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The Wisconsin Equal Rights (ER) Decision Digest -- Section 119      

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119 Coverage and application of the WFEA; Relationship to other litigation: claim preclusion (res judicata), issue preclusion (collateral estoppel); judicial estoppel  

119.1 Relationship to other litigation: claim preclusion (res judicata), issue preclusion (collateral estoppel); judicial estoppel; General principles

The Complainant had a full opportunity to litigate her claim before the federal district court and to appeal to the federal court of appeals. However, given the unique circumstances of this case, the doctrine of issue preclusion should not have been applied to prevent the Complainant from re-litigating the issue of whether her claim was timely filed in the administrative forum. The Complainant was not represented by legal counsel at the time that she filed her charge with the EEOC. Further, the United States Supreme Court changed the law affecting the timeliness of EEOC charges after the Complainant filed her charge. Fundamental fairness requires that this case be remanded to LIRC with instructions for LIRC to remand the cause to the Equal Rights Division for further proceedings. Aldrich v. LIRC, 2012 WI 53, 341 Wis. 2d 36, 814 N.W.2d 433. ("Aldrich II").

The Complainant could not have litigated her Wisconsin Fair Employment Act claims in federal court. The exclusive means of asserting a claim under the Wisconsin Fair Employment Act is through the Equal Rights Division. The federal court would have had no jurisdiction to hear that claim. Therefore, the doctrine of claim preclusion did not prevent the Complainant from bringing her claims before the Equal Rights Division. However, where appropriate, the narrower doctrine of issue preclusion (which applies only to issues which were actually litigated and decided in a prior action) will prevent re-litigation of identical issues which have been decided in federal court. Aldrich v. LIRC, 2008 WI App 63, 310 Wis. 2d 796, 751 N.W.2d 866. ("Aldrich I")

In Kruckenberg v. Harvey, 2005 WI 43, 279 Wis. 2d 520, 694 N.W.2d 879, the Supreme Court indicated that when the doctrine of claim preclusion is applied, a final judgment on the merits will ordinarily bar all matters which were litigated or which might have been litigated in the former proceedings.  The Court noted that in Wisconsin the doctrine of claim preclusion has three elements:  (1) identity between the parties or their privies in the prior and present suits; (2) prior litigation resulted in a final judgment on the merits by a court with jurisdiction; and (3) identity of the causes of action in the two suits.  In this case, all of the elements required for application of claim preclusion on the Complainant’s claim of race discrimination before the Equal Rights Division were satisfied.  The parties in the Equal Rights Division case were the parties in the prior federal court action.  The prior federal court action resulted in a final judgment on the merits of the Complainant’s race discrimination claim which he pursued in federal court.  (A summary judgment in favor of a defendant is sufficient to meet the requirements of a conclusive and final judgment.)  Finally, since the Complainant’s claim of race discrimination in the Equal Rights Division was based on the same facts underlying his federal court action, an identity of the causes of action or claims existed between his action in federal court and the instant claim before the Equal Rights Division.  Rogers v. Wis. Knife Works (LIRC, 12/22/05). 

Unlike claim preclusion, which may bar all matters which were litigated or which might have been litigated in the former proceedings, an element of issue preclusion is that the issue was actually litigated in a prior action.  A “fundamental fairness” standard exists when applying issue preclusion.  That standard requires consideration of the following factors:  (1) Could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment' (2) Is the question one of law that involves two distinct claims or intervening contextual shifts in the law' (3) Do significant differences in the quality or extensiveness of proceedings between the two courts warrant re-litigation of the issue' (4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second' and (5) Are matters of public policy and individual circumstances involved that would render the application of issue preclusion to be fundamentally unfair'  Rogers v. Wis. Knife Works (LIRC, 12/22/05)

A summary judgment order issued by a federal court in a Title VII action brought by the Complainant, is a bar to the Complainant proceeding under state law in a case involving the same parties and claims.  The Complainant had an opportunity to litigate his complaint in federal district court and to obtain a review of the district court’s decision by the Court of Appeals.  The fact that he disagreed with the federal court decisions issued in his case did not entitle him to relitigate the same claims before the Equal Rights Division.  Reed v. Great Lakes Co. (LIRC, 11/21/05)

The burden of proving claim preclusion is upon the party asserting its applicability. Under the doctrine of claim preclusion, a final judgment is conclusive in all subsequent actions between the same parties [or their privies] as to all matters which were litigated or which might have been litigated in the former proceedings. In order for the earlier proceedings to act as a claim-preclusive bar in a subsequent action, the following three factors must be present: (1) identity between the parties or their privies in the prior and present suits; (2) prior litigation which resulted in a final judgment on the merits by a court with jurisdiction; and (3) identity of the causes of action in the two suits. For purposes of claim preclusion, privity exists when a person is so identified in interest with a party to the former litigation that he represents precisely the same legal right in respect to the subject matter involved. In this case, the UW-Madison was the sole Respondent, while the Board of Regents of the University of Wisconsin System was the defendant in the federal proceedings. Because UW-Madison is a unit within the larger University of Wisconsin System, there is identity between the parties or their privies in the two proceedings. Because a final judgment was entered in the prior litigation, and because there was an identity of causes of action, claim preclusion applied in this case. Delgadillo v. UW-Madison (Wis. Personnel Comm., 04/30/03).

