ADRIAN BOURQUE, Complainant

WASAU HOSPITAL CENTER, Respondent A

WAUSAU MEDICAL CENTER, Respondent B

An Administrative Law Judge (ALJ) for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on March 23, 1990, in which he ordered: (1) that Complainant's claim against Wausau Hospital Center be dismissed in its entirety; and (2) that the matter involving whether Wausau Medical Center retaliated against Complainant on February 15, 1983, when it informed him Wausau Medical Center had decided to hire a second radiation therapist be set for hearing, and that the remainder of the allegations against Wausau Medical Center be dismissed.

Complainant thereafter filed a timely petition seeking "review, of the decision of the hearing examiner dated March 23, 1990 dismissing the Co-Respondent, Wausau Hospital Center."

Respondent Wausau Medical Center also filed a petition seeking review of that portion of the ALJ's decision which ordered that a hearing be set on the issue of whether Wausau Medical Center retaliated against Complainant when it informed him Wausau Medical Center had decided to hire a second radiation therapist. However, Wausau Medical Center was notified that since this portion of the Order was a non-final order it was not appealable and that the Commission would not include this issue in its review of the case.

At the same time Complainant filed his petition for review of the ALJ's decision, he also filed with the ALJ a motion to "amend the pleadings" to conform to the findings of fact and conclusions of law set forth in the Department's April 17, 1985 Initial Determination. Wausau Hospital Center objected to this motion. On May 29, 1990, the ALJ issued an order stating that the Equal Rights Division had transferred the file to the Commission, that an appeal was pending in the matter and therefore the Division was without jurisdiction to entertain the Complainant's motion. The ALJ therefore ordered that Complainant's motion be transmitted to the Commission. Respondent Wausau Hospital Center subsequently objected to the ALJ's order transmitting the Complainant's motion to the Commission and Respondent Wausau Medical Center later joined in this objection

Complainant Bourque and Respondent Wausau Hospital Center have submitted written arguments to the Commission.

Based upon a review of the record in its entirety, and based on the alternative reason more fully set forth in the attached Memorandum Opinion, the Labor and Industry Review Commission hereby issues the following:

The decision of the Administrative Law Judge. (copy attached) dismissing the complaint against Wausau Hospital Center is affirmed and shall stand as the FINAL ORDER herein.

Dated and mailed April 2, 1992.

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

The Complainant herein alleged in a complaint filed with the Equal Employment Opportunity Commission (EEOC) on June 16, 1983, and subsequently referred to the Equal Rights Division (ERD) on June 24, 1983, that Wausau Medical Center (WMC) and Wausau Hospital Center (WHC) had retaliated against him for assisting three female employes who had filed charges of employment discrimination against WHC. Specifically, the complaint alleged that after three female employes (Joyce Elbe, Rosemary Walden and Karen Henschel) filed charges of employment discrimination (sex and age discrimination and retaliation) in 1981 and 1982, he assisted those employes by providing information and witnesses to support their charges and that since then he had been continually harassed by representatives of both Respondents. The complaint alleges that on March 17, 1982, following a complaint from WHC's vice president, Philip Aulwes, he was warned by WMC's president, Dr. W. K. Dernbach, to stay out of all hospital personnel issues and had been continually harassed by the Respondents since then. The complaint further alleges that on February 15, 1983, Complainant was notified by Dernbach that the Respondents had decided to hire a second radiation therapist which, if carried out, would result in a sharp decrease in his income. The complaint also alleges that several incidents of harassment have been closely linked to Complainant's actions on behalf of Ms. Henschel. The complaint states that, for example, Dernbach warned Complainant about absences from his department only a week after he had attended a hearing as a potential witness for Henschel. Finally, the complaint alleges that Complainant believes the Respondents have established a pattern or practice of intimidation directed against employes who file discrimination charges or protest employment discrimination in other ways.

Following issuance of a Determination of No Reasonable Cause and a Notice of Right to Sue by the EEOC on. February 28, 1984, the Complainant commenced a suit in federal court against WHC, WMC and Terence O'Rourke (President of WHC), alleging a violation of his rights under 42 U.S.C. § 1985(2), and retaliation under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA). Additionally, he alleged pendent state law claims for breach of contract, tortious interference with contract and claims for violations of sections 134.01 and 943.30, Wis. Stats.

As a result of Complainant's federal action, an Administrative Law Judge for the ERD issued an order placing Complainant's state ERD case in abeyance on June 7, 1985.

On March 31, 1986, the federal court entered an amended judgment dismissing, on their merits, Complainant's § 1985(2) action and the retaliation claims against WHC and O'Rourke under Title VII and the ADEA, and declining to exercise pendent jurisdiction over Complainant's state claims of breach of contract, tortious interference with contract and violation of secs. 134.01 and 943.30, Stats., as against WHC, WMC and O'Rourke. The state claims were thus dismissed without prejudice. Apparently, after the federal claims against WHC were dismissed, Complainant voluntarily dismissed his Title VII claim against WMC without prejudice to any state causes of action.

