The Wisconsin Equal Rights (ER) Decision Digest -- Sections 716-743
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716
Appeal of preliminary determination dismissing complaint.A
hearing should be held in the case of an appeal of a preliminary determination
that turns on disputed facts.
Williams v. State of Wisconsin - DVR (LIRC,
06/08/17).
The complainant filed untimely appeals of an initial determination of no probable cause and a preliminary determination partially dismissing her complaint. There are circumstances in which a late appeal does not foreclose the possibility that the appeal could be addressed and ruled upon, such as in Carlson v. SPF North America (LIRC, 04/27/2007), where a party did not have a reasonable opportunity to receive or become aware of the determination within the appeal period. That exception does not apply here, where the complainant left town without making arrangements to have her mail attended to. Sipprell v. Kenosha Unified School District (LIRC, 01/15/2015).
In this case, the written appeal of a preliminary determination dismissing the complaint was not received until 24 days after the preliminary determination was issued, and it was, thus, late. The rule governing appeals of preliminary determinations provides no exceptions for late appeals. The Complainant had vision problems, but prior to the issuance of the preliminary determination he had not requested documents to be sent to him in large print. The investigator's mailing of a large print version of the preliminary determination to the Complainant at his request did not constitute issuance of a new determination so as to set a new appeal period. Nemec v. School District Of Washburn (LIRC, 01/30/14)
A hearing should be held in the case of an appeal of a Preliminary Determination which turns on disputed factual issues. Bedynek-Stumm v. City of Madison (LIRC, 11/30/01).
The "preliminary review of complaints" rule found in sec. ILHR 218.05, Wis. Admin. Code, applies to every complaint filed. A complaint is filed when it is received by the Equal Rights Division. If the Division concluded that a complaint failed to identify a Respondent that was subject to the Act, then it was incumbent on it to follow the procedures of the "preliminary review of complaints" rule, rather than to "reject" the complaint and return it to the Complainant with instructions to provide different information in the complaint. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96). [Ed. Note: Wis. Admin. Code ILHR 218.05 has been re-named Wis. Admin. Code DWD 218.05]
An investigator for the Equal Rights Division concluded that some of the allegations of race discrimination in a complaint were barred by the statute of limitations. The investigator issued a Preliminary Determination and Order dismissing those untimely allegations. The investigator also issued an Initial Determination finding that there was no probable cause to believe that other portions of the complaint (which were timely) established reason to believe that the Respondent had discriminated against the Complainant on the basis of race. The Complainant filed a letter stating that he wished to appeal the finding made in his case. The Division certified the case to hearing on the appeal of the no probable cause portion of the case. The appeal of the Preliminary Determination was referred to the Administrator of the Equal Rights Division for a decision regarding the statute of limitations issue with respect to the remaining portions of the complaint. The Administrator of the Equal Rights Division issued a decision indicating, inter alia, that the Initial Determination in this matter should have been labeled a Preliminary Determination, and that the complaint was dismissed because it was untimely. Subsequently, a notice of hearing was issued on the no probable appeal portion of the case. The Administrative Law Judge assigned to the case dismissed the complaint on the ground that the decision of the Administrator had dismissed the entire complaint. The Labor and Industry Review Commission reversed this decision, believing that the Administrator of the Equal Rights Division had made an essentially ministerial error of failing to observe that there had been not one but two decisions issued by the investigator. The Commission therefore concluded that the Administrator had not intended to dismiss the entire complaint, but only the portions of it as to which the investigator had made a finding of untimeliness. Jones v. Milwaukee County (LIRC, 10/13/94).
717 Effect of pre-filing waiver and release of claims
Tendering back the consideration the complainant received for signing a waiver and release is a prerequisite to challenging the validity of the waiver and release. Where the complainant agreed to do so, and in fact sent a check to the respondent's attorney, it was error to dismiss his complaint because the check was returned for insufficient funds, particularly where the respondent's attorney waited more than a month after the check was tendered to cash it. Xu v. Epic Systems Corp. (LIRC, 01/31/17).
Undisputed facts persuade LIRC that the Complainant knowingly and willingly waived his rights to bring a complaint of employment discrimination against his employer. The Complainant's lack of knowledge that his employer had made certain changes in his personnel record did not make the waiver not "knowing." Alternatively, dismissal was also required here because the Complainant did not tender back the payment he received in exchange for his waiver. Musial v. AECOM Government Services, Inc. (LIRC, 07/21/14)
Although complainants are generally required to tender back any consideration received in exchange for the waiver of their rights to pursue discrimination claims, as a condition precedent to challenging the validity of such waiver, there was a special circumstance in this case: the settlement agreement contained a provision stating that "reimbursement shall occur if, and only if, employee receives a judgment against the [employer]." The provision anticipates that any return of the consideration will come out of a recovery on the underlying discrimination claim. The tender-back requirement therefore does not apply. Carson v. Columbia St. Mary's (LIRC, 03/12/13).
In this case in which the employee is challenging the validity of a severance agreement waiving her claims against the employer on the grounds that she did not knowingly and voluntarily waive her rights when she signed it, there were material disputes of fact as to what was said, including whether the complainant was told particular things about the effect of the agreement. The commission concludes that determination of whether employee knowingly and voluntarily waived her rights when she signed the severance agreement should be made based on assessment of credibility of testimony given at a hearing. Carson v. Columbia St. Mary's (LIRC, 03/12/13).
The severance agreement in this case, which waived the employee's claims against the employer, does not have an 'integration' clause indicating that it is the final, full and complete expression of the parties' agreement. Therefore, the parol evidence rule does not preclude the employee from relying on a claim that oral statements by an agent of the employer altered the terms of the written settlement agreement subsequently entered into. Carson v. Columbia St. Mary's (LIRC, 03/12/13).
The Complainant voluntarily entered into a severance agreement waiving the right to file any claims against the Respondent under the Wisconsin Fair Employment Act. The Complainant's argument that the agreement was nullified by the Respondent's alleged breach of the agreement was rejected. The Equal Rights Division does not have jurisdiction to decide whether a severance agreement has been breached. It is for a court to determine whether such an agreement has been breached and, if so, what remedy is available to the Complainant. Duquaine v. Wisconsin Evangelical Lutheran Synod (LIRC 03/31/06).
The Complainant made a voluntary and knowing waiver of her right to bring an employment discrimination complaint against the Respondent under the Wisconsin Fair Employment Act. There was no showing that she was induced to sign the agreement through any fraud. The Complainant was aware of facts sufficient to lead her to suspect age discrimination at the time of her termination, and the release did not hide the fact that the Respondent was seeking to protect itself from any possible age discrimination claims. Moreover, the Respondent did not obtain the Complainant’s termination in exchange for the benefits it was giving her under the agreement; the termination was something the employer (in the absence of any contractual right to a term of employment) had the power to carry out regardless of the agreement. What the Respondent obtained was the release of claims in exchange for the benefits it gave the Complainant, and there was no fraud in connection with that exchange. The Complainant had the opportunity to consult with an attorney of her own choosing. She was given forty-five days to consider the release agreement. Following execution of the agreement, she was given seven days to revoke her acceptance of the agreement. Semandel v. Briggs & Stratton (LIRC, 02/24/05).
A Complainant cannot challenge the validity of a separation agreement and, at the same time, keep the proceeds of that agreement. However, it is sufficient if the Complainant offers to return the severance payment, even if payment has not yet been made. In this case, the Complainant indicated that she did not intend to return the payment. The Administrative Law Judge dismissed her complaint. The Complainant’s offer to return the severance payment at the time that she filed her petition for review of the dismissal of her complaint was self-serving; however, it might be sufficient to enable the Complainant to challenge the validity of the underlying agreement on appeal. Wesley v. TMP Worldwide (LIRC, 02/07/03).
