that the ALJ establish a briefing schedule to address the following issues: (1) whether it was improper for the ERD to not accept the initial determination issued by the MEOC investigator (i.e., the full faith and credit issue); and (2) whether it was improper for the ERD not to consider the suspension and termination issues raised subsequent to the filing of the complainant's complaint.
The respondent's counsel, Attorney Thomas Crone, stated that the respondent was prepared to proceed with the scheduled hearing and indicated that the complainant was waiving any right to an evidentiary hearing in the absence of any evidence presented to establish probable cause independent of the MEOC's determination. In response to Attorney Crone's comments, Attorney Olson proposed that only if the ALJ determined that it was proper for the ERD to issue its own initial determination and that the suspension and termination issues were not before the ERD, would the ALJ decide whether the complainant waived her right to a ERD hearing by not putting on any evidence on July 2, 2007.
However, Attorney Crone objected to Attorney Olson's further proposal, stating that the complainant waived her right to a probable cause hearing by not proceeding that day; that there had been no timely request for a postponement of the hearing and that it had been scheduled for some period of time.
After considering the matter, the ALJ concluded that the respondent was correct. The ALJ indicated that what the complainant was requesting was in the nature of a last-minute request for a postponement to decide a legal issue and that there was not good cause to postpone the scheduled probable cause hearing for this reason since the complainant was aware of this avenue of redress since she had mentioned the issue of the ERD's failure to afford full faith and credit to the MEOC's Initial Determination in her appeal of the ERD's Initial Determination of no probable cause.
The ALJ then asked Attorney Olson if he was prepared to present a case on the no probable cause issues. In response, Olson indicated that the complainant didn't ask that the evidentiary portion of the hearing be postponed and that the ALJ could issue a determination about holding an evidentiary hearing at some other time.
The ALJ interpreted Attorney Olson's response to mean that the complainant was not putting on her case that day. The ALJ therefore stated that he was finding that the appeal of the no probable findings on the issues in the ERD's Initial Determination was dismissed for failure to present a case on the part of the complainant, but that this was subject to the determination as to whether or not the ERD properly conducted its own investigation of the complainant rather than accepting the MEOC's Initial Determination.
The parties then agreed to a briefing schedule to address the full faith and credit and suspension and termination issues. The ALJ set forth his ruling on the dismissal of the complainant's appeal from the ERD's no probable cause determination and a briefing schedule for the full faith and credit and suspension and discharge issues that remained in a non-final and amended non-final order issued in July 2007.
The worksharing agreement between the MEOC and the ERD includes as part of its stated purpose that the "worksharing agreement will better effectuate the purposes of the City and State to prevent and eliminate discrimination, to promote speedy and just processing of charges of discrimination, and to more efficiently and effectively use those resources available to guarantee equal opportunities in the State of Wisconsin."
Section VI of the worksharing agreement, which contains the full faith and credit provision, reads as follows:
To the extent allowed by law, each agency shall give full faith and credit to the final disposition of issues of concurrent jurisdiction by the Agency of First Processing...[i.e., the agency which first received the complaint/charge, except where the agencies mutually agree otherwise], regardless of what state in the administrative process such final disposition occurred. Examples of final dispositions to which each agency shall give full faith and credit include:
1. Administrative dismissals (due to settlements or otherwise);
2. No Probable Cause Determinations;
3. Decisions on the Merits of the Issues.
In her brief to the ALJ, the complainant stressed that based on the purposes of the worksharing agreement an initial determination of probable cause must be considered a final disposition of the issue of probable cause because allowing a second determination of probable cause would contradict the purpose of the agreement as it would result in delays and inefficiencies. Further, the complainant argued that it seemed highly illogical that the ERD must accord full faith and credit to an MEOC no probable cause initial determination but could not accord full faith and credit to an MEOC probable cause initial determination. The complainant argued that the probable cause initial determination is more "final" than the no probable cause initial determination because the probable cause determination is not subject to appeal, while the no probable cause determination is and could possibly be reversed and probable cause found.
