BRENAYDER WILLIAMS, Complainant
MILWAUKEE HEALTH SERVICES, Respondent
An administrative law judge (ALJ) 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 ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:
On November 14, 2011, the Complainant (Ms. Williams) filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging discrimination on the basis of age and sex by the Respondent (MHS) when it denied her a promotion in April 2011.
In the eighth paragraph of the ALJ's decision, immediately after the word "dismissal", insert "in 12-CV-1293-JPS".
Delete the ninth paragraph of the ALJ's decision (the paragraph that begins "On August 28th 2014"), and replace it with the following:
On August 28, 2014, the Eastern District dismissed Ms. Williams' claims in case no. 12-CV-1293-JPS, noting that Ms. Williams conceded that claim preclusion foreclosed her claim under the Rehabilitation Act of 1973.
In the eleventh paragraph of the ALJ's decision (the paragraph that begins "On June 22, 2015"), replace "Johnson" with "Williams"
Delete the thirteenth paragraph of the ALJ's decision (the paragraph that begins "Ms. Johnson first filed a claim").
Delete the fourteenth paragraph of the ALJ's decision (the paragraph that begins "However, Ms. Johnson has already litigated"), and replace it with the following:
The issue of disability discrimination was actually litigated in case no. 12-CV-828 by a valid judgment. The court's determination that MHS was unaware that Ms. Williams had a disability was essential to its judgment. Similarly, Ms. Williams cannot prevail in her complaint in the ERD if MHS was unaware that she had a disability. The doctrine of issue preclusion is applicable to Ms. Williams' ERD complaint, and comports with fundamental fairness.
Delete the fifteenth paragraph of the ALJ's decision.
In the ALJ's ORDER, change the phrase "but both issue and claim preclusion in light of the dispositions of Case No. 12-CV-828 and 12-CV-1293-JPS in federal court" to "but issue preclusion in light of the disposition of case no. 12-CV-828".
The decision of the administrative law judge (copy attached), as modified, is affirmed.
Dated and mailed October 20, 2015
willibr_rmd . doc : 107 : 5 119
BY THE COMMISSION:
/s/ Laurie R. McCallum, Chairperson
/s/ C. William Jordahl, Commissioner
/s/ David B. Falstad, Commissioner
Under the Wisconsin Fair Employment Act (WFEA), Wis. Stat. § 111.31 et seq., complaints of discrimination must be filed with the state Equal Rights Division (ERD) within 300 days of the alleged discriminatory act. Wis. Stat. § 111.39(1). The ERD has a worksharing agreement with the Equal Employment Opportunity Commission (EEOC) whereby charges filed with the EEOC stating claims that also would be recognized under the WFEA would be considered filed with the ERD on the date they are filed with the EEOC. The documentation in the ERD investigatory file includes a charge of disability discrimination filed with the EEOC on November 1, 2012. The ERD acknowledged receipt of a copy of that charge on November 13, 2012. Based on this documentation, then, the operative date of filing of the ERD complaint was November 1, 2012. This date is more than 300 days after the undisputed end of the complainant's employment, November 10, 2011. The investigator assigned to the case issued a Preliminary Determination dismissing the complaint for untimely filing.
During investigation, however, the complainant made factual assertions that, if found to have been true, might have resulted in a determination that the complaint was timely. The complainant had filed an earlier charge with the EEOC, on November 14, 2011, making allegations of sex and age discrimination against the respondent. She then filed a federal lawsuit on or about August 14, 2012, alleging age and disability discrimination (case no. 12-CV-828). The factual assertions that the investigator found to be unproven were that the complainant attempted to amend her EEOC charge to add a claim of disability discrimination (after being alerted of the need to do this by the federal court), and obtained a document stating that she had accomplished amending her EEOC charge to add an allegation of disability discrimination to her previous, timely filed charge. She was unable, however, to produce any document that indicated she filed a charge of disability discrimination with the EEOC at any time prior to September 5, 2012 (300 days after the last day of the complainant's employment). This was why the investigator found her complaint to be untimely.
It may well be that the complainant's claim of disability discrimination is untimely, but such a determination would have depended on resolving the complainant's factual allegations against her. Since the resolution of disputed facts requires an evidentiary hearing, and review of this case has been based only on briefs and the investigative file, a dismissal based on the conclusion that the complaint was untimely would have been subject to an order setting it aside and remanding it for an evidentiary hearing.(1) Bedynek-Stumm v. City of Madison, ERD Case No. CR200003354 (LIRC Nov. 30, 2001). Remand is not necessary here, though, because undisputed facts in this case make it appropriate to apply the concept of issue preclusion to bar the complainant's complaint.