An agreement into which a Complainant has knowingly and voluntarily entered will not be disturbed simply because the Complainant has had second thoughts about the wisdom of entering into such an agreement. The fact that a Complainant has changed his or her mind about the wisdom of what they have done does not change the binding nature of the agreement. Wesley v. TMP Worldwide (LIRC, 02/07/03).
The Complainant’s allegations of fraud were insufficient to void a severance agreement where the offer of a severance package was a separate issue from the termination itself. The Complainant alleged that, at the time she signed her severance agreement, which released all known and unknown claims against Respondent, she had been told by Respondent that her position was being eliminated due to a restructuring of the company. She later learned (after the expiration of the agreement’s revocation period) that her former position had actually been assumed by a male employee. The Complainant stated that she suspected at the time of separation that she had been the victim of discrimination, and yet she entered into the severance agreement despite this suspicion. Wesley v. TMP Worldwide (LIRC, 02/07/03).
The following factors should be applied as part of a "totality of circumstances" test to determine whether a Complainant made a knowing and voluntary waiver of her right to pursue an employment discrimination claim against a Respondent under the Wisconsin Fair Employment Act: (1) the Complainant’s education and business experience, (2) the amount of time the Complainant had to examine the agreement before signing it, (3) the Complainant’s role in determining the terms of the agreement, (4) the clarity of the agreement, (5) whether the Complainant was represented by counsel or consulted with an attorney, (6) whether the consideration given in exchange for the waiver exceeded employee benefits to which the Complainant was already entitled by contract or law, and (7) whether the Complainant was encouraged to consult an attorney and whether the Complainant knew or should have known her rights upon execution of the release. That a Complainant chooses not to consult an attorney does not undermine a finding that a release was signed knowingly and voluntarily. It should normally suffice for the employer to suggest that the employee may want to consult an attorney. Further, the fact that a Complainant did not play a role in deciding the terms of the agreement is not a sufficient basis, in and of itself, upon which to conclude that the waiver was not knowing and voluntary. Further, while a Complainant’s particular financial circumstances may have made it difficult for her to reject the agreement, a release of claims will nevertheless be upheld if she had a meaningful choice, in that she could have consulted an attorney and elected to pursue her legal rights rather than execute the release agreement. Wesley v. TMP Worldwide (LIRC, 02/07/03).
The Complainant’s complaint of discrimination was foreclosed based upon the Agreement of Resignation and Release he entered into with the Respondent. Under the agreement, the Complainant irrevocably and unconditionally released the Respondent from any and all claims arising prior to the signing of the agreement. The Complainant objected to the validity of the release. However, the totality of the circumstances demonstrated that the agreement was valid. Under the agreement the Respondent agreed to provide the Complainant with group health insurance benefits for three months as consideration for signing the agreement. The Complainant was given three weeks to examine the agreement before signing it, and after signing it, another week to change his mind and rescind it. He was encouraged to review the agreement with a representative of his choice prior to signing it, and he in fact did consult an attorney prior to signing it. The mere fact that the Complainant found himself in financial difficulties and that he had to care for his family and pay his bills did not constitute duress. The record shows that there was a knowing and voluntary waiver of rights under the Wisconsin Fair Employment Act. Meltz v. City of Appleton (LIRC, 12/27/01).
Following her discharge, the Complainant signed a waiver and release which specifically waived claims the Complainant may have had under the Wisconsin Fair Employment Act. The Complainant subsequently filed a complaint of discrimination with the Equal Rights Division. She alleged that the contract containing the waiver and release was null and void because it had been breached by the Respondent. However, an alleged breach of a contract does not make the contract null and void. The Complainant had the right to go to court to enforce the contract and to seek a court order that the Respondent comply with the terms of the contract. The Equal Rights Division does not have jurisdiction to decide breach of contract questions regarding private agreements. The Complainant willingly and voluntarily signed the agreement, with the advice of legal counsel and with adequate time to consider the agreement. Therefore, the Equal Rights Division properly dismissed her complaint. On appeal to LIRC, the Complainant asserted for the first time that there was duress in the signing of the agreement. However, an assertion that a settlement agreement was entered into based on poor advice from an attorney does not provide a basis for the Equal Rights Division to overlook the existence of a waiver and release directed expressly to claims under the Wisconsin Fair Employment Act. Welles v. Einhorn Assoc. (LIRC, 04/19/00).
A Complainant is required to tender back the consideration received in exchange for a waiver of her rights as a condition precedent to challenging the validity of the waiver. Lynch v. Zalk Joseph's Fabricators (LIRC, 07/17/96).
The Complainant's claim that she did not know "the real reason" for her discharge at the time she signed a release agreement was immaterial since the agreement clearly noted that it was a release of all "known and unknown" claims against the employer. Release agreements containing this language constitute a valid and binding waiver of the right to bring a subsequent claim of alleged discrimination. Further, the fact that the agreement expressly advised the Complainant to consult with an attorney prior to executing the agreement, and gave her several weeks to consider whether or not to execute the release, established that she had a meaningful choice when presented with the release agreement. The fact that the Complainant chose not to consult an attorney did not undermine a finding that the release was signed knowingly and voluntarily. Lynch v. Zalk Joseph's Fabricators (LIRC, 07/17/96).
A Complainant's offer to return previously received pension benefits to the employer, even where the monies had not yet actually been returned, was sufficient to allow him to challenge the validity of a release of claims arising out of his employment including, but not limited to, any alleged violation of state or federal measures which prohibit employment discrimination. Grahl v. Mercury Marine (LIRC, 12/04/92).
The totality of the circumstances should be used in determining whether there has been a knowing and voluntary waiver of rights under the WFEA. Although giving an employe an opportunity to negotiate the terms of a release and encouraging the employe to consult with an attorney are factors to consider in determining whether a release was knowing or voluntary, such factors are not mandatory requirements and a release could be found valid even in their absence. In this case, a release was determined to have been knowing and voluntary where the release was clear in its language, where a reasonable amount of time was allowed to consider whether or not to sign it, where the consideration given exceeded the amount of pension benefits the employe was otherwise entitled to receive, and where the employe had a high school education and had been a management employe who had many years of business experience and who had signed or had been a party to numerous contracts. Grahl v. Mercury Marine (LIRC, 12/04/92).
Where the Respondent gave the Complainants special benefits in consideration for the Complainants' promises not to sue the employer for any employment-related claim, the Complainants could not retain the consideration they received pursuant to those agreements while maintaining age discrimination claims against the Respondent, absent fraud on the part of the Respondent. Giese & Field v. Wausau Ins. (LIRC, 10/25/88).
The Complainant was terminated abruptly and offered severance pay on the condition that he execute a release waiving his rights to pursue a claim of discrimination against the employer. The court, characterizing the situation as one of "hurry up, get out of here, just the sign the papers if you want severance pay or leave," concluded that the release was signed under duress and is void as against public policy and is not enforceable. Thurmond v. Webster Elec. Co. (Racine Co. Cir. Ct., 07/30/85).
The Complainant's statement that she would forego all rights relating to her alleged discriminatory termination does not constitute a waiver because her right to be free from sex discrimination serves an important public policy. Hoyer v. LIRC (Milwaukee Public Library), (Dane Co. Cir. Ct., 11/10/83).
719 Miscellaneous
Specific arguments in the Complainant's petition for review are considered abandoned when the Complainant fails to mention them in its brief, the Respondent argues in reply that the Complainant has abandoned them, and the Complainant does not challenge that argument in its reply brief. Liddell v. Kleen Test Products, Inc. (LIRC, 04/11/14).
For the Equal Rights Division to give preclusive effect to an EEOC investigation result and to dismiss a complaint on that basis without providing an opportunity for hearing would be improper as a matter of law. This is because EEOC investigations are ex parte. They do not allow for any form of confrontation or examination of adverse witnesses and they are not, standing alone, sufficient to satisfy the requirements of due process. Banty v. Dings Co. Magnetic Group (LIRC, 07/31/12).