The respondent argued that the full faith and credit provision of the worksharing agreement was expressly limited to a "final disposition", that the worksharing agreement lists Administrative Dismissals, No Probable Cause Determinations and Decisions on the Merits of Issues as examples of final dispositions and that an initial determination of probable cause is not a final disposition and therefore not required to be accorded any weight by ERD. Further, the respondent argued that the listed examples of final disposition have in common the result that, absent a timely appeal, the matter is over, while a probable cause determination has just the opposite result: it automatically triggers a hearing on the merits. The respondent argued that clearly the ERD and MEOC understood the difference when they gave "examples of final disposition" and excluded from the list probable cause determinations.
In a decision issued on October 5, 2007, the ALJ concluded that the ERD was not required to accept the MEOC's probable cause initial determination instead of conducting its own investigation as it was not the intent of the parties to the worksharing agreement that they give full faith and credit to each other's probable cause determinations. After quoting Black's Law Dictionary definition of final disposition, (1) the ALJ stated the following as reason:
According to the Madison City ordinance, if the MEOC finds probable cause to believe discrimination has been committed, it shall attempt to eliminate it by conference, conciliation or persuasion, and if that effort does not succeed, it shall issue and serve a written notice of hearing on the respondent, and hold a hearing on whether there has been a violation of the ordinance. Sec. 3.23(10)(c), Madison Equal Opportunities Ordinance. It is clear that such a probable cause finding is not a final disposition in the standard legal sense, because it does not fix the rights and obligations of the parties, and does not end the controversy or litigation between them. It is also clear that the three examples of "final dispositions" listed in the worksharing agreement do fix the rights and obligations of the parties and end the litigation between them (absent an appeal). Finally, the worksharing agreement itself does not create a special definition of "final disposition." These facts argue strongly in favor of the conclusion that the parties to the worksharing agreement intended to use the standard definition of the term, which in this case would leave the ERD free not to give full faith and credit to MEOC's probable cause determination.
The Complainant's arguments that it is inconsistent with the goal of speed and efficiency for one agency to refuse to accept the other's probable cause findings, that it is illogical to treat no-probable-cause findings differently from probable cause findings, and that probable cause findings are "final" in the sense that they conclude the agency's consideration of probable cause, are not persuasive. A reasonable interpretation of the plain language of the worksharing agreement is that while each agency valued speed and efficiency, each one also valued the desire to be free to do its own review of a case transferred to it, unless the transferring agency had reached a decision that had fixed the rights and obligations of the parties (i.e., a final disposition). This interpretation, supported by the plain language of the agreement, is not illogical unless one assumes that the only purpose of the agreement was to maximize speed and efficiency. The [worksharing agreement] statement of purpose (see above) is not so single-minded.
If the parties really intended to give full faith and credit to each other's probable cause determinations in the interest of promoting speedy processing and efficient use of resources, their worksharing agreement would have: a) used some term other than "final disposition"; b) created a special definition of that term; or c) listed probable cause determinations as a specific example of a final disposition. Their failure to do any of these suggests that the parties' interest in speed and efficiency was not so strong as to lead them to an agreement to give full faith and credit to each other's probable cause determinations. Such an agreement may not promote speed and efficiency as much as possible, but there is nothing in the agreement that suggests its terms should be defined so as to achieve maximum speed and efficiency.
(Underlining emphasis in original.)
On the issue of her suspension and termination, the complainant argued that the general rule under Title VII is that a plaintiff cannot bring claims that were not included in the underlying charge and that this is required so as to afford the EEOC the opportunity to investigate and settle the dispute through conciliation, as well as to provide notice to the employer (case citations omitted), but this does not mean that every allegation needs to be included in the complaint or that all relevant claims need to be explicitly listed, citing Jenkins v. Blue Cross Mut. Hosp. Ins., 538 F.2d 164, 167(7th Cir. 1976 (en banc), cert. denied, 429 U.S. 986 (1976).
The complainant argued that the ERD should adopt the analysis under Title VII case law that in construing charges filed with the EEOC for purposes of determining the proper scope of the subsequent judicial action, that the scope of the federal court complaint may properly encompass any discrimination claims "like or reasonably related to the allegations of the charge and growing out of such allegations". The complainant argued that considering the "identical purposes" behind the WFEA and Title VII (to be both remedial and to prevent and eliminate discrimination in employment), it is logical that Wisconsin courts would turn to Title VII when interpreting and applying the WFEA. Further, the complainant argued that a claim of retaliation, based on events occurring after a discrimination complaint has been filed, necessarily meets the "like or reasonably related or growing out of" test, citing Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989).