Under the doctrine of claim preclusion, a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings. In order for an earlier action to act as a claim preclusive bar to a subsequent action the following factors must be present: (1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and (3) a final judgment on the merits in a court of competent jurisdiction. Issue preclusion, on the other hand, refers to the effect of a judgment in foreclosing relitigation in a subsequent action on an issue of law or fact that has been actually litigated and decided in a prior action. A "fundamental fairness" standard exists when applying issue preclusion and requires consideration of the following factors: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) did significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of persuasion shifted such that the parties seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual circumstances involved that would render the application of issue preclusion to be fundamentally unfair' Under the doctrine of issue preclusion, the prior judgment precludes relitigation of issues actually litigated and determined by the prior suit, regardless of whether it was based on the same cause of action as the second suit. Taylor v. St. Michael Hosp. (LIRC, 05/31/01).

The Equal Rights Division provides the exclusive remedy to enforce the anti-discrimination provisions of the WFEA. Therefore, a WFEA claim could not be brought in a federal court action. Thus, federal judgments do not have claim preclusive effect on claims under the Wisconsin Fair Employment Act. Taylor v. St. Michael Hosp. (LIRC, 05/31/01).

The doctrine of judicial estoppel did not preclude the Complainant from denying that he was unable to perform the job of printer/press operator for the Respondent, which was an essential element of his age discrimination claim. The Complainant's claim before the Social Security Administration (an agency which determines an individual's qualifications for benefits based upon the extent of the individual's inability to work) that he was unable to work was denied. Even a determination of disability by the Social Security Administration cannot be construed as a judgment that an employe is unable to do his job. Harrison v. LIRC (Sheboygan Co. Cir. Ct., 03/20/96)

Judicial estoppel is an equitable determination and should be used only when the positions taken are clearly inconsistent. The doctrine of judicial estoppel has certain identifiable boundaries. First, the later position asserted by a party must be clearly inconsistent with the earlier position asserted by that party. Second, the facts at issue should be the same in both cases. Finally, the party to be estopped must have convinced the first court to adopt its position -- a litigant is not forever bound to a losing argument. In this case, the doctrine of judicial estoppel should not be applied. The Complainant had stated in his application for SSI benefits that he was disabled from performing any work. He also testified at a hearing that he doubted whether he was physically able to do certain work. Later, in a complaint filed with the Equal Rights Division, the Complainant testified that he was capable of performing his job. These statements are not necessarily inconsistent, because they do not address the question of whether the Complainant would have been able to perform his job had there been an accommodation of his disability. Harrison v. LIRC, 187 Wis. 2d 490, 523 N.W.2d 138 (Ct. App. 1994).

An unreviewed finding of no probable cause by the Personnel Commission barred an employe from bringing a claim for discrimination under sec. 42 U.S.C. 1983 in state court. The hearing before the Personnel Commission provided the employe with a full and fair opportunity to litigate her complaint. She was, therefore, barred by the doctrine of issue preclusion from bringing the same allegations in state court. Lindas v. Cady, 183 Wis. 2d 547, 515 N.W.2d 458 (Ct. App. 1994).

The doctrine of res judicata should not be applied where the Complainant, a security guard employed by a private security agency, was not a party or privy of a party to the lawsuit between the Respondent and the private security agency for which he worked. Jackson v. City of Milwaukee (LIRC, 10/28/93).

A complaint was properly dismissed on res judicata grounds where a federal court dismissed the Complainant's federal retaliation claim on its merits. The Complainant chose not to bring a Wisconsin Fair Employment Act retaliation claim as a pendant state claim in the federal action although all of his claims arose out of the same set of facts. In this case, there is substantial doubt as to whether a federal court in Wisconsin would have dismissed a pendant WFEA claim in May of 1984. When the federal claim was filed, federal courts were divided as to whether they would entertain or dismiss private rights of action under the WFEA. In cases of doubt, the plaintiff should bring forward his state theories in the federal action in order to make it possible to resolve the entire controversy in a single lawsuit. Bourque v. LIRC (Marathon Co. Cir. Ct., 09/08/93).

Equitable estoppel consists of action or non-action on the part of one party that induces reliance thereon by another to the latter's detriment. Even when one of the doctrines of res judicata and election of remedies are inapplicable, under proper circumstances equitable estoppel may be used to bar a second cause of action on a different theory. In the case where a Complainant alleged in a worker's compensation action that his injury was work-related and that case was settled, the Complainant should not then be allowed to pursue another claim against the same employer on the theory that the injury was not work-related. Marson v. LIRC, 178 Wis. 2d 118, 503 N.W.2d 582 (Ct. App. 1993).

