MICHAEL HOPKINS, Complainant

POLICE & FIRE COMMISSION OF KENOSHA, 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.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed March 28, 2003
hopkimi . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

On October 25, 2002, Michael Hopkins filed a discrimination complaint against the respondent Kenosha Police and Fire Commission with the Equal Rights Division. Hopkins' complaint indicated that he believed the respondent violated the Wisconsin Fair Employment Act (WFEA) and Wis. Stat. § 62.13. Hopkins cited his race, Hispanic, as the basis for his complaint.

In his statement of the respondent's action believed to be discriminatory, Hopkins alleged that he had filed a formal complaint as an aggrieved person with the Police & Fire Commission against members of management of his former employer, the Kenosha Fire Department, but the Commission had not and would not act on his complaint while it has acted on non-minority complaints. Under § 62.13, Stat., any "aggrieved person" may file a charge with the Police & Fire Commission. Hopkins also alleged that the pattern of discrimination continued against him, including pornographic material depicting Hispanic women.

On October 25, 2002, an equal rights officer for the Division sent correspondence to Hopkins asking for a clarification of the basis of his discrimination claim against the respondent, and enclosed a new complaint form.

Hopkins filed the new complaint form with the Division on October 30, 2002. In this second complaint Hopkins again alleged a violation of the WFEA and § 62.13, and he alleged that the discrimination was based on his Hispanic ancestry. In this second complaint, however, Hopkins also alleged that he was retaliated against based on activities protected under the WFEA. In this regard, Hopkins states:

"Filing prior ERD case Receiving probable cause finding and switching to EEOC. In fact the charges I Filed with Commission As An Aggrieved person under WI Stat. 62.13 are Against individual in which [Police &] Fire Commission oversees but in this case refuse to discipline for threatening conduct & Remark"

(Emphasis added.)

Elsewhere in the complaint Hopkins indicated that the acts of alleged discrimination or retaliation were harassment and "failure to (give) same consideration as non-hispanic". In section 6 of the complaint, Hopkins stated that the first alleged discriminatory action that had been taken against him was a suspension, but apparently unsure as to when this occurred, he lists several years (1996, 1997 and 1998) followed by a question mark. Hopkins states that the most recent action taken against him was "Failure to take action ignored legitimate charge", and that this most recent action happened in May 2002. Additionally, Hopkins provided the following response as his discrimination statement under section 7 of the complaint:

"I have been treated differently by the Police & Fire Commission As opposed Against non-hispanic individuals. In May I filed for the Second time formal charges with the Commission as an aggrieved person under WI statute 62.13. The Commission hasn't acted with the Ironclad Evidence submitted. The Commission has Acted Against me in which a probable cause finding has been Entered by ERD.-which also leads to retaliation having their ability of allowing City of Kenosha to discriminate [without ?] being Challenged. The Commission allows conduct of a pattern i.e. such as 'phongraphic material' disparaging hispanic's only to criticize for being shown-but no action taken against perpetrators"

(Emphasis added.)

On October 31, 2002, the equal rights officer issued a Preliminary Determination stating that Hopkins' complaint could not be processed because he had filed a complaint for which relief could not be granted under the Wisconsin Fair Employment Law.

On November 4, 2002, Hopkins filed an appeal of the Preliminary Determination, and the matter was subsequently assigned to ALJ DeLaO. The ALJ summarizes Hopkins' second complaint as follows:

"The Complainant again alleges that he was discriminated against because of his Hispanic ancestry and that he believes that he was the victim of retaliation for filing previous complaints. The crux of the Complainant's complaint is described as being the failure of the Police and Fire Commission to investigate the Complainant's complaint filed as 'an aggrieved person' under sec. 62.13, Stats. The Complainant alleges that the Police & Fire Commission has refused to respond to his complaint because of his Hispanic heritage and because the Complainant has filed previous WFEA complaints against the Respondent. As a result of its failure to act upon the Complainant's complaint under sec. 62.13, Stats., the Complainant alleges that the Commission is allowing a pattern of pornographic material demeaning Hispanic females to be shown."

Subsequently, the ALJ goes on to state as follows:

"According to the Complainant's first complaint filed on October 25, 2002, the Complainant is no longer an employee of the City of Kenosha. The Complainant is therefore not alleging that there is any act of employment discrimination that is occurring. Instead, it appears the Complainant is alleging that he is being discriminated against by the Police & Fire Commission because the Commission refused to conduct an investigation based on the filing of a complaint by an aggrieved person (the Complainant) under sec. 62.13, Stats.