As the rationale for allowing a retaliation claim to proceed that was not included in the original charge, the complainant cited McKenzie v. ILDOT, 92 F.3d 473 (7th Cir. 1996), which quoted Gupta v. E. Tex. State Univ., 654 F.2d 411, 414 (5th Cir. 1981), stating:
It is the nature of retaliation claims that they arise after the filing of the EEOC charge. ...[A] double filing...would serve no purpose except to create additional procedural technicalities when a single filing would comply with the intent of Title VII. We are reluctant to erect a needless barrier to the private claimant under Title VII, especially since the EEOC relies largely upon the private lawsuit to obtain the goals of Title VII. Intertwined with this practical reason for our holding is a strong policy justification. Eliminating this needless procedural barrier will deter employers from attempting to discourage employees from exercising their rights under Title VII.
Further, the complainant argued that the commission's discussion of the "like or reasonably related and growing out of" test in James v. Associated Schools (LIRC, 11/27/91) suggested that the commission found this test to be applicable to ERD cases, but not helpful to the complainant in that case, and that Hanson v. State Dept. of Transp. (LIRC, 06/14/05), was another case in which the commission considered the federal standard but found that application of the standard did not need to be reached because the complainant's arguments would ultimately fail under that standard.
The respondent argued that the ERD investigator's determination that the suspension and discharge issues were not properly before the Division is fully in accord with prior LIRC decisions, citing Yarie v. Pumphouse (LIRC, 07/17/90). The respondent argued that the rule was succinctly stated in Yarie as follows:
When an allegation of discrimination has not been made the subject of a properly filed complaint, it should not be made the subject of a decision. Hanson v. Waukesha Bearings (Industrial Commission, November 18, 1976); Rau v. Mercury Marine (LIRC, May 19, 1977), affirmed Rau v. DILHR (Dane County Circuit Court, February 21, 1979); Rudd v. The Rising Sun (LIRC, November 4, 1982); Marchant v. Breakthru Marketing Services (LIRC, February 5, 1988). Additionally, there should be neither hearing nor a decision on the merits of an allegation of discrimination until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Schumacher and Indermuehle v. Metal Industries (Industrial Commission, November 17, 1976); AMC v. DILHR and Basile (Dane County Circuit Court, October 3, 1977); Marchant v. Breakthru Marketing Services, supra.
The respondent argued that the fact that the MEOC investigator went ahead and found probable cause on matters not raised in the complaint (complainant's suspension and later discharge) does not mean those issues were properly before the MEOC or now before the ERD, citing Associated Schools, supra. Further, the respondent noted that in affirming the ALJ in Associated Schools LIRC observed that:
...the constructive discharge claim had never been made in writing in a complaint, that Complainant did obtain legal representation within only a few days after issuance of the initial determination, and that such counsel presumably would (or should) have been familiar with the statutes and rules of practice under which the Department operated as well as the fact that no claim of constructive discharge existed in Complainant's complaint...
The respondent argued that the complainant herein was represented by Attorney Olson at the time of her termination and had 300 days to file an amended complaint but chose not to do so; that as in Associated Schools, the fact that the investigator made findings on claims not raised in the complaint does not permit such claims to be pursued in the absence of a timely amendment.
The ALJ concluded in his October 5, 2007 decision that it was not improper for the ERD investigator to have refused to consider and make findings or a determination on the complainant's allegations concerning her suspension and termination from the respondent in the absence of a complaint or any amendment on file raising those issues. The ALJ set forth the following as reason for this determination:
...The Commission in James did discuss the "like or reasonably related" standard of Jenkins, and although the Complainant acknowledged the Commission's conclusion that James's constructive discharge claim was not like or reasonably related to the allegations in the initial complaint and did not grow out of such allegations, the Complainant cited the case to show the Commission's receptivity to the federal analysis.
In James, however, the Commission applied its consideration of the federal standard not to whether an amended charge was necessary at all, but instead to whether a late-filed amendment should be excused from the 300-day statute of limitations. This may have been a misapprehension of the purpose of the federal rule (2), but in any case James is not an example of the Commission's willingness to allow claims for hearing that were never included in any amendment to a complaint. The Commission appeared to be operating on the assumption that all claims must be incorporated into a complaint or an acceptable amended complaint in order to be investigated and heard.