Some or all of the following factors may be considered in determining whether the doctrine of collateral estoppel should be invoked: (1) could the party against whom preclusion is sought, as a matter of law, have obtained review of the judgment; (2) is the question one of law that involves two distinct claims or intervening contextual shifts in the law; (3) do significant differences in the quality or extensiveness of the proceedings between the two courts warrant relitigation of the issue; (4) have the burdens of per-suasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; or (5) are matters of public policy and individual cir-cumstances involved that would render the application of the doctrine to be fundamentally unfair' Moore v. LIRC, 175 Wis. 2d 561, 499 N.W.2d 289 (Ct. App. 1993).

Judicial estoppel arises from sworn statements made in the course of judicial proceedings, generally in a former litigation, and are based on the public policy upholding the sanctity of an oath and not on prejudice to the adverse party by reason thereof, as in the case of equitable estoppel. There are two limitations on the doctrine of judicial estoppel. One is that the estoppel may be applied only where a clearly inconsistent position is taken. The second limitation is the requirement that the party to be estopped has convinced the court to accept its position in the earlier litigation. A party is not bound to a position it unsuccessfully maintained. Gilbertson v. Sajec Co. (LIRC, 02/19/93).

The Wisconsin Personnel Commission declined to give collateral estoppel effect to a circuit court decision where the findings by the court were tentative and subject to possible change or addition. Further, because the court retained jurisdiction over part of the case, there apparently was no appealable order. Finally, the Commission could not conclude that the findings by the court were findings which were essential to the decision reached by the court. Balele v. UW-Madison (Wis. Personnel Comm., 06/11/92).

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. Res judicata will not be defeated regardless of the number of primary rights that have been invaded and regardless of the variations in the evidence needed to support the theories or rights. Further, federal case law refutes the theory that, for purposes of res judicata, causes of action are not the same if one cause requires proof of an element that another cause does not. Local 322, Allied Industrial Workers of America v. Johnson Controls (LIRC, 03/30/92).

It is implicit in the principle of res judicata that a contention that the first tribunal erred in some respect is irrelevant. The point of res judicata is to preclude relitigation and redetermination of issues. Whether the first tribunal's decision was correct is not something which enters into the determination of whether the decision should be given res judicata effect. Moore v. American Family Mutual Ins. Co. (LIRC, 11/22/91), aff'd sub nom. Moore v. LIRC, 175 Wis.2d 561, 499 N.W.2d 289 (Ct. App. 1993).

Collateral estoppel will only be applied against a party who was also a party in the previous case. The party must have had a full and fair opportunity to present its claim in the first proceeding, and facts to be given collateral estoppel effect must have been fully litigated in the first proceeding. The decision in the first proceeding must have made a valid and final determination as to those facts. The determination of the facts must have been essential to the decision in that case, and the burden of proof must be the same in the first proceeding as in the second proceeding. Guel v. Cooper Power Systems (LIRC, 11/15/91), aff'd., Ct. App., Dist. II, summary decision, 12/09/92.

The Personnel Commission follows the basic principles of res judicata which were set forth in Schaeffer v. State Personnel Comm., 150 Wis. 2d 132, 138-139, 441 N.W.2d 292 (Ct. App. 1989). A complaint will be dismissed if there was a final judgment in the federal court proceedings if the same parties are involved in both proceedings and if there is identity of claims. The Complainant cannot challenge the validity of what the federal court did. Oreido v. DER (Wis. Personnel Comm., 10/05/91).

The fact that the Complainant appealed the final judgment dismissing her claim in a federal court action does not prevent the application of the doctrine of res judicata. The pendency of an appeal does not deprive a judgment of its effect as a bar to another action between the same parties on the same cause of action. Byrne v. West Allis-West Milwaukee School Dist. (LIRC, 09/18/91).

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119.2 Relationship to other litgation; Title VII, ADEA, other federal court decisions

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 first step in analyzing whether issue preclusion applies is to determine whether the issue was actually litigated in the prior proceeding by a valid judgment and whether the determination was essential to the judgment. The fact that the outcome in the federal court proceeding came in a ruling on a motion for summary judgment, rather than after a trial, does not matter. The second step in the analysis is determining whether applying issue preclusion comports with principles of fundamental fairness. This decision should be made with special attention to guarantees of due process which require that a person must have had a fair opportunity procedurally, substantively, and evidentially to pursue the claim before a second litigation will be precluded. In this case, the conditions for the application of issue preclusion were all met. The Complainant could have obtained a review of the judgment as a matter of law. Second, this is not a case where there were two distinct and different types of claims or intervening contextual shifts in the law. Third, there were not significant differences in the quality or extensiveness of the proceedings between the two tribunals which would warrant re-litigation. Fourth, there was no shift in the applicable burdens of persuasion such that the party seeking preclusion had a lower burden of persuasion in the first proceeding. Finally, there were no matters of public policy or individual circumstances involved which would make application of issue preclusion fundamentally unfair. Banty v. Dings Co. Magnetic Group (LIRC, 07/31/12).