The Equal Rights Division and the EEOC have a work-sharing agreement which provides for the cross-filing of complaints. Section DWD 218.03(5), Wis. Admin. Code, provides that when a complaint is deferred to the ERD by the EEOC, it is considered 'filed' with the ERD when it is received by the deferring agency. Aldrich v. LIRC, 2012 WI 53, 341 Wis. 2d 36, 814 N.W.2d 433.
The administrative rules of the Equal Rights Division provide that a complaint may be filed in person at any Division office, or that it may be mailed to one of two specified Division offices. Other possible methods of filing a complaint are not permitted. A complaint may not be filed by fax, absent an administrative rule expressly allowing such filings. Hinsa v. Ponsse USA (LIRC, 08/05/05)
The Personnel Commission has the discretion to reject a complaint under certain circumstances. Sec. 111.39(1), Wis. Stats., provides that a complaint of discrimination "may" be received and investigated if it is filed no more than 300 days after the alleged discrimination occurred. A quasi-judicial administrative agency must be viewed as having some ability to limit access by individuals who have abused the legal process in the past. To conclude otherwise would allow one individual to paralyze the operation of the Commission, in light of its finite resources. Balele v. Dept. of Administration, et al. (Wis. Personnel Comm., 07/31/02).
The Personnel Commission limited the Complainant’s filing of new cases based on the following circumstances: (1) The Complainant had filed 56 complaints with the Personnel Commission between 1987 and 2002 (The Complainant’s filings represented 3.5% of all the complaints received by the Commission during a six year period), (2) the Complainant had not prevailed in any of his cases before the Personnel Commission, or on appeal, (3) the Complainant had acted improperly during the course of a number of proceedings arising from his complaints before the Commission, (4) the Complainant had failed to pay a $398.11 discovery sanction imposed by the Commission in one of his cases, (5) the Complainant has directed ad hominem attacks against counsel for a Respondent, (6) the Complainant had made extensive use of the discovery process, and the discovery requests were burdensome. All of these circumstances supported the imposition of sanctions against the Complainant. Therefore, all of the cases the Complainant had pending against the named Respondents were stayed and the Complainant was barred from filing any new complaints against any of those Respondents until the Complainant paid all the monies due the State of Wisconsin arising from three circuit court proceedings that arose out of cases originally filed with the Personnel Commission. Balele v. Dept. of Admin., et al. (Wis. Personnel Comm., 07/31/02).
The Equal Rights Division has adopted very specific administrative rules which provide the process by which a complaint may be disposed of before it is certified to hearing. If a complaint which meets the standards set forth in the rules is filed, it may thereafter only be disposed of in one of the ways specifically set forth in the rules: (1) It may be dismissed as part of a preliminary review process, (2) it may be investigated, or (3) it may be dismissed based upon the Complainant's request for withdrawal. (A dismissal based on a complainant's representation that he is no longer interested in pursuing the complaint must be made based only on a written withdrawal signed by the complainant or the complainant's authorized representative). The complaints in this matter were never made the subject of a written request for withdrawal. They were never dismissed. They are, therefore, still pending until they are disposed of on one of the bases provided for in the ERD's rules. Pasternak v. Goodman Forest Indus. (LIRC, 04/15/87).
Where an employe filed a motion to intervene in a proceeding brought by another employe, in which it had been found that there was probable cause to believe that discrimination occurred in the establishment of an employment register, the Commission denied the request for leave to intervene on the grounds that the intervenor did not file his motion to intervene within 300 days of the date of the establishment of the register, which was the subject of his complaint. Schroeder v. DHSS (Wis. Personnel Comm., 11/12/86).
720 Investigation
721 Generally
On appeal to the Labor and Industry Review Commission, the Complainant referenced certain information which she alleged was improperly presented to, and was improperly relied upon by, the Equal Rights Division investigator. However, upon appeal from an investigator's initial determination of no probable cause, a de novo proceeding is conducted by an Administrative Law Judge. As a result, the type of defect in the investigative process alleged would not affect either the Equal Rights Division's or the Labor and Industry Review Commission's disposition of the charge. Bock v. Shopko Stores (LIRC 08/16/06).
The Equal Rights Division is not authorized to dismiss a complaint based upon a final action by the U.S. Equal Employment Opportunity Commission (EEOC). The Division is required to investigate all complaints of discrimination unless the complaint fails to meet one or more of the four criteria specifically enumerated in the Division’s rules (Sec. DWD 218.05 & 218.06, Wis. Admin. Code). A dismissal by the EEOC is not among those criteria and is not a circumstance that warrants dismissal of a complaint before an investigation has been conducted. Catlin v. Crystal Lake Cheese Factory (LIRC, 07/20/01), aff’d sub nom. Crystal Lake Cheese Factory v. LIRC (Barron Co. Cir. Ct., 02/07/02).
If a complaint contains some allegations that satisfy the requirements described in sec. DWD 218.05, Wis. Admin. Code, it would be improper to dismiss the entire complaint just because it contains some allegations that do not satisfy those requirements. However, the administrative rule authorizes only the dismissal of the entire complaint. Therefore, a suggested better procedure for handling complaints that contain both legally viable allegations and legally inadequate ones would be to submit them to the normal probable cause/no probable cause investigation process and to issue an Initial Determination finding "no probable cause" as to the legally inadequate allegations. Woodford v. Norwood Health Center (LIRC, 05/11/01); Stone v. Milwaukee Bd. of School Directors (LIRC, 08/17/01). [Ed. Note: Wis. Admin. Code DWD 218.05 has since been amended to provide that a preliminary determination shall dismiss a complaint, or a portion of a complaint, that failes to meet the requirements of that section.]
The Complainant maintains that the investigation of his complaint was mishandled by the Equal Rights Division. However, the Division's investigation of the complaint had no bearing on the manner in which the hearing was conducted, nor did it limit the Complainant's ability to present relevant evidence at the hearing. The Initial Determination was not submitted into evidence at the hearing and did not influence the findings of fact and conclusions of law made by the Administrative Law Judge. Ollenburg v. Milwaukee County Sheriff's Dept. (LIRC, 09/28/94).
The Equal Rights Division issued an Initial Determination of probable cause, indicating that jurisdictional issues raised by the Respondent would have to be resolved at the hearing stage. An alternative writ of prohibition was quashed by the Circuit Court where there was no clear statutory provision or case law which deprived the Equal Rights Division of jurisdiction and where the jurisdictional issue was not a pure question of law presented in the context of undisputed facts, since the Respondent denied the allegations in the complaint. State of Wisconsin v. DILHR (Dane Co. Cir. Ct., 04/11/94).
Nothing in the administrative rules or the statute indicates that affirmative defenses must be asserted during an investigation or be waived. Olson v. Lilly Research Laboratories (LIRC, 06/25/92).
When, during the course of investigation, it becomes apparent that a Complainant is alleging a second basis of discrimination which is not clearly identified by the complaint, the proper procedure is that the Complainant should be advised to file an amended complaint pursuant to sec. 88.06(2), Wis. Adm. Code. Gartner v. Hilldale, Inc. (LIRC, 05/12/92).
When an allegation of discrimination has not been made the subject of a properly filed complaint, it should not be made the subject of a decision. Additionally, there should be neither hearing nor a decision on the merits of an allegation of discrimination until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Finally, neither findings nor order should be made on allegations of discrimination not identified as issues for hearing in the notice of hearing. Yarie (Schroeder) v. The Pumphouse (LIRC, 9/14/90).
If a complaint is filed which meets the standards set forth in ERD's rules, it can then only be disposed of in the ways specifically set forth in the rules: dismissal on preliminary review, investigation on the merits, or dismissal based on written request for withdrawal. If a complaint is not thus dismissed, it is legally still pending before the ERD Pasternak v. Goodman Forest Industries (LIRC, 04/15/87).
