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The Wisconsin Equal Rights (ER) Decision Digest -- Sections 711.4-715     

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711.4 Determinations of timeliness, appealability  

It is not necessary to hold an evidentiary hearing in a statute of limitations case when the Complainant's contentions are inherently incredible. In this case, the Complainant's assertion that she did not have adequate notice of her discharge was not reasonable or credible and could not be the basis of a genuine issue of material fact just because she asserted that it was. Stanitsa v. Medical College of Wisconsin (LIRC, 09/21/12).

It is inappropriate to resolve a factual dispute regarding the timeliness of a complaint without an evidentiary hearing, unless the Complainant's contentions are inherently incredible. In this case, the Complainant's assertions were inherently incredible. They did not warrant further hearing. The dismissal of the complaint as untimely was affirmed. Hootsell v. Waukesha County (LIRC, 06/09/11).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).

Where the Complainant filed a complaint under the Healthcare Worker Protection Act, sec. 146.997(3), Stats., it was inappropriate for the Equal Rights Division to issue an initial determination making a conclusion as to whether sec. 111.322(2m), Stats., had also been violated. 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 Healthcare Worker Protection Act, but also a violation of sec. 111.322(2m), Stats., she would have done so. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).

The fact that certain allegations in the complaint were untimely, and thus could not in themselves be found to constitute discrete violations of the Wisconsin Fair Employment Act, does not mean that the events cannot be considered as evidence bearing on the question of whether acts which occurred within the 300-day period were discriminatory. The statute of limitations is not a rule of evidence. Clark v. Friskies Petcare (LIRC, 08/16/01).

An order by the Administrative Law Judge which remanded a case to investigation and which also denied the Complainant's motion for leave to amend his complaint because the proposed amended complaint was time-barred is a final order with respect to the denial of permission to amend the complaint. It does not matter that the Equal Rights Division treats the order as being interlocutory. LIRC has authority to act on the Complainant's petition for review. James v. Associated Schools, Inc. (decision on petition for rehearing) (LIRC, 03/24/89).

A hearing examiner's conclusion that a complaint is timely filed is not subject to appeal until the case has been decided on the merits. Fox v. Massey Ferguson (LIRC, 02/28/83).

Where the Equal Rights Division dismissed a complaint as untimely prior to investigating the complaint, the proper appeal was by writ of mandamus to circuit court rather than to LIRC, since LIRC's jurisdiction is limited by sec. 111.36(3m), Stats. Chester v. Int'l. Harvester (LIRC, 06/05/80). [NOTE: Sec. 111.36(3m), Stats, is now sec. 111.39(5)(a), Stats.]

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712 Parties, naming in complaint

Where there was no evidence that a named individual acted outside of his authority as an agent of the Respondent, that individual should not be named as a Respondent. Hoey v. County of Fond du Lac (LIRC, 07/09/97).

An individual supervisor should not be named separately as a Respondent where the alleged violation of the law arose out of actions taken as an agent of the employer. Powell v. Salter (LIRC, 07/11/97).

While secs. 111.321 and 111.325 of the Wisconsin Fair Employment Act provide that no "person" may engage in an act of employment discrimination, the Act also expressly provides for employer liability for any financial remedies ordered as a result of a violation of the law "by an individual employed by the employer." Sec. 111.39(4)(c), Stats. Thus, individual supervisors acting as agents of the employer should not be named as separate respondents in discrimination complaints. Yaekel v. DRS Limited (LIRC, 11/22/96)

Even if the Complainant mis-named one of the parties in the complaint, the Equal Rights Division should not have dismissed the complaint on that basis because the Division caused the problem itself by initially "rejecting" the complaint and returning it to the Complainant with instructions to name a different entity as the Respondent. The Complainant followed the instructions given to her by the Equal Rights Division. For the Division to subsequently dismiss the complaint because it found fault with that description is contrary to notions of fundamental fairness. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96).

Given the close statutory relationship between the Department of Regulation and Licensing and the Dentistry Examining Board, it would be highly artificial to insist that the Board had such a separate identity from the Department that an administrative complaint was defective in naming the Department rather than the Board, particularly when the allegations of the complaint identified the role of the Board in the alleged discrimination. Dismissal of the complaint for some perceived failure to correctly name parties would represent a hyper-technical approach to pleading that has no place in administrative litigation. Johnson v. Central Regional Dental Testing Serv. (LIRC, 02/29/96).

Failure to name the city as a party in a discrimination complaint did not deprive the Equal Rights Division of jurisdiction to investigate where the Complainant was unrepresented at the time of filing, the drafting of the complaint was done by the Equal Rights Division, the city had timely notice of the allegations and the city was named in an amended complaint. Jones v. Racine County (LIRC, 07/08/83).