The Complainant had a full opportunity to litigate her claim before the federal district court and to appeal to the federal court of appeals. However, given the unique circumstances of this case, the doctrine of issue preclusion should not have been applied to prevent the Complainant from re-litigating the issue of whether her claim was timely filed in the administrative forum. The Complainant was not represented by legal counsel at the time that she filed her charge with the EEOC. Further, the United States Supreme Court changed the law affecting the timeliness of EEOC charges after the Complainant filed her charge. Fundamental fairness requires that this case be remanded to LIRC with instructions for LIRC to remand the cause to the Equal Rights Division for further proceedings. Aldrich v. LIRC, 2012 WI 53, 341 Wis. 2d 36, 814 N.W.2d 433. ("Aldrich II").

The Complainant could not have litigated her Wisconsin Fair Employment Act claims in federal court. The exclusive means of asserting a claim under the Wisconsin Fair Employment Act is through the Equal Rights Division. The federal court would have had no jurisdiction to hear that claim. Therefore, the doctrine of claim preclusion did not prevent the Complainant from bringing her claims before the Equal Rights Division. However, where appropriate, the narrower doctrine of issue preclusion (which applies only to issues which were actually litigated and decided in a prior action) will prevent re-litigation of identical issues which have been decided in federal court. Aldrich v. LIRC, 2008 WI App 63, 310 Wis. 2d 796, 751 N.W.2d 866. ("Aldrich I")

The Equal Rights Division does not have the authority to adjudicate claims of violations of federal laws.  Therefore, the Complainant's contention that his failure to be hired was in violation of federal laws was properly dismissed.  Bedynek-Stumm v. State of Wisconsin (LIRC, 02/08/08), aff'd. sub nom. Bedynek-Stumm v. LIRC (Dane Co. Cir. Ct. 10/10/08).

The exclusive means of asserting a claim under the Wisconsin Fair Employment Act is through the Equal Rights Division, and a federal court would have had no jurisdiction to hear that claim.  Therefore, the doctrine of claim preclusion does not bar a litigant who has had a federal law-based discrimination claim dismissed in federal court from having his or her claim under the Wisconsin Fair Employment Act heard by the Equal Rights Division.  However, where appropriate, the narrower doctrine of issue preclusion (which applies only to issues that were actually litigated and decided in a prior action) would prevent re-litigation of identical issues which had been decided in federal court.  Aldrich v. LIRC, 2008 WI App 63, 310 Wis. 2d 796, 751 N.W.2d 866.

The doctrine of “claim preclusion” (formerly known as res judicata) does not bar a litigant who has had a federal-law-based discrimination claim dismissed in federal court, from having their claim under the WFEA heard by the ERD.   Claim preclusion is based on the assumption that in the first action, the litigant could have presented his entire claim, including any theories of recovery or demands for relief that might have been available to him under applicable law.   When this is not the case, though, it is unfair to preclude the litigant from a second action in which he can present those the claims he could not present in the first action.  Here, Aldrich could not have litigated her WFEA claims in federal court;  the exclusive means of asserting a WFEA claim is through the ERD, and the federal court would have had no jurisdiction to hear that claim.  Therefore  the doctrine of claim preclusion does not prevent her from doing so before the ERD.   The court  rejects the argument that failing to apply the doctrine of claim preclusion will necessarily open the floodgates to re-litigation of identical federal and state employment discrimination claims.  Where appropriate, the narrower doctrine of issue preclusion (which applies only to issues that were actually litigated and decided in a prior action) will prevent re-litigation of identical issues decided in federal court.  Joyce Aldrich v. LIRC, 2008 WI App 63, 310 Wis. 2d 796, 751 N.W.2d 866.

Subsequent to the filing of the complaint in the Equal Rights Division, a separate decision was issued in a suit filed by the Complainant against the Respondent (a labor union) in federal court, involving the same set of facts. The federal court granted the Respondent’s motion for summary judgment on the ground that no reasonable jury could find that the Respondent’s decision not to take the Complainant’s grievance to arbitration was arbitrary, discriminatory, or in bad faith. Thus, the issue presented in the Complainant’s Equal Rights complaint was fully litigated and determined by a final judgment of the federal district court. The district court’s judgment precluded relitigation of the same issues before the Equal Rights Division. Mack v. AFSCME Local 366 (LIRC, 07/24/02), aff'd sub nom. Mack v. LIRC (Milw. Co. Cir. Ct., 03/24/03).