Where the investigator refused to disclose the name of an informant with whom she had spoken in the course of her investigation to the Complainant's attorney, the Personnel Commission ruled that the name of the witness would have to be disclosed to the Complainant's attorney, with the provision that the Complainant's attorney was directed not to disclose the identity of the witness unless he decided to call the witness at hearing. Stroud v. Department of Revenue (Wis. Personnel Comm., 03/27/85).
Commission ruled that the name of the witness would have to be disclosed to the Complainant's attorney, with the provision that the Complainant's attorney was directed not to disclose the identity of the witness unless he decided to call the witness at hearing. Stroud v. Department of Revenue (Wis. Personnel Comm., 03/27/85).
At the investigative (and hearing) stage, the Equal Rights Division must make findings of fact, conclusions of law and orders on each specific allegation of discrimination raised by a Complainant. Fleschar v. Rainfair (LIRC, 07/02/82).
The Equal Rights Division is without authority to change its initial determination once the period for appealing that decision has run. Anthony v. Lakeside Bridge & Steel (LIRC, 09/12/80).
A hearing on a complaint of discrimination should not be held until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Schumacher v. Metal Indus. (DILHR, 11/17/76).
722 Appeals of no probable cause determinations
The complainant filed untimely appeals of an initial determination of no probable cause and a preliminary determination partially dismissing her complaint. There are circumstances in which a late appeal does not foreclose the possibility that the appeal could be addressed and ruled upon, such as in Carlson v. SPF North America (LIRC, 04/27/2007), where a party did not have a reasonable opportunity to receive or become aware of the determination within the appeal period. That exception does not apply here, where the complainant left town without making arrangements to have her mail attended to. Sipprell v. Kenosha Unified School District (LIRC, 01/15/2015).
722.1 Filing of appeal
Complainant faxed an appeal of an initial determination to the Equal Rights Division's Milwaukee office after the close of business on the 30th day after the issuance of the initial determination. Department rule on the filing of documents by facsimile (Wis. Admin. Code sec. DWD 218.25) moved the date of receipt of the appeal back to the next business day, making the appeal untimely. Wis. Admin. Code sec. DWD 218.08. Jackson v. Wal-Mart Stores, Inc. (6/29/16).
Dismissal of an appeal on timeliness grounds where a complainant has mailed an appeal through the United States Postal Service with ample time to ensure its timely receipt, but due to an error or other unusual circumstances beyond the control of the complainant the letter was not received, would be an absurd result not contemplated by Wis. Admin. Code § DWD 218.08. Shorey v. Dillon Bindery, Inc. (LIRC, 10/31/16).
The complainant can rebut the presumption of receipt of the initial determination by offering credible testimony of non-receipt. The fact that the complainant received other mail from the department does not call into question her testimony that she did not receive the initial determination, nor does the fact that when the complainant spoke with a department representative and learned about the adverse decision she did not request a copy of the initial determination. Brunette v. Cardinal Ridge Residential Care LLC (LIRC, 9/30/16)
Complainant's excuse for a late appeal of an Initial Determination was that he did not receive his copy of the determination and did not become aware of it until after the appeal period had expired. A rebuttable presumption of receipt arises, but complainant's assertion of non-receipt cannot be disregarded. If receipt of a mailed item is plausibly denied, the presumption of receipt is spent and a question of fact is raised. Due process requires that a plausible assertion of non-receipt should not be rejected without an opportunity for hearing to prove non-receipt. Marrero v. Bullseye, Inc. (LIRC, 08/31/2015).
After two separate no
probable cause determinations were issued (one addressing disability
discrimination and one addressing retaliation), the complainant's attorney filed
an appeal which mentioned only one hearing number (that corresponding to the
disability discrimination claim), but which was clearly meant to encompass both
cases. It was error to dismiss the
retaliation case where it was clear that the complainant intended to appeal both
cases, and the complainant was entitled to a hearing on the retaliation issue.
Hazard v. PJ Milwaukee LLC (LIRC,
2/27/15).
Sec. DWD 218.08, Wis. Adm. Code, provides that an appeal of an initial determination of no probable cause must be filed within 30 days after the date of the initial determination. This administrative rule contemplates that a complainant should have a reasonable opportunity during the appeal period to receive a no probable cause initial determination, or to otherwise become aware of its existence, in order for the 30-day filing period to run. In this case, the Complainant should have been given the opportunity to prove that, without fault on his part, he did not have this opportunity. It appears that the Complainant made reasonable efforts to arrange for the proper delivery of his mail after he moved from one city to another, and that he had no reason to become aware of the existence of the initial determination during the appeal period. The case was remanded to the Equal Rights Division to allow the Complainant to prove that he did not have the opportunity to file a timely appeal. Carlson v. SPF North America (LIRC, 04/27/07).
The Complainant's appeal letter was delivered to another unit of the Department of Workforce Development on the appeal deadline. That unit of the Department sent the letter to the Equal Rights Division through inter-departmental mail. The Equal Rights Division received the Complainant's appeal of the initial determination one day after the thirty-day appeal period expired. The receipt of the Complainant's appeal by a unit of the Department of Workforce Development on or before the final day of the appeal period satisfied the timely filing requirement of sec. 218.08, Wis. Adm. Code. Steffen v. MB Co. (LIRC 10/13/06).
The Complainant's expectation that the postal service would provide next-day delivery of the written request for hearing on the issue of probable cause did not excuse the late filing of the request. Rogers v. DOA (Wis. Personnel Comm., 12/22/89).
A Complainant's untimely appeal from an initial determination of no probable cause is not made timely by the fact that the cover letter he received from the Equal Rights Division with the Initial Determination gave an older address for the Division, where the facts show that the appeal would not have been timely received by the Division whichever address had been used, given the date it was mailed. Adams v. Consolidated Paper Co. (LIRC, 03/28/84).
LIRC will not accept an appeal from a dismissal of a complaint by the Equal Rights Division's Investigation Bureau. Its appellate jurisdiction is restricted to review of examiners' findings and orders. Matthews v. Marc Plaza Hotel (LIRC, 03/31/83).
Where the Equal Rights Division incorrectly advised a Complainant that she had 20 days, instead of the then mandated 15 days, in which to file an appeal of a no probable cause determination, the Division was obliged to treat her appeal, filed within 20 days, as timely. Magnarini v. Jos. Reilly (LIRC, 06/17/81).
Complainants who lack legal counsel have not been held to strict compliance with the procedural requirements in appealing an initial determination of no probable cause. The right to such a hearing should not be conditioned on the ability of lay persons to draft specific grounds for review. The appeal of a no probable cause determination, dismissed by the hearing examiner because it did not state grounds on which review was sought, is therefore remanded for the hearing to be held. William v. Vulcan Basement Water Proofing (DILHR, 03/01/75).
722.2 Probable cause hearing
When an investigation results in a determination of no probable cause and that is appealed to a hearing on the issue of probable cause, and when that hearing results in an ALJ's decision that there is probable cause and that the matter should proceed to a hearing on the merits, the proceedings on the merits which follow are entirely de novo. The record of the probable cause hearing is not part of the record on which the merits are to be decided, and the decision of the ALJ who presided at the probable cause hearing is of no relevance and of no weight in the merits proceedings. Neither the probable cause hearing record nor the decision resulting from it should be cited as having any significance, or accorded any significance, in the process of trying and deciding the merits of the case.� Walker v. City of Eau Claire (LIRC, 03/28/13).
An Administrative Law Judge does not "reverse" decisions of the Equal Rights Officer. A probable cause determination by the Equal Rights Officer simply means that there was reason to believe that there was sufficient information to warrant a hearing on the complaint of alleged discrimination. Whether in fact discrimination has occurred must be established on the basis of the evidence presented at a hearing before an Administrative Law Judge. At such a hearing, the Complainant must prove, by a preponderance of the evidence, that a violation of the Act has occurred. Piggee v. Crothall Health Care (LIRC, 04/21/03).
