State of Wisconsin

Labor and Industry Review Commission

Zhengnan Shi	Fair Employment Decision[1]
Complainant
UW System Board of Regents
Respondent	Dated and Mailed:
ERD Case No. CR201401334	January 30, 2018
EEOC Case No. 26G201400817C	shizhe_rsd.doc:164

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

By the Commission:
	/s/
	Georgia E. Maxwell, Chairperson
	/s/
	Laurie R. McCallum, Commissioner
	/s/______________________________________ David B. Falstad, Commissioner

Procedural History

On April 30, 2014, the complainant filed a complaint with the Equal Rights Division (hereinafter “ERD”) of the Department of Workforce Development, in which he alleged that the respondent discriminated against him based upon his race, creed, national origin/ancestry, because he filed a previous discrimination complaint and opposed discrimination in the work place, and because he declined to attend a meeting or participate in a communication about religious or political matters, all in violation of the Wisconsin Fair Employment Act (hereinafter “Act”).  Specifically, the complainant maintained that the respondent failed to finish his contract renewal process, sent out defamatory information regarding his employment separation to a student newspaper, and refused to allow the complainant to insert rebuttals into his personnel file.  The latter two allegations refer to events that took place a year or more after the termination of the employment relationship between the complainant and the respondent.

On June 3, 2014, the respondent filed a motion to dismiss the complaint on the ground that the complainant’s allegations were not covered by the Act and/or were covered by another lawsuit the complainant had already commenced.  On December 10, 2014, an equal rights officer for the ERD issued an initial determination finding no probable cause to believe that the complainant was discriminated against as alleged in his complaint.  The initial determination made no reference to the respondent’s motion to dismiss and did not specifically address the issues raised in that motion other than to note that the complainant agreed with the respondent that his complaint about the non-renewal process had been covered by a prior ERD complaint and, therefore, would not be addressed.  The complainant filed a timely appeal of the no probable cause determination, and the matter was certified to hearing.

On December 15, 2016, the administrative law judge assigned to the case considered the respondent’s motion to dismiss that was originally filed on June 3, 2014.  Given the passage of time, the administrative law judge asked the respondent to provide a supplemental motion.  On January 9, 2017, the respondent filed a supplemental motion to dismiss.  The complainant was provided with a copy of the motion and was given an opportunity to file a response, but did not do so.  On November 6, 2017, the administrative law judge issued a decision granting the respondent’s motion to dismiss the complaint.  

The complainant has filed a timely petition for commission review of the administrative law judge’s decision dismissing his complaint.  The commission has considered the petition and the positions of the parties, and it has reviewed the information submitted to the administrative law judge.  Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own, except that it makes the following:

Modifications

1.  In the first sentence of the fifth paragraph on page 2 of the administrative law judge’s decision, the date “December 5, 2012” is deleted and the date “December 5, 2016” is substituted therefor.

2. In the last sentence of the final paragraph on page 6 of the administrative law judge’s decision, the date “2/23/2014” is deleted and the date “2/23/2004” is substituted therefor.

Memorandum Opinion

In his petition for commission review the complainant argues that he was never given an opportunity to present his case at a hearing and that the administrative law judge erred in issuing an opinion without first conducting a hearing.  The complainant questions why he was not permitted to testify directly, since the respondent insists that all the accusations against him were true; he speculates that the reason he was not given a hearing was related to his minority status.  The commission has considered the complainant’s arguments, but does not find them persuasive.  The dismissal of the complainant’s complaint prior to hearing was not related to the complainant’s protected status, but was because the administrative law judge correctly determined that the complainant’s allegations were precluded by prior litigation involving the identical claims or issues, and/or were related to actions taken by a former employer that had no connection to a future employment opportunity, and therefore would not amount to a violation of the Act.