The Complainant also cited Hanson v. State Dep't of Transportation (LIRC, 06/14/05) as another case in which the Commission considered the federal analysis. Hanson is factually closer to this case than James, at least in that the complainant in Hanson was seeking to have a particular claim of retaliation included as an issue for hearing even though no amendment had been filed raising that claim. The question of the federal standard, then, was not mixed into a discussion of the statute of limitations. After reciting the federal rule, the Commission stated:
It is important to bear in mind that this discussion concerns a procedurally different scheme arising in a different jurisdiction under a different law. There is a significant difference in the procedural scheme under Title VII and under the WFEA, as in the former case there is both an initial "charge" filed with the EEOC by the complainant, and then a subsequent "complaint" filed by the EEOC against the respondent, whereas under the WFEA the only pleading is the complaint filed by the complainant. Further, even assuming arguendo that the same legal principles govern the question of what issues may be heard at hearings on complaints under the WFEA, as govern the question of what issues may be heard in federal court trials on complaints under Title VII, the commission would not be persuaded by complainant's argument. As described above, the claim that the respondent retaliated against the complainant because of a statement she made to her supervisor in their meeting of March 14, 2000, is significantly different from the claim that it retaliated against her because of her filing a complaint with the Personnel Commission. The complaint here, which alleged only the latter, did not provide sufficient warning that a claim like the former would also be pursued.
The question of what protected conduct or status an adverse action was taken because of, is the question of what actually motivated the respondent, which is one of the most significant issues in any discrimination case. It is certainly a significant enough issue, that it needs to be clearly pleaded. See, Hoyer v. LIRC (Milw. Pub. Library) (Dane Co. Cir. Ct., 11/10/83)(allegation that a discharge was because of complainant's previous filing of a charge of discrimination, not sufficient notice of a claim that the same discharge was also because of sex).
Like James, this case was not an adoption by the Commission of the federal standard. To the contrary, it expressed quite a bit of reluctance to adopt the standard. In contrast to the federal scheme, the consistent practice of the Commission with respect to the necessity of having a complaint or amended complaint on file with respect to every issue is stated in Yarie v. The Pumphouse (LIRC, 09/14/90):
When an allegation of discrimination has not been made the subject of a properly filed complaint, it should not be made the subject of a decision. Hanson v. Waukesha Bearings (Industrial Commission, November 18, 1976); Rau v. Mercury Marine (LIRC, May 19, 1977), affirmed Rau v. DILHR (Dane County Circuit Court, February 21, 1979); Rudd v. The Rising Sun (LIRC, November 4, 1982); Marchant v. Breakthru Marketing Services (LIRC, February 5, 1988). Additionally, there should be neither hearing nor a decision on the merits of an allegation of discrimination until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Schumacher and Indermuehle v. Metal Industries (Industrial Commission, November 17, 1976); AMC v. DILHR and Basile (Dane County Circuit Court, October 3, 1977); Marchant v. Breakthru Marketing Services, supra.
The Commission's general practice in this regard has survived its consideration of the federal "like or reasonably related analysis" in James, supra. See Greco v. Snap-On Tools (LIRC, 05/27/04). This consistent practice has created an expectation by the parties that unless an issue is alleged in a timely complaint or a timely amendment, the ERD has no authority to hear that issue. (3) To allow Ms. Lee's suspension and termination issues into this complaint without there being any accepted amendment filed and without an investigation being done on those issues by the ERD would be to allow an unprecedented departure from the ERD's consistent practice of looking to the complaint and any permitted amendments to define the issues for investigation and hearing....
(Text underlining and italics emphasis in original.)
As a result of the ALJ's conclusions with respect to the full faith and credit and suspension and termination issues, and his prior non-final ruling regarding the complainant's loss of right to proceed with her appeal of the ERD's no-probable-cause determination, the ALJ dismissed the complainant's complaint.
DISCUSSION
First of all, the commission must emphasize at the outset that it does not disagree with the ALJ's analysis of why the worksharing agreement between MEOC and ERD does not require ERD to accept MEOC's probable cause initial determination instead of conducting its own investigation, nor does it disagree that it has been ERD's consistent practice to look to the complaint and any permitted amendments to define the issues for investigation and hearing.