Complainant had meanwhile also filed a private action in state court in July 1985 against WHC, O'Rourke, John Ollinger and Philip Aulwes (both WHC vice presidents), WMC and Dernbach. There Complainant alleged violations of secs. 134.01 and 943.30, Wis. Stats., tortious interference with contract, breach of contract and defamation. On December 16, 1986, the circuit court dismissed this action. The court determined that Complainant's claims arose out of alleged retaliation for assisting three females in discrimination proceedings and that the Complainant's proper forum was before the Department of Industry, Labor and Human Relations under the Wisconsin Fair Employment Act (WFEA). On June 28, 1988, the court of appeals affirmed the circuit court's dismissal of Complainant's civil action. 145 Wis. 2d 589, 427 N.W.2d 433 (1988). Petition for review was denied by the Wisconsin Supreme Court.

In November 1988, Complainant requested that the proceedings in his case before the ERD be resumed.

On March 20, 1989, WHC filed a motion for summary judgment asserting that the doctrines of res judicata and collateral estoppel precluded relitigation of Complainant's alleged cause of action. WHC also filed a motion to dismiss Complainant's complaint asserting that it failed to state a claim upon which relief could be granted. WMC also filed a motion to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted, and alternatively, a motion for summary judgment on the ground that the prior proceedings collaterally estopped Complainant from bringing his claims before the ERD.

Examining the allegations in the complaint against WHC the ALJ ruled as follows: (1) that Complainant's allegation that he had been continually harassed recites no instances of actual harassment; that while Complainant does claim to have been warned to stay out of hospital personnel issues and told that WMC was going to hire a second radiation therapist, these two incidents do not constitute continual harassment, nor do they constitute a pattern or practice of illegal discrimination as alleged by Complainant; (2) that the only allegation that arguably states a claim against WHC -- Complainant's allegation that he was warned on 3/17/82, at the behest of WHC, to stay out of hospital personnel issues -- is barred by the 300-day statute of limitations; and (3) that WMC's announced intention to have a second radiation therapist does not state any connection to WHC; that assuming WMC decided to hire a second radiation therapist as a means of retaliating against Complainant for his efforts on behalf of the female complainants, Complainant had not, within the four corners of the complaint, stated any basis upon which it could be found that WHC violated the Act, and that if Complainant meant to say that WMC and WHC acted in concert, Complainant had not alleged it and the ALJ could not infer a claim where none is stated.

Examining the allegations in the complaint against WMC, the ALJ ruled as follows: (1) that the alleged conduct of WMC -- warning Complainant to stay out of all hospital personnel issues, announcement that WMC had decided to hire a second radiation therapist and warning him about absences from the department the week after attending a hearing as a potential witness on behalf of Henschel -- did not constitute a continuing violation thereby making all his allegations timely because such allegations do not demonstrate a series of acts sufficiently related in nature so as to transcend the time limitations; (2) that Complainant's allegation about the 3/17/82 warning to stay out of all hospital personnel issues considered separately is barred by the statute of limitations; (3) that Complainant's allegation regarding the warning about absenteeism from the department failed to make out a claim on the grounds that it contained no information from which it could be discerned whether or not it was anything other than a proper request by WMC that Complainant be present in the department, and because it may very well be untimely since no date was appended to that claim; and (4) however, that Complainant's claim that he was informed on 2/15/83 that WMC had decided to hire a second radiation therapist did state a claim of retaliation under the Act.

Finally, with respect to WHC's and WMC's arguments that Complainant's claim is barred by the doctrine of res judicata, the ALJ ruled that res judicata did not apply because of the manner in which Complainant's claims were extinguished in the federal and state court actions. Specifically, the ALJ ruled that res judicata did not apply with respect to the Complainant's state court action because there had been no adjudication on the merits of Complainant's claim in that case, that the court found it had no jurisdiction and dismissed the suit on that basis. With respect to Complainant's federal court action, the ALJ ruled that res judicata did not apply because when addressing the retaliation claim the court did not dismiss it on the merits; rather, it declined to exercise pendent jurisdiction and dismissed it on that basis.