It has long been recognized that an administrative appeals procedure under the Wisconsin Fair Employment Act which provided for only an oral argument and a record review of an Initial Determination of no probable cause would constitute a denial of due process. Bedynek-Stumm v. City of Madison (LIRC, 11/30/01).
An Administrative Law Judge may make credibility determinations at a probable cause hearing. Jones v. General Motors Corp. (LIRC, 07/28/99).
Credibility determinations may be made at a probable cause hearing. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).
Section Ind 88.08, Wis. Adm. Code, providing for hearings on the issue of probable cause upon appeal of initial determinations of no probable cause, was validly promulgated and is constitutional. Sections 111.375(1) and 111.39(2), Stats. both empower the Division to hold hearings necessary to perform its functions, and the no probable cause hearing is thus a proper exercise of the Division's authority to investigate complaints to determine if probable cause exists. Black & Decker v. DILHR (Gwendolyne Smith) (Ct. App., District IV, unpublished decision, 09/15/88). [Ed. note: sec. 88.08, Wis. Adm. Code, has been replaced by sec. DWD 218.08, Wis. Adm. Code].
The Labor and Industry Review Commission is without authority to act on a petition for review of an Administrative Law Judge's decision finding, after hearing, that there is probable cause to believe allegations of a complaint and ordering the matter remanded to conciliation. Binder v. Nercon Eng. & Mfg. Co. (LIRC, 07/23/87).
In seeking a review of an initial determination of no probable cause, complaining parties are entitled to present their case before a quasi-judicial officer and receive a more exacting scrutiny of the evidence than would otherwise be available in the normal investigative process. Lienhardt v. Pacon (DILHR, 01/21/76).
A probable cause finding made by a hearing examiner at a no probable cause hearing is not reviewable. Basile v. AMC (DILHR, 01/30/75).
An administrative appeals procedure which provided only an oral argument and a record review of the initial determination of no probable cause would constitute a denial of due process. Warren v. DILHR (Mt. Sinai Hospital) (Dane Co. Cir. Ct., 12/21/70).
730 Conciliation
Conciliation requires the assent of all parties that the dispute has ended. Conciliation does not occur merely because the complaining party has accepted the position she was denied. The Complainant is still entitled to seek a finding whether discrimination had occurred. Watkins v. DILHR, 69 Wis. 2d 782, 223 N.W.2d 360 (1975).
740 Procedures prior to hearing
741 Notice of hearing
741.1 Generally
The Respondent contended that it had not been properly notified of the hearing because notice of the hearing had been sent to its local office and not its corporate office, which was located in another state. The Respondent did not meet its burden of showing that it had good cause for failing to attend the hearing. The Respondent was not denied due process because the Equal Rights Division mailed notice of the hearing by first class mail to its local office in Wisconsin. There is no requirement that process on a corporation be served only at its headquarters, or only on its president or chief executive officer. The Administrative Law Judge determined that the mail that the Equal Rights Division sent to the Respondent was received by the Respondent at its local Wisconsin address, and that it was either lost or destroyed by a manager at that address. Therefore, the Respondent failed to establish good cause for failing to appear at the hearing. Salley v. Nationwide Mortgage & Realty Corp. (LIRC, 12/13/07).
The Complainant claimed that she did not receive a Notice of Hearing. However, even assuming that the Complainant did not get actual notice, she did receive copies of the Respondent's answer and its witness and exhibit list, which put her on notice that her hearing was scheduled to take place very soon. Feaster v. Dillingham, N.A., Inc. (LIRC, 06/29/90).
It was error for the examiner to dismiss a complaint at hearing based on the Complainant's failure to file the complaint within the applicable statute of limitations period, when no notice was given to the Complainant or his counsel prior to hearing that there was a statute of limitations issue in the case that was going to be addressed. Peronto v. LIRC (Brown Co. Cir. Ct., 06/30/86).
The Respondent's fundamental right to due process requires that it be apprised of the issues to be raised at the hearing. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).
There is no requirement that DILHR notify the parties who the hearing examiner will be prior to the hearing. Carignan v. Schlitz Container (LIRC, 06/22/79).
A degree of specificity in the notice of hearing is required to conform with the fundamentals of due process. Wisconsin Telephone Co. v. DILHR, 68 Wis. 2d 345, 228 N.W.2d 649 (1975).
The scope of DILHR findings, conclusions and orders is not limited by the initial determination, but by the notice of hearing. Chicago, Milw., St. Paul & Pac. R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).
741.2 Identification of issues
The Administrative Law Judge improperly ruled that sexual harassment was not an issue in a case where the Complainant had alleged that she had been harassed because she was a female. The notice of hearing had improperly omitted this issue. The notice of hearing was, in turn, based upon the Initial Determination, which had specified that the issues were sex discrimination as to terms and conditions of employment and termination, and fair employment retaliation. Although sexual harassment is a type of sex discrimination, it is distinct from sex discrimination as to terms and conditions of employment. Therefore, the case was remanded to the Equal Rights Division to allow the Complainant to present her evidence relating to her allegation of sexual harassment. Matson v. Aurora Health Care (LIRC, 03/21/08).
The Complainant’s claim that the Respondent retaliated against her because of a statement she made to her supervisor was significantly different from her claim that the Respondent retaliated against her because she filed a complaint with the Personnel Commission. These two allegations were not only factually distinct claims about different motives, but also allegations which presented distinct legal issues. The issue of whether the Respondent took adverse employment actions against the Complainant because she made certain statements to her supervisor at a meeting was not alleged in the complaint. Neither was it investigated or identified in the notice of hearing. Therefore, the Administrative Law Judge properly declined to address this issue at hearing. Hanson v. Dept. of Transp. (LIRC, 06/14/05).
Where an issue is not raised by a complaint, the Equal Rights Division's investigation bureau is without authority to issue an initial determination making a conclusion on that issue, and the Equal Rights Division is without authority to conduct a hearing on that issue. Findings and orders under the Wisconsin Fair Employment Act may not be broader than that specified in the complaint and notice of hearing. Greco v. Snap-On Tools (LIRC, 05/27/04).
The complaint alleged that the Respondent had violated sec. 146.997, Stats., the Health Care Worker Protection Act. A conclusion of law in the decision issued after the hearing which referred to sec. 111.322(2m), Stats., was deleted where there was no allegation in the complaint that the Respondent had violated that statutory provision. The complaint was drafted and filed on the Complainant's behalf by an attorney. Presumably, if the Complainant had intended to allege not only a violation of the Health Care Worker Protection Act, but also a violation of sec. 111.322(2m), Stats., she would have done so. Where an issue is not raised by a complaint, the Equal Rights Division is without authority to conduct a hearing on that issue. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).
Where the Department affirmatively limited the hearing to the issue of whether discrimination had occurred, it was patently unfair to punish the Respondent for failing to produce evidence on the issue of remedy. Milwaukee Bd. of School Directors v. LIRC (Milw. Co. Cir. Ct., 06/14/00).
Where a notice of hearing indicated that a hearing would be held to determine whether the Respondents had violated the Wisconsin Fair Employment Act by refusing to license the Complainant because of "handicap," the Respondent had adequate notice that the Complainant was proceeding on the basis that she had a "perceived handicap." The statute clearly provides that the definition of a handicapped individual includes not only a person who has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, but also one who has a record of having such an impairment, or who is perceived as having such an impairment. Hentges v. Department of Regulation and Licensing (LIRC, 01/12/96).
An Administrative Law Judge improperly found that a particular individual discriminated against the Complainant in conditions of employment, where the Complainant had not so alleged in her complaint. In the complaint, the only allegations of discrimination in conditions of employment were expressly related to alleged mistreatment by another individual. Crosby v. Intertractor America Corporation (LIRC, 05/21/93).