The administrative rules provide that a complaint may be dismissed based upon the conditions set forth in Wis. Admin. Code § DWD 218.05(1)[2] or for any other procedural basis after the case is certified to hearing.  Wis. Admin. Code § DWD 218.10.  Administrative law judges have the authority to dismiss complaints without hearing where, even if the facts alleged by the complainant were proven, they would not amount to a violation of the Act.  McCullum v. Lutheran Home Inc., ERD Case No. CR200600744 (LIRC May 23, 2008).  Further, under the doctrine of “claim preclusion”--which is designed to prevent repetitive litigation--a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings.  Taylor v. St. Michael Hospital, ERD Case No. 199901329 (LIRC May 31, 2001).  Similarly, where an issue of law or fact has been actually litigated and decided in a prior action, the doctrine of “issue preclusion” precludes relitigation of the same issue.  Id.

The complainant filed a prior complaint alleging discrimination with respect to the respondent’s failure to complete the contract renewal process, and a final decision was issued concluding that no discrimination was established.  Because the contract renewal matter has already been fully litigated, the ERD lacks jurisdiction over that aspect of the complainant’s complaint.[3]  The ERD lacks jurisdiction over the complainant’s allegations of defamation for a similar reason--in the prior decision involving the contract renewal matter the statements which the complainant now contends were false and defamatory were found to be factually accurate.[4]  Since the complainant is precluded from relitigating issues of fact that were actually litigated and decided in a prior decision, his complaint that the respondent provided false and defamatory information cannot go forward.  In addition, the commission questions whether the complainant’s contention that the respondent deliberately provided false information to a newspaper with respect to the renewal of his contract is a matter that would be covered under the Act.

Finally, the complainant’s allegation that the respondent did not permit him to include rebuttal material in his personnel file, two years after the employment relationship had ended, does not state a claim under the Act.  The discriminatory conduct prohibited by the Act includes refusing to hire, employ, admit or license any individual, barring or terminating from employment or labor organization membership any individual, or discriminating against any individual in promotion, compensation or in terms, conditions or privileges of employment or labor organization membership.  See, Wis. Stat. § 111.322(1). While the Act has been broadly interpreted to cover actions that may affect employment opportunities taken by employers or persons with whom the complainant has no current or potential future employment relationship, there is no reason to believe that the respondent’s failure to allow the complainant to submit after-the-fact rebuttal comments or materials regarding the decision not to renew his contract has any connection to a future employment opportunity.[5]  Consequently, the commission agrees with the administrative law judge that it is not covered by the Fair Employment Act.  There is no sense in conducting a hearing on a complaint where, even if the facts alleged are proven, they do not amount to a violation of the law upon which relief can be predicated.  Dunn v. City of Burlington, ERD Case No. 9450930 (LIRC July 28, 1995).  Accordingly, the dismissal of the complaint is affirmed.

cc:  Jennifer Sloan Lattis

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[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] Those conditions include whether the complainant is protected by the Act, whether the respondent is subject to the Act, whether a complaint states a claim for relief under the Act, and the statute of limitations, if that issue was raised in writing by the respondent.

[3] The administrative law judge’s decision was issued on August 8, 2014.  It was affirmed by the commission on September 11, 2015.  The complainant had an opportunity to appeal to circuit court, but did not do so.  Indeed, it appears that the complainant has waived this issue entirely. As noted in the Procedural History section of this decision, the initial determination did not address the contract renewal issue because the complainant conceded it had been covered by a prior complaint.  The complainant did not raise that issue in his appeal of the initial determination, and his petition for review does not contain any argument on this point.

[4] The complainant’s contention is that on October 18, 2013, the “Student Press Law Center” published an article in which it quoted the respondent as having provided the statements, “In December 2011, [Chancellor] Telfer told Shi that the university would not seek immediate dismissal” and that “Shi’s contract ended in May 2012 and was not renewed.”  These statements were found to be factual and true.

[5] As indicated in the Procedural History section of this decision, the complainant was given a chance to make the case that his inability to submit rebuttal material would interfere with his future employment opportunities, but failed to submit any response to the respondent’s motion to dismiss.