While the issue raised by the Complainant is of concern, the Complainant has not established that the Division has jurisdiction over the complaint filed by the Complainant under the WFEA. The Division's authority to act under the WFEA is limited to complaints of employment discrimination and retaliation against employees with respect to employee (sic) related activities. The Division also has authority under the WFEA to hear complaints of retaliation by former employees that involve employment related acts of retaliation. The Complainant has failed to establish in either his initial complaint or his subsequent complaint that he is alleging an act of employment discrimination or retaliation that is related to an employment activity. It appears that the Complainant is unhappy about what he feels to be discriminatory or retaliatory acts by the Respondent involving actions outside of the employment context. In view of that, the Administrative Law Judge believes that [it] is appropriate to affirm the investigator's dismissal of the Complainant's complaint in this matter."

Hopkins petitions for a review of the ALJ's decision.

What is clear from the two complaints that Hopkins filed with the Equal Rights Division is that they include allegations of discrimination by the Police & Fire Commission on the basis of his Hispanic ancestry because of its refusal to investigate a complaint he filed as an "aggrieved person" under Wis. Stat. 62.13 against management personnel of his former employer, the Kenosha Fire Department. Further, it is also fairly clear from Hopkins' ERD complaints that the complaints he filed as an aggrieved person with the Police & Fire Commission include allegations that personnel of his former employer have engaged in threatening conduct and remarks and the showing of pornographic material that disparages Hispanic women.

However, as noted by the ALJ:

"The Division's authority to act under the WFEA is limited to complaints of employment discrimination and retaliation against employees with respect to [employment] related activities. The Division also has authority under the WFEA to hear complaints of retaliation by former employees that involve employment related acts of retaliation."

Hopkins is no longer employed by the Kenosha Fire Department. Hopkins's complaints fail to explain how his former employer's alleged "threatening conduct and remarks" or "the showing of pornographic material that disparages Hispanic women" involves acts of employment discrimination against him, or employment related acts of retaliation against him.

What is not clear from Hopkins' ERD complaints is what he contends was an employment-related act of retaliation by the Police and Fire Commission. In his second complaint Hopkins does allege that he was retaliated against and he writes: "Filing prior ERD Case Receiving probable cause finding and switching to EEOC." Also, his second complaint contains the allegation that "The Commission has acted against me in which a probable cause finding has been Entered by ERD.-which also leads to retaliation having their ability of allowing City of Kenosha to discriminate [without ?] being challenged." It does not become evident until Hopkins' petition for review, however, that Hopkins is apparently alleging that an employment-related act of retaliation by the Police & Fire Commission has occurred. Perhaps the reason for the lack of clarity in Hopkins' ERD complaints is that he is proceeding pro se in this matter. Hopkins' contention is that the Police & Fire Commission has terminated his employment as a result of his complaint of discrimination. In his petition for review Hopkins asserts:

"ON APRIL 24, 2002 I WAS ILLEGALY (SIC) TERMINATED FOR NOT ACCEPTING AN AGREEMENT WHICH INCLUDED DROPPING FORMER ERD CASE NOW FEDERAL CASE #00-C-030."

Evidently, Hopkins' contention is that the ERD issued a probable cause determination on a complaint of discrimination that he filed against the City of Kenosha, that he then pursued the matter with the EEOC and subsequently filed a federal action where the matter was pending when the Police & Fire Commission made him a settlement offer, which he refused because it required him to drop his federal action, thereby resulting in the termination of his employment.

However, even if this contention by Hopkins had been clearly set forth in his first two ERD complaints, the commission finds no basis for changing the ALJ's order dismissing Hopkins' WFEA complaint. The activity complained of here by Hopkins -- refusal to accept a settlement in his federal court action -- presumably a Title VII action, is a matter that Hopkins should pursue under Title VII (1),  not the WFEA. While Hopkins' complaint may have originated with the ERD, the alleged employment-related act of retaliation being complained of by Hopkins occurred in connection with his federal court action.

Hopkins apparently recognizes this. At the very end of his petition he asks the question: "IS THE OPTION YET AVAILABLE TO TRANSFER TO EEOC?" This query is an implicit acknowledgement by Hopkins that he may be in the wrong forum. Whether or not the EEOC will allow Hopkins to pursue a complaint of retaliation with that agency, however, is a matter that is more appropriate for Hopkins to take up with the EEOC.

cc: Attorney Patrick J. Sheehan

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(1)( Back ) Section 704(a) of Title VII provides, in relevant part, as follows: "It shall be an unlawful employment practice for an employer to discriminate against any of his employees.because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 U.S.C. § 2000e-3(a).

uploaded 2003/04/04