It was improper to add the issue of liability of a Respondent who was named in an amended complaint to the issues for hearing where there had never been a formal investigation and Initial Determination of whether there was probable cause to believe that that individual, as a party Respondent in his own right, had violated the Wisconsin Fair Employment Act. Pulvermacher v. Regency Partners (LIRC, 04/28/93).
It was not proper to add to the notice of hearing an issue of whether the Respondent had retaliated against the Complainant for her filing of an earlier discrimination complaint. Even a liberal reading of the complaint would not disclose an allegation of retaliation. Further, such an allegation was not referred to during the course of the investigation, and no issue of retaliation was addressed in the Initial Determination or made the subject of a finding as to probable cause. Schiller v. City of Menasha Police Dept. (LIRC, 01/14/93).
Findings and orders under the Wisconsin Fair Employment Act may not be broader than that specified in the complaint and notice of hearing. Haynes v. National School Bus Service (LIRC, 01/31/92).
Where an issue is not raised by a complaint, not raised in any writing filed by the Complainant during the course of the investigation, and never disclosed by the investigator to the Respondent as an issue for investigation, and where the investigator does not allow the Respondent to be heard on this issue, the Equal Rights Division's Investigation Bureau is without authority to issue an Initial Determination making a conclusion on that issue, and the Equal Rights Division is without authority to conduct a hearing on that issue. In this case, the investigator made a finding of probable cause on the issue of constructive discharge, which was not an issue raised by the complaint (which only contained allegations of discrimination with respect to promotion and demotion). The notice of hearing also indicated that constructive discharge was an issue in the case. On motion of the Respondent, the Administrative Law Judge correctly amended the notice of hearing to delete that issue as an issue for hearing. The Equal Rights Division cannot conduct a hearing on an issue as to which no complaint had ever been filed. James v. Associated Schools, Inc. (LIRC, 11/27/91).
The Administrative Law Judge erred in concluding that a discharge was in retaliation for opposition to a discriminatory practice where the complaint alleged only that the Complainant was discharged because of marital status and where that was the only issue investigated by the Department and the only issue set forth in the notice of hearing. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).
Where: (1) the complaint alleged only that the Complainant was pregnant, that she took a leave of absence and that when she tried to return to work while still pregnant she was not allowed to return, and (2) the notice of hearing indicated that the hearing was to determine whether the Respondents violated the Wisconsin Fair Employment Act "by discriminating against the Complainant in terms of employment because of pregnancy as alleged in the attached complaint," the Administrative Law Judge was without authority to make findings and conclusions of law and issue an order concerning the circumstances of the Complainant's actual return to work following the birth of her child. Neither findings nor an order should be made on allegations of discrimination not identified as issues for hearing in the notice of hearing. Yarie (Schroeder) v. The Pumphouse (LIRC, 9/14/90).
Although the complaint and notice of hearing related only to race discrimination, the Initial Determination was attached to the notice of hearing and materials referred to in the Initial Determination provided notice of a claim of sex discrimination. Both the race discrimination and sex discrimination claims involved the same factual occurrences. Consequently, LIRC had jurisdiction to consider the sex discrimination claim. Rucker v. LIRC (Ct. App., Dist. I, unpublished decision, 05/15/90).
Where, in a case concerning an alleged discriminatory discharge, there was no reference to wage discrimination in the complaint and no investigation or initial determination of any wage discrimination claim, the Administrative Law Judge properly barred the Complainant from litigating a discriminatory wage claim at the probable cause hearing. Marchant v. Breakthru Marketing Services (LIRC, 02/05/88).
A Complainant who was unrepresented when filling out her complaint should not have that complaint read narrowly so as to prevent her from introducing evidence on issues which are closely related to those raised in the complaint. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).
A complaint (and notice of hearing) that alleges retaliatory discharge does not constitute sufficient notice that the Complainant is also alleging that her discharge was sex discrimination. Hoyer v. LIRC (Milw. Pub. Library) (Dane Co. Cir. Ct., 11/10/83).
Where a complaint (and notice of hearing) alleges that a Complainant had not been reinstated because she refused a lie detector test, the issue of whether her initial suspension was for the same reason was not properly raised. Rudd v. The Rising Sun (LIRC, 11/04/82).
A complaining party's failure to allege anything related to her termination in the complaint precluded DILHR from deciding whether she was constructively discharged. Rau v. Mercury Marine (LIRC, 05/19/77), aff'd. sub nom. Rau v. DILHR (Dane Co. Cir. Ct., 02/21/79).
It was proper for DILHR to consider the legality of an employe's demotion and its relationship to the ultimate discharge even though his complaint challenged only the discharge. Michels v. Giddings & Lewis Machine Tool (DILHR, 12/06/77).
An employer's failure to make a reasonable accommodation can be considered raised by a complaint which charges the employer with handicap discrimination even where the complaint did not specifically allege such a failure. In addition, the investigation of a handicap discrimination complaint by DILHR must include a determination of whether a prudent person might believe that there has been a failure to reasonably accommodate a handicapped individual. Teggatz v. LIRC (DHSS) (Dane Co. Cir. Ct., 10/03/77).
The employer properly objected to a hearing on a new discrimination issue which had been added by amendment to the original charge, but which the Equal Rights Division had not investigated or found probable cause on. AMC v. DILHR (Basile) (Dane Co. Cir. Ct., 10/03/77).
Where sexual harassment was found but not alleged in the notice of hearing, DILHR still must order such action as will effectuate its elimination. Hamilton v. DILHR (Appleton Elec.) (Dane Co. Cir. Ct., 09/12/77).
Where handicap discrimination did not form the basis for the filing of the original complaint and was not raised in the notice of hearing, the hearing examiner's findings on that issue cannot be affirmed by DILHR. Hanson v. Waukesha Bearings (DILHR, 11/18/76).
A hearing on a complaint of discrimination should not be held until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Schumacher v. Metal Indus. (DILHR, 11/17/76).
DILHR cannot make findings or issue an order on allegations not contained in the notice of hearing. Price v. Lakeside School Bd. (DILHR, 11/17/76).
Where the probable cause decision found that the complaining party had been discriminatorily denied employment on the basis of a medical guideline that was relied upon by the employer as a defense, there was ample notice that the guideline was at issue and the employer could be ordered to change it. Esch v. Milwaukee County (DILHR, 09/06/74).
The scope of DILHR findings, conclusions and orders is not limited by the initial determination, but by the notice of hearing. Where the notice of hearing pertained to issues affecting only a single employe and a single act of discrimination, DILHR's application of its order to "like situated employes or applicants for employment" and "ongoing acts of discrimination" was overly broad. Chicago, Milw., St. Paul & Pac. R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).
742 Answer
The purpose of pleading an affirmative defense is to provide notice of that defense and to prevent surprise or other injustice to the other party. In this case, the Respondent raised the affirmative defense that the Complainant's conviction was substantially related to the job in question in its response to the investigator and the Complainant was aware prior to the hearing that the Respondent intended to argue that his convictions were substantially related to the job. Given the Complainant's extensive experience litigating essentially the same issue before the Equal Rights Division, there was no risk that he would be blindsided by a substantial relationship defense, whether or not the Respondent raised it prior to the hearing. Jackson v. Millis Transfer (LIRC, 09/28/12).