Where a federal court had dismissed the Complainant's Title VII and ADEA retaliation claims, such dismissal was res judicata and precluded the Complainant from pursuing retaliation claims against the same Respondent under the Wisconsin Fair Employment Act where those claims arose out of the same basic factual situation. Bourque v. Wausau Hospital Center (LIRC, 04/02/92).

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. Neither the details of the claim nor the facts, evidence or theories of recovery need to be identical in order for the former action to bar the latter. Imposing res judicata as a bar to resumption of the Personnel Commission proceedings after an adverse federal decision does no violence to the independent action principles underlying Title VII where all of the elements of the doctrine of res judicata are met, i.e., identity of parties and issues and, most importantly, the opportunity to litigate them in the former proceedings. Schaeffer v. State Personnel Comm., 150 Wis. 2d 132, 441 N.W.2d 292 (Ct. App. 1989).

Some of the Complainant's claims were not precluded by the judgment of the federal court in the Complainant's Title VII action because the claims were not fully litigated in federal court and it was doubtful whether the Complainant would have been allowed to litigate those issues by the trial judge. Haynes v. Pressed Steel Tank Co. (LIRC, 5/23/89).

A federal court decision dismissing a complaint of sex discrimination based on the Court's conclusion that the complaint itself established that the Complainant was not entitled to a finding of discrimination, was a judgment on the merits, and had res judicata effect as to the Complainant's claim of sex discrimination against the same employer pending before the Equal Rights Division. Maguire v. Marquette Univ. (LIRC, 08/18/88).

LIRC has adopted the "transactional view" of a cause of action, as set forth in DePratt v. West Bend Mut. Ins. Co., 113 Wis. 2d 306 (1983). The test of whether two suits are based on the same cause of action is whether both suits arise out of the same basic factual situation. Maguire v. Marquette Univ. (LIRC, 08/18/88).

For the doctrine of res judicata to apply, there must be: (1) a judgment on the merits, (2) an identity of parties, and (3) an identity of causes of action. A decision by a federal court dismissing a Complainant's case on the basis of the pleadings was a judgment on the merits. The Complainant's argument that she should nevertheless be allowed to pursue her state action on the same claim on "fairness" grounds is unfounded. Fairness to the Respondent is a fundamental basis underlying the doctrine of res judicata. Further, the Supreme Court of the United States has directed that the doctrine of res judicata be strictly enforced. Maguire v. Marquette Univ. (LIRC, 08/18/88).

A federal court judgment in a Title VII action may be given preclusive effect against subsequent claims raised under the Wisconsin Fair Employment Act. This is true even though Title VII will still be available as a remedy to a litigant even after a state proceeding has been completed. Haynes v. Pressed Steel Tank Co. (LIRC, 05/23/88).

LIRC will not assert jurisdiction over a white employe's complaint that he was discriminated against because of race when his employer complied with a consent decree issued by a Federal District Court requiring that employer to give retroactive seniority to certain minority class members. The complaint constituted an impermissible collateral attack against the consent decree. Wolterstorff v. Milwaukee County (LIRC, 03/29/88).

Where the employe moved for summary judgment on a number of issues on the basis of a special verdict in a federal court action under section 1981 and the employer moved to dismiss on the ground that the federal court judgment had res judicata effect, the Personnel Commission found that the judgment of the federal court had res judicata effect, and dismissed the employe's complaint. Weatherall v. Department of Health and Social Services (Wis. Personnel Comm., 10/07/87).

The Complainant litigated her claim under Title VII before the U.S. District Court, lost on the merits, and lost on appeal to the U.S. Court of Appeals. Because of the identity of parties and issues, the Personnel Commission held that the Complainant was precluded from relitigating her complaint before the Commission, and Respondent's motion to dismiss on grounds of res judicata and collateral estoppel was granted. Namenwirth v. UW- Madison (Wis. Personnel Comm., 02/13/86).

An individual who has fully litigated a discrimination claim under the ADEA in federal court may not subsequently pursue in a state administrative proceeding remedies which were available in federal court. Syvock v. Milwaukee Boiler Mfg. Co. (LIRC, 08/28/84).

Litigation of a state discrimination claim which has been reviewed by state court may bar subsequent litigation of the same claim under Title VII. Kremer v. Chemical Constr. Corp., 456 US 461, 28 FEP Cases 1412 (1982)

Parties must be identical before either collateral estoppel or res judicata applies. In this case, LIRC was not a party to the federal action nor in privity. Sanchez v. LIRC (Dane County Community Action Committee) (Dane Co. Cir. Ct., 11/20/80).

The decision reached by a federal court in a Title VII suit is not res judicata in a complaint filed under the Act. The statutes express an intent to accord parallel or overlapping remedies and the identity of issues necessary for res judicata is absent when the two laws have not been similarly interpreted. Rubenstein v. LIRC (UW-Board of Regents) (Dane Co. Cir. Ct., 08/15/80).