Claim preclusion
First, it is necessary to briefly discuss the ALJ's reliance on the doctrine of claim preclusion as well as issue preclusion. Claim preclusion operates to bar a subsequent legal action between the same parties (or their privies) regarding all matters that were litigated, or that might have been litigated, in the initial action. Aldrich v. LIRC, 2008 WI App 63, 6, 310 Wis. 2d 796, 751 N.W.2d 866. There is no dispute that the complainant's complaint of disability discrimination in case no. 12-CV-828 and her present ERD complaint are functionally the same claim between the same parties. Claim preclusion, however, cannot operate to bar the ERD complaint because it is settled law that the exclusive means of asserting a claim based on the WFEA is through the ERD. Aldrich, supra, at 9. The complainant could not have litigated her WFEA claims in federal court; therefore the concept of claim preclusion cannot prevent her from raising her complaint in the ERD under the WFEA. Aldrich, supra, at 10.(2)
Issue preclusion
The purpose of issue preclusion, formerly called collateral estoppel, is to limit relitigation of issues that have been actually litigated in a previous action. Aldrich v. LIRC and Best Buy, 2012 WI 53, 88, 341 Wis. 2d 36, 814 N.W.2d 433 (Aldrich II). The first step in the analysis is to "determine whether the issue or fact was actually litigated and determined in the prior proceeding by a valid judgment in a previous action and whether the determination was essential to the judgment." Aldrich II, supra, 97.
The "actually litigated" requirement does not mean there must have been a trial. "An issue decided on summary judgment may satisfy the elements of issue preclusion." Aldrich II, supra, at 100. See also, Banty v. Dings Co. Magnetic Group, ERD Case Nos. CR200803382 & CR200903205 (LIRC July 31, 2012). The complainant could not prevail on her federal disability discrimination complaint without proving that her employer was aware of her disability. Having considered the respondent's motion for summary judgment and the complainant's allegations in response to the motion, the federal court determined that no reasonable jury could have inferred that the respondent was aware of the complainant's alleged physical restrictions, or that such restrictions amounted to a disability. That determination necessarily resulted in a judgment of dismissal. Similarly, the complainant cannot prevail in her WFEA complaint without proof that the employer was aware of her disability. Wester v. Charter Media/Communications, ERD Case No. CR200003872 (LIRC Oct. 15, 2004). A decision to allow the complainant to proceed with her ERD complaint, then, would allow relitigation of an issue that has been actually litigated in a previous action, in contravention of the concept of issue preclusion.
The second step in the analysis is determining whether applying issue preclusion comports with principles of fundamental fairness. In Banty, supra, the commission summarized this step of the process, as set out in Aldrich II:
The central goal of the "fundamental fairness" analysis is to protect the rights of all parties to a full and fair adjudication of all issues involved in the action. The decision should be made with special attention to guarantees of due process which require that a person must have had a fair opportunity procedurally, substantively and evidentially to pursue the claim before a second litigation will be precluded. Aldrich, 2012 WI 53, 109.
Courts have generally looked to these five factors to decide whether the "fundamental fairness" test is met:
(1) Could the party against whom preclusion is sought have obtained review of the judgment as a matter of law;
(2) Is the question one of law that involves two distinct claims or intervening contextual shifts in the law;
(3) Do significant differences in the quality or extensiveness of proceedings between two courts warrant relitigation of the issue;
(4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and
(5) Are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?
Aldrich, 2012 WI 53, 110. No single factor is dispositive, and the final decision must rest on a "sense of justice and equity." The five factors are not exhaustive or exclusive. The weight given to each factor is discretionary. 2012 WI 52, 111-112.
These factors point to the conclusion that applying issue preclusion to this case comports with fundamental fairness. First, the complainant had a legal right to obtain review of the federal district court's judgment, and in fact did so. The Seventh Circuit Court of Appeals affirmed the judgment.
Second, the claims in federal court and before the ERD were not distinct-they involved similar laws, and were based on the same set of facts.
Third, there were no significant differences between the tribunals in the quality or extensiveness of their proceedings.
Fourth, the ultimate burden of persuasion is on the complainant in both the state and federal forums. The burden was no easier on the respondent in federal court than before the ERD. In fact, by obtaining a summary judgment in federal court, the respondent met a higher standard than it would have had to meet at an evidentiary hearing in either forum-that is, it had to convince the court that no reasonable fact-finder could have found that the respondent was aware that the complainant had a disability.
Fifth, there are no other circumstances that would render application of issue preclusion fundamentally unfair. All the considerations the commission mentioned on this fifth factor in Banty apply equally here. The complainant had an opportunity and incentive to obtain a full and fair adjudication in the federal court action.
cc:
Attorney Terence Schuster
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(1)( Back ) The ALJ had a different reason for rejecting the respondent's argument that the complaint was untimely, namely, that the complainant's August 14, 2012 filing of her federal lawsuit alleging disability discrimination satisfied her filing responsibility for purposes of the WFEA. The commission does not accept this reasoning. Other than filing with the ERD, the only filing that fixes a filing date under the WFEA is a filing with the EEOC that is subject to the worksharing agreement between the two agencies.
(2)( Back ) On the other hand, as illustrated by the complainant's second federal action, case no. 12-CV-1293, in which the complainant sought to add a second federal statutory basis for her disability claim, the Rehabilitation Act of 1973, dismissal by way of claim preclusion was appropriate and was ultimately ordered, because it was a second claim between the same parties that could have been included in the first federal action (12-CV-828). The filing and disposition of case no. 12-CV-1293 is not relevant to the outcome of this case.
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