The failure to raise an affirmative defense in an answer does not constitute a waiver if this failure was not unfair or prejudicial to the Complainant. The purpose of pleading an affirmative defense is to provide notice of that defense and to prevent surprise or other injustice to the other party. In this case, the Complainant anticipated that the Respondent would raise the defense that his conviction was substantially related to the circumstances of the job. The Complainant was not prejudiced by the Respondent’s failure to raise that defense in an answer. The Respondent’s failure to raise the substantial relationship affirmative defense in an answer did not constitute a waiver of the defense. Ward v. Home Depot (LIRC, 10/21/05)
The substantially related defense to a claim of conviction record discrimination constitutes an affirmative defense. The substantially related defense does not depend on a denial of the claim of discrimination, but instead argues that new matter constitutes a defense even assuming the allegations of the complaint to be true. However, prior case law has established that the failure to raise the statute of limitations defense in a timely manner does not constitute a waiver of that defense if the failure to raise it was not unfair or prejudicial to the Complainant. The principal purpose of the rule concerning timely assertion of the defense is to assure that the Complainant against whom it is raised will have enough advance notice of the assertion of the defense to prepare to meet it at the hearing. The substantial relationship defense in this case, similarly, would not be waived because the Complainant was well aware of the defense and he was not prejudiced by the Respondent’s failure to raise the defense in the answer. Jackson v. Summit Logistic Serv. (LIRC, 10/30/03).
Failure to mitigate damages is an affirmative defense which must be pled in the Respondent’s answer. Radlinger v. Kentucky Fried Chicken (LIRC, 06/20/03).
After the hearing, and after the Administrative Law Judge issued a preliminary decision finding that the Respondent had unlawfully discriminated against the Complainant, the Respondent moved to amend its answer to raise a question of failure to mitigate damages. The administrative rules relating to hearings before the Equal Rights Division provide that a complaint may not be amended less than twenty days before hearing unless good cause is shown. Although the rule dealing with answers is silent on when amendment is permitted, one may infer a twenty-day rule applies to amendments offered to raise affirmative defenses in answers as well. Further, even if sec. 802.09(2), Stats., applied to cases before the Equal Rights Division, the statute does not authorize raising entirely new, unlitigated causes of action or affirmative defenses after the conclusion of the hearing. Kalsto v. Village of Somerset (LIRC, 10/03/00).
While the Respondent was asked to raise the statute of limitations issue in its initial response to the complaint, its failure to do so at that time did not constitute a waiver of the issue. The Respondent raised the issue in a timely filed answer after the notice of hearing was issued. Ault v. Allen Bradley Co. (LIRC, 02/05/98).
The Respondent was not foreclosed from raising a statute of limitations defense shortly before the hearing, even though it failed to establish good cause for not raising the defense in a timely filed answer. In this case, there was no prejudice to the Complainant. Mittelsteadt v. A.J. Air Express (LIRC, 01/16/98).
There is no right to a "default" decision even if a Respondent fails to file an answer. Polesky v. United Brake Parts (LIRC, 08/30/96).
The Respondent need only raise the statute of limitations defense in its answer in order to preserve that defense. In this case, the Respondent filed its answer three days late and apparently said nothing about its statute of limitations defense at the hearing. The Labor and Industry Review Commission nevertheless determined that the untimeliness of the Complainant's claim of discrimination was evident from a simple reading of the charge of discrimination, and it, therefore, dismissed the complaint as untimely. Wilson v. Burnett County Sheriff's Dept. (LIRC, 09/29/95)
The fact that the Respondents were not represented by legal counsel at the time the answer was filed does not constitute good cause for the Respondents' failure to timely raise the statute of limitations defense. Olson v. Servpro of Beloit (LIRC, 8/4/95).
In a case under the Wisconsin Family and Medical Leave Act, the Respondent should be given an opportunity to show good cause for failing to raise the statute of limitations defense in a timely filed answer before the Department makes a finding that the affirmative defense has been waived. Manor Healthcare Corp. v. DILHR (Dane Co. Cir. Ct., 05/12/94).
The Respondent's failure to raise the issue of the statute of limitations until two weeks before the hearing did not bar the Respondent from raising the issue where the Complainant did not object to the Respondent raising the issue either at the time the defense was raised or at the hearing, and where the Complainant had a sufficient amount of time and opportunity to prepare and present evidence on the issue of timeliness because of the protracted hearing schedule. Rangel v. City of Elkhorn (LIRC, 09/30/92).
Sec. Ind 88.11(2), Wis. Adm. Code, provides that not raising an affirmative defense, including the statute of limitations defense, in a timely filed answer may, in the absence of good cause, be held to constitute a waiver of such affirmative defense. Blohm v. Holiday Inn (LIRC, 01/31/90).
Where the Division's rules did not provide any penalty for a Respondent's failure to file its answer on a timely basis, the Commission would not hold that the Respondent waived the statute of limitations defense by failing to raise it in a timely filed answer where there was no prejudice to the Complainant. Oehlke v. Moore-O-Matic (LIRC, 07/26/88). [Ed. Note: The Division's rules now provide that the failure to raise the defense of the statute of limitations in an answer may, in the absence of good cause, be held to constitute a waiver of the defense.]
The statute of limitations defense is waived if not raised in the answer to the complaint. Tamsett v. City of Milwaukee (LIRC, 01/25/88).
The Respondent's failure to timely file an answer to the complaint did not justify reversing the Administrative Law Judge's decision dismissing the complaint, where there was no claim of prejudice because of the failure of the Respondent to file an answer or of any other unfairness in connection therewith alleged to have been committed by the Respondent. Sawi v. Embassy Restaurant and Lounge (LIRC, 03/11/87).
Failure to submit a timely answer does not justify summary judgment for Complainant where the employer had stated its position at previous stages in the complaint process. Bullock v. Milwaukee County (LIRC, 10/15/82).
An employer is required to file an answer giving the Complainant notice of the issues and defenses and, where the employer fails to do so, a timely raised objection, together with evidence supporting a showing of prejudice to the Complainant, would warrant a new hearing after receipt of an answer. However, where the Complainant specifically responded to the issues presented by the employer at the hearing, a new hearing was not required. Smith v. Prairie Homes (LIRC, 08/12/81).
743 Postponements
Three weeks before hearing, the lawyer that the complainant hoped to retain told him he was not going to help him. The ALJ did not abuse discretion by denying the complainant's request to postpone the hearing, given that the complainant had never retained the lawyer, and did not use the three weeks before hearing diligently to prepare for hearing. The ALJ also did not err in denying a postponement for the complainant's doctor's appointment on the day of the hearing. A party requesting a postponement for a medical reason must show to a reasonable degree of medical certainty that he or she is unable to attend because of the medical condition. The complainant characterized his appointment as a pre-op meeting, and did not provide a medical opinion that he was unable to attend the hearing. Wood v. R & M Freight, Inc. (LIRC, 09/11/2015).
The fact that the Complainant requested a postponement of the hearing did not give her good cause for failing to appear at the hearing. The Complainant's postponement request was unclear. The ALJ made repeated attempts to contact the Complainant before hearing to get more information about the circumstances behind the request, but did not hear back from her. The Complainant was notified, by a telephone message from the ALJ, that the request for the postponement was not granted. The fact that the Administrative Law Judge had granted the Respondent's earlier postponement request did not require that the Complainant's request be granted. Wennesheimer v. AON Risk Services (LIRC, 08/14/12).
An Administrative Law Judge's failure to respond to a request for postponement of the hearing is tantamount to a denial of the request. Although the best practice would be for the Administrative Law Judge to issue a formal ruling which sets forth his rationale for granting or denying the request, a party who has been given no reason to believe that such a request was granted is expected to appear for the hearing or show good cause for his failure to appear. Cottingham v. McDonald's (LIRC, 08/25/10).
Where a complaint is dismissed for the Complainant’s failure to appear at hearing, the Administrative Law Judge should discuss his reasons for denying any last-minute request for a postponement that preceded the hearing. In this case, the Complainant alleged a conflict between a scheduled court appearance and the hearing before the Administrative Law Judge. The case was remanded to the Equal Rights Division to determine if the Complainant could establish that he in fact had a court date that conflicted with the Equal Rights proceeding, and if he could demonstrate that he only learned of that conflict shortly before filing the postponement request. Under these circumstances, the Complainant would establish the type of unforeseeable emergency circumstance that would warrant granting a postponement after the ten-day period for requesting postponements set forth in the Department’s administrative rules. Brewer v. Laidlaw Transit Serv. (LIRC, 09/18/07).