Although an action involving the same parties and subject matter was dismissed in federal court on an employer's motion, DILHR was not barred by res judicata, by election of remedies or by federal preemption from proceeding to hear the complaint at the state level. State ex. rel. Opportunities Indus. Center v. DILHR (Sharma) (Dane Co. Cir. Ct., 11/06/75).

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119.3 Relationship to other litigation; State court decisions

Where the examiner placed a proceeding in abeyance, directing that a circuit court action pending between the same parties would, when a decision was issued, be given res judicata effect unless the losing party submitted persuasive written authority to the examiner to the contrary within 20 days after the issuance of the decision, it was appropriate for the examiner to thereafter decide the case on the basis of the circuit court decision when it was issued, when the Complainant submitted no argument or authority to the examiner within 20 days after that date as to why the decision should not be given res judicata effect. Kloth v. Schultz (LIRC, 03/27/86).

A decision on the merits of a wrongful discharge suit in circuit court, in which the court concluded that the Respondent had just cause to terminate the Complainant, should be accorded collateral estoppel effect to preclude the Complainant from asserting before the Equal Rights Division that his discharge was based on discriminatory grounds. Welch v. LIRC (Marathon Co. Cir. Ct., 04/15/85).

A reviewing court's finding in a separate proceeding that there was just cause for dismissing an employe did not preclude a finding by an Equal Rights examiner that the employer retaliated against the employe where the court did not consider the employer's motives for dismissing the employe. Hennekens v. River Falls Police Dept. (LIRC, 01/29/85).

A complaining police officer is not entitled to reassert charges under the Act which have already been fully litigated under another Chapter before the Circuit Court. State of Wisconsin ex. rel. City of Racine Police Dept. v. DILHR (Racine Co. Cir. Ct., 09/11/84).

Where an employe filed both a civil service appeal and a complaint of discrimination regarding the same parties and presenting the same issue, a final decision on the merits of the civil service appeal acts to bar the complaint of discrimination. Jacobson v. DILHR (Wis. Personnel Comm., 06/03/81).

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119.4 Relationship to other litigation; Other FEP agency decisions

The worksharing agreement between the Equal Rights Division and the Madison Equal Opportunities Commission does not require the Equal Rights Division to accept the MEOC's probable cause determination instead of conducting its own investigation.  Lee v. National Conference of Bar Examiners (LIRC, 10/31/08).

Where a Complainant had received a final decision from the Madison Equal Opportunity Commission after a full and fair hearing under a city ordinance that was virtually identical to the Wisconsin Fair Employment Act in wording and remedy, he was not entitled to pursue the same complaint before the Equal Rights Division. McFadyen v. University Book Store (LIRC, 07/23/81).

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119.5 Relationship to other litigation; Arbitration decisions

The Labor and Industry Review Commission declined to adopt an Administrative Law Judge's holding that an interest arbitrator's decision had a preclusive effect on an action under the Wisconsin Fair Employment Act. The Commission reviewed the underlying merits of the Complainant's case. Milwaukee Teachers Educ. Assn. v. Milwaukee Bd. of School Directors (LIRC, 06/30/10).

If the 'Acknowledgment of Conditions of Employment' document signed by the Complainant when he began work for the Respondent had stated that arbitration was the final, binding, and exclusive means for resolving all state claims, it would be arguable that the Complainant's subsequent complaint to the Equal Rights Division should be dismissed, consistent with Supreme Court decisions upholding the enforceability of provisions in employment contracts specifying binding arbitration as the exclusive and final remedy for claims under state law, including discrimination claims. However, in this case, the agreement signed by the Complainant made a distinction between claims filed in court (for which arbitration was the exclusive and final remedy) and those, as here, filed in an administrative forum, for which there is no provision for binding arbitration. As a result, the Complainant never agreed that binding arbitration would be the exclusive and final remedy of the claims at issue. Carrington v. General Electric (LIRC, 04/30/10).

The Respondent's request that the proceedings before the Equal Rights Division be held in abeyance pending the outcome of the Respondent's arbitration process was denied. Although an arbitrator's decision may have some persuasive value under certain circumstances, it would not preclude the Equal Rights Division from examining de novo the issue of whether an employee has been discriminated against within the meaning of the Wisconsin Fair Employment Act. Since the completion of the Respondent's arbitration process would not relieve the Equal Rights Division of its responsibility to resolve this case, further delay was not merited. Carrington v. General Electric (LIRC, 04/30/10).

An arbitrator’s decision should not preclude the Equal Rights Division from examining de novo the issue of whether or not an employee was the victim of discrimination. It is, however, appropriate to admit the arbitration decision as evidence and to accord it such weight as may be appropriate under the facts and circumstances of each case. Betters v. Kimberly Area Schools (LIRC, 11/28/07).