Reviewing his complaint of discrimination, complainant argues on appeal that his complaint against WHC does state a _claim for relief based on retaliatory discrimination, and that such complaint states clearly and concisely the facts constituting allegations of discrimination against WHC as required by Wisconsin Administrative Code, Ind 88.02(1). Further, Complainant argues that if the Commission finds that the complaint did state a claim for relief against WHC based on the decision to recruit a second radiation therapist, then Complainant's other allegations (e.g., 3/17/82 warning at behest of WHC to stay out of all hospital personnel issues) against WHC are actionable and timely against WHC under a continuing violation theory. Alternatively, the Complainant further argues that should the Commission find that his complaint is deficient, the Commission should grant his motion to amend the complaint to conform to the findings of fact set forth in the ERD's Initial Determination. Complainant argues that WHC would not be unfairly deprived of a timely opportunity to meet any issues presented by such an amendment since all the issues which Complainant seeks to include in his complaint have already been addressed by the investigator who would have provided WHC with ample opportunity to respond to each issue.

In response, WHC argues that the Commission should affirm the dismissal of the complaint against it, or alternatively, the Commission should reverse that part of the ALJ's decision which rejects the res judicata ground for dismissal of the Complainant's complaint against WHC.

The commission finds that the ALJ erred in concluding that Complainant's ERD complaint of discrimination against WHC was not barred by the doctrine of res judicata. Accordingly, the Commission reverses that part of the ALJ's decision which rejects the res judicata ground for dismissal of the complaint against WHC. Further, since a correct determination on this issue is dispositive of Complainant's entire complaint against WHC the Commission finds that it is not necessary to address the Complainant's arguments regarding the sufficiency of his complaint against WHC, or his motion to amend his complaint.

The doctrine of res judicata operates to bar relitigation of the same cause of action between the same parties, or their privies, where the first litigation resulted in a valid, final judgment on the merits. Juneau Square Corporation v. 1st Wisconsin National Bank, 122 Wis. 2d 673, 682, 364 N.W.2d 164 (Ct. App. 1985). The doctrine of res judicata makes a final judgment 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 proceeding. DePratt v. West Bend Mutual Insurance Co., 113 Wis. 2d 306, 310, 334 N.W.2d 883 (1983). The purpose of the doctrine is to prevent repetitive litigation and it is based on the assumption that fairness to the defendant and sound judicial administration require that at some point litigation over the particular controversy must come to an end. Id. at 311.

In order for the doctrine of res judicata to apply, the following three elements must be present: (1) a final judgment on the merits; (2) an identity of the parties; and (3) an identity of causes of action. DePratt, 113 Wis. 2d at 310-311.

With respect to the judgment against Complainant in his federal action against WHC, the ALJ found that res judicata did not apply because "When addressing the retaliation claim the (federal) court did not dismiss it on the merits; rather, it declined to exercise pendent jurisdiction and dismissed it on that basis . . . there has been no adjudication on the merits and res judicata cannot apply." ALJ decision at page 6.

The fact is, however, the federal court did dismiss Complainant's retaliation claims against WHC on the merits. It was the Complainant's pendent state claims involving alleged breach of contract, tortious interference with contract and violations of secs. 134.01 and 943.30, Wis. Stats., of which the federal court refused to take jurisdiction. The district court's March 31,1986 judgment reads as follows:

"That judgment is entered dismissing the first, second, and third causes of action (referring to Complainant's claims of conspiracy under 42 U.S.C. § 1985(2), retaliation for opposition to discriminatory practices made illegal under Title VII and retaliation for opposition to discriminatory practices made illegal under the ADEA, respectively) on the plaintiff's second amended complaint as against defendants Wausau Hospital Center and Terence O'Rourke on their merits, and dismissing the plaintiff's fourth, fifth, sixth, and seventh causes of action (referring to Complainant's state claims of breach of contract, tortious interference with contract, and violation of secs. 943.30 and 134.01, Wis. Stats., respectively) in plaintiff's second amended complaint as against the defendants Wausau Hospital Center, Wausau Medical Center, and Terence O'Rourke, without prejudice." (emphasis added)

Thus, there has been a final, valid judgment on the merits of Complainant's claim of retaliation against WHC. Complainant does not argue that there is no identity of parties. Clearly there is since WHC has been a defendant in all of Complainant's actions.

What Complainant does argue is that res judicata does not apply because there is no identity of causes of action between his prior federal claim and his WFEA claim. That is, Complainant alleges there is a difference between Title VII and the Wisconsin Fair Employment Act. Specifically, Complainant argues that his prior federal claim against WHC was dismissed on the grounds that WHC was "not an employer within the meaning of Title VII," that "Title VII's definition of 'employer/employee' is much more narrow than the definition provided by the WFEA," and that "the WFEA has been interpreted as including independent contractors among those individuals covered by the Act."