The Administrative Law Judge should have postponed the hearing where the Complainant presented a note from his physician which implied that the Complainant’s medical condition would compromise his ability to fully attend, and to participate in, the hearing process. The Administrative Law Judge could have preserved the integrity of the proceedings and recognized the Complainant’s lack of diligence in filing a witness and exhibit list by ruling that the parties would not be permitted to file any additional lists of witnesses or copies of exhibits prior to the rescheduled hearing date. Salinas v. Russ Darrow Group (LIRC, 08/31/07).
When a party has had a sufficient amount of time to make arrangements for legal representation, any failure to obtain such representation will not be grounds for a postponement. Selimi v. Wellpoint (LIRC, 11/29/05)
Even if the party had presented a postponement request to the Department which it failed to address, this circumstance would not provide good cause for failing to appear at the scheduled hearing. Wallace v. Laidlaw Transit (LIRC, 02/24/05).
The Administrative Law Judge did not rule on the Complainant's request for a postponement, which was made five days prior to the hearing. The failure to rule on the motion prior to the hearing was tantamount to a denial of the motion. However, it would have been better practice for the Administrative Law Judge to issue a formal ruling on the motion, setting forth his rationale for granting or denying it. Beasley v. OIC-GM (LIRC, 10/13/04), aff'd sub nom. Beasley v. LIRC (Dane Co. Cir. Ct., 03/10/05)..
The Complainant argued that he did not appear at the hearing because he no longer had an attorney. However, there was no indication that the Complainant ever notified the Equal Rights Division of his situation or made a request for a postponement or a continuance of the hearing. His complaint was properly dismissed. Alexander v. Unified Solutions, Inc. (LIRC, 01/31/03).
An Administrative Law Judge improperly denied the Complainant's request to have the hearing postponed where the Complainant specifically advised the Administrative Law Judge that he was unable to attend the hearing because he would be undergoing chemotherapy that week. Mottl v. The Sales Force Companies (LIRC, 06/26/96).
By failing to timely apprise the Department that she was having difficulty in locating her witnesses, and by not appearing at the scheduled hearing, a Complainant essentially waived any right of postponement she might have had based upon the unavailability of witnesses. Gill v. Ryder Bus Co. (LIRC, 01/31/94).
When a Complainant has a sufficient amount of time to make arrangements for legal representation, any failure to obtain such representation will not be grounds for a postponement. The administrative rules do not provide postponements for poor working relationships between parties and their counsel. Moreover, the hearing notice clearly states that the Equal Rights Division normally does not grant postponements because a party wishes to keep looking for an attorney or because their attorney needs more time. Surin v. Toney (LIRC, 06/25/92).
A medical condition, to justify good cause for postponement of the hearing, must be proven by competent evidence and to a reasonable degree of medical certainty. The Complainant in this case failed to produce any competent medical evidence to show that she was unable to continue with the hearing because of her daughter's medical condition. Surin v. Toney (LIRC, 06/25/92).
The Equal Rights Division's administrative rules provide that requests for postponements shall be filed with the Administrative Law Judge. The rules define "filing" as "the physical receipt of a document at any Division office." This strongly suggests that requests for postponements must be made in writing. It was not reasonable for an attorney to rely upon an oral representation over the telephone by an unidentified person at the Equal Rights Division that a hearing had been postponed. Phillips v. J. L. Marcus Dept. Stores (LIRC, 02/12/91).
The Complainant, who lived in California, had good cause for his failure to appear at the hearing where he had notified the Administrative Law Judge prior to the hearing that he was required to meet with his probation officer on the date the hearing was scheduled and that he could not leave California without permission to do so by his probation officer. Jones-Browning v. Woodman's (LIRC, 09/27/90).
Where the complaint is dismissed for failure of the Complainant to appear at the hearing, the Administrative Law Judge must discuss the reasons for denying any last-minute request for postponement. The absence of explanation may, in some cases, require a remand for further proceedings. Jaskolski v. M & I Data Services (LIRC, 05/23/90).
The fact that a party filed a request for a postponement and had not received any response to the request from the Equal Rights Division did not justify the party's failing to appear at the hearing. Jaskolski v. M & I Data Services (LIRC, 05/23/90).
The Complainant is entitled to a hearing on whether he had good cause for failing to appear at the hearing after his request for a postponement on the ground that he was unable to attend because of medical conditions was denied. The Complainant must prove by competent evidence, and to a reasonable degree of medical certainty, that he was unable to attend because of a medical condition. Jones-Browning v. Associates Leasing (LIRC, 03/16/90).
The Complainant asserted that his personal financial situation prevented him from having sufficient funds to obtain legal representation and failed to proceed with his case when the Administrative Law Judge denied his request for a postponement. LIRC upheld the dismissal of the case because the Complainant had sufficient time to make arrangements for representation. Webinger v. P. V. Farmer, Inc. (LIRC, 11/29/88).
Where the Complainant was incarcerated at the time he filed his complaint and continued to be incarcerated since that time, and was still incarcerated when the matter was scheduled for hearing and did not anticipate being released until approximately nine months after the scheduled hearing date, his request for a postponement of the hearing was found to be for good cause. Smith v. Park East Hotel (LIRC, 02/20/87).
Where a notice was issued on August 25 for a hearing on December 14, and advised that the parties should immediately notify the department of any problems with that date, and where on December 12 the employer's attorney orally requested a continuance, which request was denied, there was no abuse of discretion in the examiner's decision to proceed with the hearing in the absence of the employer or its counsel, who failed to appear at the hearing after the request for a continuance was denied. The denial of the request for the continuance, which was made based on a claimed conflict with another trial, was not inappropriate, and due process does not require providing a further hearing to one who, without justifiable excuse, does not proceed according to the rules. Tomah-Mauston Broadcasting Co. v. Eklund (Ct. App., Dist. IV, unpublished decision, 03/25/86).
Where the Complainant was given three months notice of the hearing date, and two months before the hearing her attorney withdrew, it was not error to deny a request for a postponement of the hearing made only two days prior to the scheduled hearing date by the Complainant's newly retained attorney, given the Complainant's unexplained neglect for two months prior to the hearing to seek new counsel or to advise the Division of the need for a postponement. Timeliness of a request for a postponement is judged not by the date on which the Complainant retains counsel, but by the date on which the Complainant is given notice of the date of hearing. Vicente v. Medical College of Wis. (LIRC, 04/19/85).
A request for postponement submitted two days before the scheduled hearing date was properly denied where the submitting party claimed a conflict but failed to substantiate any attempts to avoid it, and failed to support its assertion that no other attorney could represent the client at the hearing. Tomah-Mauston Broadcasting Co. v. Ecklund (Monroe Co. Cir. Ct., 10/25/84).
In dismissing a complaint for failure of the Complainant to appear at hearing, the examiner must discuss the reason for denying a last minute request for postponement. Schilling v. Walworth County (LIRC, 03/09/83).
It was proper to dismiss a case which had previously been continued at the Complainant's request where the Complainant's attorney had been denied another postponement sought one week before the rescheduled date and subsequently failed to proceed at the hearing. Patrick v. School Dist. of Spooner (LIRC, 03/10/83).
It was not an abuse of discretion to refuse a postponement at the Complainant's request and dismiss her complaint where she refused to proceed without her chosen attorney and there had already been two postponements at her request. Kluss v. LIRC (Wis. Higher Ed. Aids Bd.) (Milwaukee Co. Cir. Ct., 07/16/81).
Where the president of an employer was denied a rescheduling of the hearing because he was going to be out of town, it was appropriate to proceed with the hearing in his absence. Guralski v. Standard Container (DILHR, 08/04/76).