Wis.LIRC ER Decision: Puent, Frederick - August 7, 2017 - ERD Case No. CR201201954 - Procedure- ERD complaint was properly dismissed based on issue preclusion after EEOC complaint was dismissed on summary judgment in federal court because the same discriminatory acts alleged in EEOC complaint were also alleged in ERD complaint

State of Wisconsin

Labor and Industry Review Commission


Frederick Puent	Fair Employment Decision[1]
Complainant	Fair Employment Decision[1]

Croell Redi-Mix
Respondent	Dated and Mailed:

ERD Case No.CR201201954	August 7, 2017
	puentfred_rsd.doc:135

The decision of the administrative law judge (copy attached) is affirmed. Accordingly, the complainant’s complaint is dismissed with prejudice.

By the Commission:
	/s/
	Laurie R. McCallum, Chairperson

	/s/
	David B. Falstad, Commissioner

Procedural Posture

This case is before the commission to consider the complainant’s allegation that the respondent discriminated against the complainant because of his age and disability in violation of the Wisconsin Fair Employment Act (WFEA). An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision and order dismissing the complainant’s complaint. The commission has considered the complainant’s petition and the positions of the parties, and based on its review, the commission agrees with the decision of the ALJ, and it adopts that decision as its own .

Memorandum Opinion

Procedural History

On May 25, 2012, the complainant Frederick Puent filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and cross-filed with the Equal Rights Division (ERD) of the Department of Workforce Development alleging that respondent Croell Redi-Mix had discriminated against him because of his age and disability. During the investigation of the complainant’s complaint, the complainant made ERD aware that he had filed his complaint against the respondent in federal court. On April 8, 2015, ERD sent the parties a letter indicating that it would be placing the complainant’s complaint in abeyance while the complainant’s federal complaint was resolved.

On February 3, 2016, ERD received a letter from the respondent informing it that the federal court had issued a decision on February 1, 2016 granting summary judgment and dismissing the complainant’s federal complaint. The federal court issued a 21-page decision making extensive findings, concluding there was no evidence of age or disability discrimination. On March 1, 2016, ERD received a letter from the complainant opposing the dismissal of his ERD complaint. The complainant argued against dismissal by ERD because the federal court dismissed his complaint on summary judgment without allowing the complainant to use all of the evidence.

On September 15, 2016, an ERD officer issued an Order of Dismissal, dismissing the complainant’s ERD complaint because the allegations in the complaint had been previously dismissed by a federal court. Wisconsin Admin. Code § DWD 218.06(3)(a)3., provides for dismissal of a complaint prior to completion of an investigation if the “allegations in the complaint have been previously dismissed by the department or by a state or federal court.”

The matter was assigned to an ERD ALJ after the complainant filed a timely appeal of the dismissal of the complaint. The respondent filed its response to the complainant’s appeal. And on June 2, 2017, the ALJ issued a decision, dismissing the complainant’s complaint because Mr. Puent was precluded from litigating the same allegations that had been dismissed by a federal court. The complainant filed a timely petition for commission review stating that he is dissatisfied with the ALJ’s decision.

Application of Issue Preclusion

This case involves circumstances similar to those in Williams v. Milwaukee Health Services, ERD Case No. CR201203453 (LIRC Oct. 20, 2015); Balele v. PDQ Food Stores Inc., ERD Case No. CR201203887 (LIRC June 18, 2015) and Banty v. Dings Co. Magnetic Group, ERD Case Nos. CR200803382, CR200903205, EEOC Case Nos. 26G200900100C, 26G201000006C (LIRC, July 31, 2012). In each of these prior commission decisions, a federal court had adjudicated a set of allegations of discrimination by granting summary judgment to the respondent, and then the complainant sought to have those same allegations adjudicated by the Equal Rights Division. The question presented in those cases was whether these complaints were barred by issue preclusion. The same question is presented here, and the commission is persuaded that the answer is also the same, that the complainant’s complaint was barred by issue preclusion.

The first step in the analysis of issue preclusion 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 v. LIRC and Best Buy, 2012 WI 53, ¶ 97, 341 Wis.2d 36, 71, 814 N.W.2d 433. Initially, it should be noted that the fact that the outcome in the federal court proceeding in this case came in a ruling on a motion for summary judgment, rather than after a trial, does not matter. 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, 2012 WI 53, ¶ 99-100.

Resolving the question of whether the issue or fact was actually litigated and determined requires comparing the specific factual issues addressed in the previous action and in the action which is sought to be precluded. The allegations made in the ERD complaint were also made in the federal court complaint [2], and were specifically addressed in the federal court's decision. The federal court's decision clearly addressed and determined the critical issue of whether the adverse actions taken by the respondent were shown to have been motivated by bias because of the complainant's age or disability. Those determinations were obviously essential to the judgment, as they formed the basis of the complainant's cause of action. As to the allegations of both age and disability discrimination, the court found that even if the evidence and the reasonable inferences from that evidence were construed in the light most favorable to Mr. Puent, he had not presented evidence sufficient to allow a finding in his favor.

Thus, the first step in the analysis clearly supports application of issue preclusion and leaves the second step in the analysis: determining whether applying issue preclusion comports with principles of fundamental fairness. 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. Aldrich v. LIRC, 2012 WI 53, ¶ 109. 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.” Id. at ¶109.

The fundamental fairness analysis requires consideration of the following factors:

"(1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (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 the 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; or (5) are matters of public policy and individual circumstances involved that would render the application of collateral estoppel [issue preclusion] to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?" Aldrich v. LIRC, 2012 WI 53, ¶ 110.

Notably, the five factors are not exclusive or dispositive and the weight given to each factor is discretionary. Aldrich v. LIRC, 2012 WI 53, ¶ 111-112.

The second step in the analysis also clearly leads to the conclusion that issue preclusion should be applied:

Mr. Puent could have obtained review of the judgment by the 7th Circuit Court of Appeals.
The questions presented involved exactly the same claims and the same issues of law.
There were no significant differences in the quality or extensiveness of the proceedings between the federal district court and the ERD; the fact that the proceedings in the former involved a motion for summary judgment is not relevant, see, Aldrich, supra, 2012 WI 53, ¶ 99-100.
The burden for the respondent, as the party seeking preclusion, was no easier on it in federal court than before ERD; in fact, by obtaining a summary judgment in federal court, the respondent met a high standard than it would have had to meet at an evidentiary hearing in either forum.
There were no matters of public policy and individual circumstances involved making issue preclusion unfair; it is clear that Mr. Puent had adequate opportunity and incentive to adjudicate.

For the foregoing reasons, the commission agrees with the ALJ's decision that the application of issue preclusion in this case is consistent with fundamental fairness.

cc: Attorney Matthew Kurlinski

[1] Appeal Rights: See the green enclosure for the time limit and procedures for obtaining judicial review of this decision. If you seek judicial review, you must name the Labor and Industry Review Commission as a respondent in the petition for judicial review.

Appeal rights and answers to frequently asked questions about appealing a fair employment decision to circuit court are also available on the commission’s website http://lirc.wisconsin.gov.

[2] The federal complaint also alleged retaliation in addition to the age and disability claims alleged in both proceedings.