However, even assuming for purposes of argument that Complainant's assertions about Title VII and the Wisconsin Fair Employment Act differences is accurate, this assertion will not allow the instant claim to escape the doctrine of res judicata. Wisconsin has adopted the transactional definition of cause of action, which treats all claims arising out of one factual situation as part of a single cause of action and to require them all to be litigated together. Juneau Square Corporation, 122 Wis. 2d at 682. Under this definition, citing Harper Plastics v. Amoco Chemicals Corp., 657 F.2d 939, 944 (7th Cir. 1981), the commission has previously stated in Maguire v. Marquette University (LIRC, 8/8/88), that "While leaving open the possibility that one transaction could lead to more than one cause of action, (the Harper court) nevertheless stated that '. . . the primary test for determining if two suits are based on the same cause of action is whether both suits arise out of the same basic factual situation." Maguire at p. 14. See also, Schaeffer v. State Personnel Commission, 150 Wis. 2d 132, 441 N.W.2d (1989). At issue there was whether the trial court erred as a matter of law when it ruled that a federal court judgment on Schaeffer's complaint of alleged constitutional violations was res judicata on Schaeffer's handicap discrimination and retaliation claims under the WFEA. Noting that Schaeffer's state claim arose out of the same events and the same conduct of Guard personnel as did the federal action, and that the Restatement (Second) of Judgments indicated that neither the details of the claim nor the facts, evidence or theories of recovery need be identical in order for the former action to bar the latter, the court of appeals concluded that the trial court correctly decided the issue and affirmed the order of dismissal by the trial court.

Both Complainant's federal court action and the instant case against WHC arise out of the same basic factual situation. In Complainant's federal lawsuit, he alleged in support of his claims under 42 U.S.C. § 1985(2), Title VII and the ADEA, that the named defendants (WHC, WMC & O' Rourke) conspired to retaliate against him for his opposition to discriminatory practices made unlawful by Title VII and the ADEA, that after his advocacy for and assistance to three female employes who had filed complaints of discrimination against WHC, Wausau Medical Center's president and the board of the Wausau Medical Center told him to stay out of all hospital personnel issues, and that an officer of WMC told him WHC and WMC had decided to hire a second radiation therapist. In the instant case the Complainant has alleged that following a complaint by an officer of WHC an officer of WMC told him he should stay out of all hospital personnel issues ,and that an officer of WMC told him that the Respondents had decided to hire a second radiation therapist, and that these statements were in retaliation for his alleged assistance of three employes of WHC who had filed charges of employment discrimination against WHC. It is thus clear that both Complainant's federal and state ERD claims involve only a single cause of action.

Complainant argues, however, that the federal court judgment cannot be asserted as a bar to his action before the ERD since he could not have brought a private cause of action under the WFEA in federal court, citing Mursch v. Van Dorn Company, 627 F. Supp. 1310 (W.D. Dist. 1986), aff'd., 851 F.2d 990 (7th Cir. 1988). However, in asserting that res judicata does not apply because he could not have had his state ERD claim decided in federal court, Complainant fails to understand the res judicata doctrine. For purposes of res judicata, a basic factual situation generally gives rise to only one cause of action no matter how many. different theories of relief may apply. Juneau Square Corp., 122 Wis. 2d at 684. See also, Weatherall v. Personnel Commission, No. 84-0047-PC-ER (10/7/87), aff'd., Ozaukee County Circuit Court, Case No. 87-CV-481 B1 (9/15/88). There, the Personnel Commission applied the res judicata doctrine to bar proceedings under the WFEA after a federal judgment on the same claim, flatly rejecting the same argument that Complainant now makes stating:

"Once it has been determined that both proceedings involve the same cause of action, the operation of res judicata serves to foreclose relitigation of the same matter in a different forum under a different legal theory. It is not material whether that legal theory could have been litigated in the first forum. See Patzer v. Board of Regents, 37 FEP Cases 1847, 1850 (7th Cir. 1985):

'Patzer argues that his Title VII claim is not a matter that might have been litigated in the state court proceeding, because he could not have introduced it in the administrative proceeding or in the state court review; consequently, it is not barred. The fallacy in this argument is that the claim he makes in his Title VII suit is identical for purposes of res judicata to the claim he made in the administrative proceedings; that claim has therefore already been litigated. The "might have been litigated" provision comes into play only for claims or causes of action distinct from the one actually litigated.' "

Weatherall, No. 84-0047-PC-ER, slip opinion at 6-7 (quoting Patzer v. Board of Regents of the University of Wisconsin System, 763 F.2d 851, 855 (7th Cir. 198.5)). (emphasis added)

Finding that all of the elements of res judicata are present, the Commission concludes that the Complainant is barred from pursuing the instant case against WHC.

Finally, since the Complainant has not petitioned for a review of any of those portions of his complaint against WMC which were dismissed by the ALJ, the ALJ's decision with respect to those matters are final. Accordingly, what remains to be heard by the Equal Rights Division is Complainant's allegation that WMC retaliated against him when it informed him WMC had decided to hire a second radiation therapist.

125

[ Search ER Decisions ] - [ ER Decision Digest ] - [ ER Legal Resources ] - [ LIRC Home Page ]

uploaded 2004/07/13