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713 Identification of issues, notice

The Complainant originally filed her charge with the EEOC. Her charge did not include a claim of constructive discharge. Under the terms of a work-sharing agreement, the EEOC charge was cross-filed with the Equal Rights Division. The Complainant never submitted an independent claim to the Equal Rights Division alleging that she had been constructively discharged. Any attempt by the Complainant to include a constructive discharge claim in the Equal Rights Division was untimely and would violate the statute of limitations in the Wisconsin Fair Employment Act. Aldrich v. LIRC, 2011 WI App 94, 334 Wis. 2d 495, 801 N.W.2d 457. (Petition for review pending in Supreme Court).The types of violations covered by sec. 111.322(2), Stats., are sufficiently distinct from those covered by sec. 111.322(1), Stats., that they need to be specifically alleged and noticed as an issue. Greco v. Snap-On Tools (LIRC, 05/27/04).

A Complainant need provide only a general statement describing the allegedly discriminatory action in order to satisfy the very liberal pleading requirements of the Wisconsin Fair Employment Act. Moeller v. County of Jackson (LIRC, 01/27/03).

When termination is an issue in the complaint, constructive discharge need not be pled as a separate cause of action. Health Enter. of Wisconsin v. Leconte (Dane Co. Cir. Ct., 05/17/95).

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. 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 constructive discharge as an issue for hearing. James v. Associated Schools, Inc. (LIRC, 11/27/91).

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).

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).

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).

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714 Amendment of complaint, relation back to original complaint

The Complainant's proposed amended complaint contained allegations of discrimination in compensation. These allegations did not rise out of the same facts and circumstances in her original complaint, which alleged discrimination in discipline, suspension and discharge. Therefore, the amended complaint did not relate back to the original complaint for statute of limitations purposes. The amended complaint was filed more than 300 days after the alleged discrimination, and it was appropriately dismissed. Sallis v. Aurora Health Care (LIRC, 12/03/10).

The provisions of sec. 802.09(2), Stats., relating to “Amendments to Conform to the Evidence” do not apply to hearings on complaints under the Wisconsin Fair Employment Act.  Hanson v. Dept. of Transp. (LIRC, 06/14/05).

It is too late to amend a complaint once the evidence has been presented at hearing and the decision issued. Hosey v. West Allis Memorial Hosp. (LIRC, 07/08/98).

The amended complaint, which named an additional Respondent, was filed well beyond the 300-day statute of limitations. The amended complaint could not relate back to any earlier, timely complaint because no such complaint had ever been filed against that particular Respondent. Pulvermacher v. Regency Partners (LIRC, 04/28/93).

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). [Ed. note: sec. 88.06(2), Wis. Adm. Code, has been replaced by sec. DWD 218.06(2), Wis. Adm. Code].

The Complainant's proposed amended complaint alleging that he was constructively discharged subsequent to the date he filed his original complaint was untimely because it did not relate back to the original complaint, which contained allegations of promotion and demotion discrimination. The constructive discharge claim was comprised of an entirely different set of facts and circumstances than those set forth in the original complaint. James v. Associated Schools, Inc. (LIRC, 11/27/91).

The Complainant failed to establish good cause for failing to amend his complaint at least ten days prior to the hearing where the Complainant argued that the Respondent had adequate notice that he intended to pursue a claim of constructive discharge, even though that claim was not included in the original complaint, which alleged discrimination with respect to promotion and demotion. There was nothing in the Respondent's conduct which can be said to have caused it to have acquiesced in the prosecution against it of the claim of constructive discharge. In any event, it is difficult to see how a waiver theory could justify the Equal Rights Division in conducting a hearing on an issue as to which no complaint had ever been filed. James v. Associated Schools, Inc. (LIRC, 11/27/91).

Where the record at hearing discloses a possible violation of the Wisconsin Fair Employment Act which was not included in the complaint, the Department may wish to consider the significance of sec. Ind 88.06(2), Wis. Adm. Code, which provides that the Department may advise a Complainant to amend the complaint if it appears that the Respondent may have engaged in discrimination other than that alleged in the complaint. Joseph v. Central Parking (LIRC, 08/20/90). [Ed. note: sec. 88.06(2), Wis. Adm. Code, has been replaced by sec. DWD 218.06(2), Wis. Adm. Code].

Where the allegations of a proposed amended complaint arise out of the same facts and circumstances alleged in an earlier, timely filed, complaint the proposed amended complaint will be deemed to relate back to the earlier complaint for statute of limitations purposes. Wilson v. Coplan's Appliance (LIRC, 10/10/89).

An amended complaint of handicap discrimination concerning events occurring "during the course of the Complainant's employment" and "on or about June 1986" did not relate back to the original complaint where the original complaint concerned a claim of race discrimination based on Complainant's discharge in December 1986. Wilson v. Coplan's Appliance (LIRC, 10/10/89).