There is reason to be hesitant about giving issue preclusion effect to a grievance arbitration award in a subsequent litigation of an employment discrimination claim. The best approach is to accord the arbitration award such weight as may be appropriate under the facts and circumstances of each case. Betters v. Kimberly Area Schools (LIRC, 07/30/04).

The issue of whether or not a Respondent violated the Wisconsin Fair Employment Act when it placed the Complainant on disability leave was not foreclosed by an adverse arbitration decision which found that the Respondent did not violate the collective bargaining agreement when it placed the Complainant on disability leave. Lee v. Dane Co. Highway Dept. (LIRC, 07/24/98).

An arbitration decision may be admitted in an Equal Rights hearing and given such weight as is appropriate under all the facts and circumstances of the case. It was appropriate to give an arbitration decision some weight where the following circumstances existed: the parties appeared at the arbitration hearing with counsel; the arbitration hearing focused very specifically on the factual issue of whether the Complainant had called in (which was an issue in the Equal Rights hearing); the Complainant and other witnesses who had testified in the Equal Rights hearing testified in the arbitration hearing; transcription of the arbitration hearing and briefing presumably allowed detailed arguments to be submitted to the arbitrator; and the arbitrator's lengthy and reasoned decision reflected careful consideration of all of the evidence. Moncrief v. Gardner Baking (LIRC, 07/01/92)

The doctrine of collateral estoppel prevents both parties from relitigating relevant factual disputes already decided at an arbitration hearing. In this case, the doctrine of collateral estoppel prevented the relitigation of facts surrounding the Complainant's permanent light duty classification. Seeman v. Universal Foods (LIRC, 03/30/92).

When an arbitration hearing addressed facts regarding the Complainant's permanent partial disability, his medical restrictions, his job duties and functions and comparisons of the employe's ability vis-a-vis others' abilities, and where the case was litigated by both parties, the decision of the arbitrator collaterally estops the Complainant from relitigating the dispute surrounding the medical evidence. Seeman v. Universal Foods (LIRC, 03/30/92).

A Complainant is not collaterally estopped from introducing evidence that her termination was not for just cause because she received an adverse arbitration decision. Dohve v. DOT (Wis. Personnel Comm., 11/03/88).

An adverse arbitration decision does not preclude a Complainant from pursuing a discrimination complaint where the discriminatory aspects of the complaint were not addressed at the arbitration. Massenberg v. UW-Madison (Wis. Personnel Comm., 07/21/83).

An arbitration decision may be admitted at a hearing and given appropriate weight. Krueger v. Wisconsin Dept. of Transp. (LIRC, 10/04/82).

LIRC was not deprived of jurisdiction by the outcome of an arbitration instituted under a union contract since the Wisconsin Fair Employment Act provides a distinct procedure for determining questions of employment discrimination. Winnebago County v. LIRC (Brehm and Boutin) (Dane Co. Cir. Ct., 09/18/78); also, Nielson Iron Works v. LIRC (Oliver) (Racine Co. Cir. Ct., 03/22/82); Jones v. Dept. of Natural Resources (Wis. Personnel Comm., 11/08/79).

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119.6 Relationship to other litigation; Unemployment compensation decisions

[NOTE: See sec. 108.101(1), Stats., for effect of unemployment compensation decisions on other proceedings.]

An Unemployment Insurance determination or decision is not admissible or binding in a proceeding before the Equal Rights Division.  Sec. 108.101(1), Stats.  Neulreich v. US Bank (LIRC, 04/11/08).

It was not improper for an Administrative Law Judge to refuse to consider documents relating to the Complainant's application for unemployment benefits, including a determination by the Unemployment Insurance Division of the Department of Workforce Development.  Sec. 108.01(1), Stats., provides that findings and determinations under the unemployment insurance benefits law are not admissible or binding in any administrative proceeding not arising under that law. Valdes v. Harley Davidson Motor Co. (LIRC 10/27/06).

An Administrative Law Judge did not abuse his discretion by excluding from the hearing record a decision in a related Unemployment Insurance (UI) proceeding. Given the different allocations of burdens of proof in these two types of proceedings, and the different statutory schemes under which they are decided, as well as the fact that the two forums are relying upon different record evidence in reaching their decisions, UI decisions should not be given preclusive effect, or even accorded significant weight in cases before the Equal Rights Division. Josellis v. Pace Inds. (LIRC, 08/31/04).

The Complainant stated a claim for which relief could be granted under the Wisconsin Fair Employment Act where she alleged that the Respondent discriminated against her with respect to her unemployment compensation benefits because of her age. While an employer cannot determine which employes will ultimately receive unemployment benefits, the act of furnishing disqualifying information to the Department is a matter over which the Respondent does have control. If the Complainant is able to prove that the Respondent selectively supplied the Department with disqualifying information based upon the ages of its workers, then her complaint will have stated a claim under the Act. Baurichter v. Admanco, Inc. (LIRC, 06/26/96)

The Administrative Law Judge erred in relying on the Unemployment Compensation Appeal Tribunal Decision. Sec. 108.101, Stats., clearly has as its purpose the elimination of the practice of using unemployment compensation decisions as preclusive determinations in other forums. Notaro v. Kotecki & Radtke, S.C. (LIRC, 07/14/93).