Stated simply, a MEOC probable cause determination cannot be seen as a final disposition of an issue since not only is such a determination noticeably absent from and unlike the examples of final dispositions listed in the worksharing agreement, the resulting consequence of such a determination, further processing of the issue by the agency, is the very antithesis of a final disposition of an issue. Further, the rationale for the federal "like or reasonably related or growing out of" test makes perfectly good sense under Title VII's procedural scheme because after initially filing a charge of discrimination with the EEOC for investigation by that agency, the individual must then file a complaint in federal court to pursue his or her discrimination claim. Absent the existence of the federal "like or reasonably related or growing of" standard under Title VII, an individual would either have to stay the federal court action and start anew before the EEOC with any amended or additional charge to his or her original charge, or proceed simultaneously in both forums. However, unlike Title VII's procedural scheme, under the WFEA should there be a need for an individual to amend or include an additional charge to his or her original complaint of discrimination, that amended/additional charge along with the original complaint remains at all times before the Equal Rights Division. The rationale for utilization of the "like or reasonably related or growing out of" standard under Title VII is thus not present in claims filed under the WFEA.
Notwithstanding the above, however, for the reasons cited below the commission concludes that the complainant should be allowed to pursue her suspension and termination claims before the ERD because under the circumstances presented in this case it would be fundamentally unfair to the complainant should she not be allowed to do so.
First, as noted by the complainant, the following dates and events are undisputed: That she was placed on a leave of absence on March 19, 2003, approximately one month after her discrimination complaint was filed with the MEOC; that on March 20, 2003, she sent a letter to the investigator stating that she was suspended in retaliation for filing her MEOC complaint; that on April 7, 2003, she was fired; and that on September 24, 2003, the MEOC investigator found probable cause to believe that she was terminated in retaliation for filing a discrimination complaint on February 13, 2003. Second, as argued by the complainant before the commission, "It is completely unfair that Ms. Lee, whose suspension and termination issues were considered by the agency she filed with, because they were substantially related and growing out of the initial complaint, should be left without recourse now for her [alleged] discriminatory suspension and termination because a sister agency decided to switch procedural standards on her years after her initial complaint and probable cause findings, and obviously after the statute of limitations for Ms. Lee to amend her complaint has long passed." (Complainant's initial brief, p. 21.) (Emphasis in original.) Furthermore, with respect to the 300 day statute of limitations in which to file an amended complaint, as argued by the complainant, "Well within the 300 day period within which the Respondent now contends Ms. Lee had to amend her complaint to include the April 7th termination, Ms. Lee received the September 24th Initial Determination that there was probable cause to believe that her termination was in retaliation for filing a discrimination complaint. Ms. Lee had no reason to amend her complaint after September 24th, even though she still had approximately 150 days to do so....Simply put, it is fundamentally unfair for the Respondent to file a Motion to Transfer on November 6, 2003 (still within Ms. Lee's 300 days), which would not be fully briefed, appealed, and resolved until October 20, 2005 (well outside Ms. Lee's 300 days), to an agency which would consider her previously investigated allegations as not pled and time barred because two years had been consumed with debate over the transfer." (Complainant's reply brief, p. 7.) The commission agrees.
The commission notes that in its brief to the ALJ the respondent argued that the MEOC's initial determination findings on the complainant's suspension and subsequent termination issues had violated the MEOC's own rules. In a footnote the respondent asserted that:
Section 3.15 of the MEOC's rules provide that the "Commission shall not investigate any complaint which is not a formal complaint as defined in Section 2.7 (4) or which has not been served on the Respondent." (Emphasis in original.) To constitute a "formal complaint" it must, inter alia, be "on an appropriate form." Section 3.121....
It appears, however, that the respondent misconstrues the MEOC's rules; in particular the language or which has not been served on the Respondent in section 3.15. Included in the MEOC Decision Digest, under the section "Identification of Issues", is the following case summary:
A hearing examiner is without authority to enter a conclusion of discrimination on issues such as failure to rehire which were set forth in neither the notice of hearing nor which the employer otherwise had notice of (e.g., through the complaint or other documents); . . . but such notice requirement does not extend to any issues concerning proper remedy. Maxson v. Means Servs., MEOC Case No. 2783 (Comm. Dec. 6/15/83, Ex. Dec. 11/18/82), aff'd on other grounds, Maxson v. MEOC (Means Servs.), No. 84 CV 4150 (Dane County Cir. Ct., 7/18/85).