Where the allocation of burdens of proof differ, it is not appropriate to give collateral estoppel effect in an Equal Rights proceeding to an Unemployment Compensation determination. The fact that an employer did not meet its burden of proving by a preponderance of the evidence in an Unemployment Compensation proceeding that an employe did not call in does not necessarily mean that the employe must be considered to have met his burden of proving by a preponderance of the evidence that he did call in. Moncrief v. Gardner Baking (LIRC, 07/01/92)

Sec. 108.101, Stats., limits the extent to which unemployment compensation deter-minations can be given preclusive effect in other litigation. The statute became effective with respect to unemployment compensation determinations issued on or after January 7, 1990. Where the statute is applicable, it will effectively displace most of the legal considerations relating to the issue of collateral estoppel in the past. Guel v. Cooper Power Systems (LIRC, 11/15/91).

Where a Complainant was denied the opportunity to present evidence of discrimination at an unemployment compensation hearing, the ruling in the unemployment compensation matter cannot be res judicata on the discrimination claim. The application of collateral estoppel can be avoided when the party against whom it is sought establishes that he did not have a fair opportunity procedurally, substantively and evidentially to present the claim in the initial proceeding. Rucker v. LIRC (LIRC, 07/16/87); aff'd., Milwaukee Co. Cir. Ct., 07/07/88; aff'd., Ct. App., Dist. I, unpublished decision, 05/15/90.

Where a final decision of the Unemployment Compensation Appeal Tribunal found that an employe quit, but for good cause due to sexual harassment attributable to the employer, the doctrine of collateral estoppel was applied to prevent relitigation of the findings of fact and law made in the unemployment compensation decision. Carlson v. Three Star (LIRC, 08/27/86).

A discharged Complainant's successful outcome at an unemployment compensation hearing does not impact on her handicap discrimination charge before the Equal Rights Division because the evidentiary standards are different. Christianson v. LIRC (City of Eau Claire) (Eau Claire Co. Cir. Ct., 03/02/83).

DILHR's denial of the unemployment compensation claim of an employe with rheumatoid arthritis because she was unavailable for work was not probative of her inability to perform her job duties at the time of her discharge. J. C. Penney v. DILHR (Mitchell) (Dane Co. Cir. Ct., 03/22/76).

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119.9 Relationship to other litigation; Miscellaneous

A Complainant’s appeal of a decision finding no discrimination was barred by a final order of the federal Bankruptcy Court in proceedings on the Respondent’s Chapter 11 petition. The complaint included allegations of discrimination and rate of pay. This was a “claim” cognizable in the bankruptcy proceedings because payment of a monetary remedy was possible. Under the Bankruptcy Code, holders of disputed and unliquidated claims who fail to file timely proofs of claim are not allowed claims against a bankrupt estate, and are not entitled to receive a distribution under the reorganization plan. The exception for claims for “willful and malicious injury” was not applicable here because that exception applies only to individual debtors. The Respondent here was a corporate entity. The Complainant’s claim was, therefore, barred by the final order of the Bankruptcy Court. Vanderwulp v. USG Interiors (LIRC, 07/19/07).

A non-final decision of an Administrative Law Judge in another case where the ALJ had found discrimination but the matter had been settled prior to an attorney's fees determination having been made and the decision being issued in final, appealable form would not have any preclusive effect. Moncrief v. Gardner Baking (LIRC, 07/01/92)

When an employer seeks to interpose a federal consent decree against claims of reverse discrimination, the employer must prove that consideration of race was: (1) justified by the existence of a manifest imbalance that reflected under-representation of minorities in traditionally segregated jobs; and (2) the decree did not unnecessarily trammel the rights of non-minority employes or create an absolute bar to their advancement. Samolinski v. Milwaukee County (LIRC, 01/05/90); rev'd on other grounds, sub nom. Samolinski v. LIRC and County of Milwaukee (Milw. Co. Cir. Ct., June 27, 1991).

Where two employes filed similar complaints, LIRC rejected the Respondent's argument that the finding of no discrimination by one Admistrative Law Judge in one employe's case was res judicata in the other employe's case, since res judicata requires that the party against whom it is being asserted had an opportunity to litigate the issue in the first proceeding. Taylor v. Hampton Shell (LIRC, 06/27/88).

Where complaints of sex discrimination were settled by a stipulation which necessitated shift changes, an affected employe who was not a party to or represented in the first complaints and who had no notice of the settlement agreement could file a separate complaint of sex discrimination. Chadwick v. Department of Health and Human Services (Wis. Personnel Comm., 04/02/82).

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