(Underlining emphasis added.)
As evidenced by the case file, after the February 13, 2003 filing of the complainant's complaint the complainant provided written submissions to the MEOC regarding her suspension and termination, which the respondent had notice of and responded to with its own written submissions on April 14, 2003 and May 16, 2003, respectively.
MEOC case law thus indicates that the MEOC investigator's findings on the complainant's suspension and termination issues did not violate MEOC's rules.
Apparently as further reason for affirming the ALJ's dismissal of the complainant's complaint, the respondent has argued that the MEOC's decision to transfer the case to the ERD "was based in large part on Complainant's own inappropriate ex parte communications with the Hearing Examiner", citing page 1 of the MEOC's final order issued on October 20, 2005. However, the MEOC's final decision and order simply reads as follows: "On April 21, 2005, the Hearing Examiner issued a Decision and Order transferring the complaint to the Department of Workforce Development ERD due to the possible appearance of impropriety in the Commission's handling of the case and because of the Complainant's ex parte communications with the Commission staff on April 27 (sic), 2005." (5)
A review of the MEOC's final decision and order fails to show to what extent the MEOC based its decision to transfer the case on the complainant's ex parte contacts. In any case, correspondence in the case file indicates that the complainant's ex parte communications with the hearing examiner and MEOC staff occurred during the early part of 2005, which was long after the 300 day statute of limitations had run on her suspension and termination claims, and thus would have made no difference in her inability to file a new or amended complaint on those claims. This correspondence includes the following: A letter dated April 18, 2005, from Attorney Olson addressed to the MEOC's Interim Executive Director responding to the Director's March 10 and 24 letters regarding "overtures Ms. Lee made concerning transferring of this case to the EEOC without consulting me"; and a brief Attorney Crone submitted to the MEOC dated July 15, 2005, in which Attorney Crone relates that by letter dated April 15, 2005, the MEOC Hearing Examiner advised both counsel that the complainant had made ex parte contact with the hearing examiner.
Finally, the commission has affirmed the ALJ's determination that the complainant lost her right to proceed before the ERD with respect to a probable cause hearing on the question of whether the respondent violated the WFEA by discriminating against the complainant in compensation or in her terms and conditions of employment because of her age, race, color, national origin or ancestry, or by discriminating against the complainant because she opposed a discriminatory practice under the Act. The ALJ set forth his reasons for his ruling on this issue in a non-final order issued in July 2007. They were as follows:
Although it would make sense for the Complainant to want her arguments on full faith and credit and suspension/termination decided before proceeding with an evidentiary hearing, the Complainant did not seek rulings on these issues prior to hearing, even though she had ample opportunity to submit argument and seek rulings from the time her appeal was filed. (Prior to hearing, either party may file a written motion. DWD 218.15(2)). As of the date that the notice of hearing was first issued in this case, the Complainant had all the information she needed in order to brief the full faith and credit and suspension/termination issues, and, if necessary, request a postponement of the probable cause hearing until those issues were decided. (DWD 218.18(2)). She did not do so. Instead, up until the date of the hearing she gave every indication that she was preparing for hearing, by, for instance, agreeing in March to the July 2nd hearing date, and by submitting on June 22nd her list of witnesses and proposed exhibits for hearing.
A party must show good cause for postponing a scheduled hearing. After 10 days go by from the date of the notice of hearing, good cause usually requires a showing of some unforeseeable circumstance has arisen justifying a delay. In this case, it should have become foreseeable to the Complainant well in advance of the hearing that she would need to request a postponement of the hearing if she wanted time (6) to submit a motion and brief on the full faith and credit and suspension/termination issues while maintaining the right to present evidence at a probable cause hearing in the event the motion were rejected. To wait until the morning of the hearing to ask for briefing time is to wait too long.
Therefore, by not being willing on the scheduled day of hearing to present evidence on the no-probable-cause appeal, and not having good cause for postponement of the hearing, the Complainant has lost her opportunity to present evidence on her appeal....
The commission agrees.
cc:
Attorney Jeff Scott Olson
Attorney Thomas R. Crone
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