The Complainant was given leave to amend his complaint because the amendment, which was an allegation that his discharge was based on his handicap, arose from the same facts and circumstances as the original complaint, which alleged that the Complainant's discharge was based on his race. Wilson v. Coplan's Appliance (LIRC, 10/10/89).

The Complainant was not allowed to amend the complaint to include additional allegations after the Initial Determination had been issued where the Complainant had already amended his complaint once and gave no good reason why he had not made his amendment earlier. Ferrill v. DHSS (Wis. Personnel Comm., 08/24/89)

Where it is unclear from the complaint and the amended complaint whether the allegation involved is a continuing violation, it would be inappropriate to deny the request to amend the complaint. Vander Zanden v. DILHR (Wis. Personnel Comm., 02/28/89).

The Administrative Law Judge appropriately informed the Complainant he could file an amended complaint to add an allegation of sex discrimination when, during the course of the hearing on a claim of retaliatory failure to hire, one of the Respondent's witnesses indicated that sex was a factor in the hiring decision. Rodgers v. Milwaukee County (LIRC, 09/19/88).

The Complainant in a race and handicap discrimination matter moved to include a charge of sex discrimination two days before the hearing. The Personnel Commission refused to allow the Complainant to amend his complaint in view of the untimeliness of this request, the fact that the Complainant was represented by counsel, the fact that there was no indication that the issue of sex discrimination was not known at the time the complaint was filed, and the fact that well prior to the hearing date, counsel for the Complainant entered into a formal stipulation as to issues for hearing which did not involve sex discrimination. Johnson v. DHSS (Wis. Personnel Comm., 01/30/85).

It would be fundamentally unfair not to allow a party to amend her complaint to include a new charge where she had been without counsel and relied on the assistance of the Department in preparing the original complaint. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).

Where an allegation of age discrimination in a proposed amended complaint arose out of the same events as set forth in the original charge, it would relate back to the date of filing of the original charge. Szymczak v. S. C. Johnson & Son (LIRC, 08/27/82).

It was error to deny the Complainant's request to amend his race discrimination complaint to include a charge that the same conduct was also national origin discrimination, because no new factual allegations were involved and such an amendment relates back to the original date the complaint was filed. Parker v. Thiem (LIRC, 05/14/82, amended 06/10/82).

An amendment to allege retaliation was permitted because it related back to the date of the original complaint, but the amendment should be referred for investigation and an initial determination before proceeding to hearing. Adams v. DNR (Wis. Personnel Comm., 01/08/82).

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).

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715 Adequacy of complaint

A complaint which contains an extremely long and rambling statement of allegations may effectively frustrate any attempt an employer might make to respond to it or an investigator might make to analyze and evaluate it. In this case, the complaint failed to state any clear allegations which, if true, would constitute a violation of the Wisconsin Fair Employment Act. The complaint’s references to "creed" do not refer to a creed or religion as covered by the Act. The few statements in the complaint touching upon the matter of age are ambiguous. None of the situations mentioned in the complaint narrative clearly alleged discrimination because of age as contemplated by the Act. The complaint makes references to the Complainant’s medical condition, however there is no clear allegation that the employer allegedly discriminated against the Complainant because of this condition. Accordingly, the complaint was properly dismissed for failure to state a claim for relief under the Wisconsin Fair Employment Act. Beimborn v. Mark Kuether Constr. (LIRC, 04/19/00).

The rules of the Personnel Commission indicate that a complaint shall be written, signed, verified and notarized and should identify the Complainant, the Respondent and the facts which constitute the alleged unlawful discrimination. The rules specify that technical defects or omissions may be cured by amendment. In this case, the Complainant's letter to an EEOC investigator identified the Complainant, the Respondent and the alleged discriminatory conduct. Technical omissions could be cured through the submission of a completed complaint form. Dawsey v. DHSS (Wis. Personnel Comm., 10/29/92).

The Wisconsin Fair Employment Act does not require that a complaint be on a particular form. Sec. Ind 88.02(2), Wis. Adm. Code, indicates that a complaint shall be written on a form which is available at any Division office, however, it also indicates that it may be filed on "any other form acceptable to the Department." A letter alone may serve to satisfy the requirements of timely filing of a complaint. Therefore, a letter filed as an attachment to and expanding upon the allegations set forth on an official division complaint form should be viewed as part of the complaint. Helton v. Wesbar Corp. (LIRC, 03/19/92). [Ed. note: sec. 88.02(2), Wis. Adm. Code, has been replaced by sec. DWD 218.03(3), Wis. Adm. Code].

Where the gist of the complaint was that the Respondent discharged the Complainant on the basis of false reports made to the Respondent by others, and where the complaint failed to allege that the false reports concerned or were motivated by the Complainant's religious beliefs, that the Respondent knew or believed that the complaining individuals disliked the Complainant's religious beliefs, or that the employer itself shared any dislike others may have held for his religious beliefs, the complaint failed to state a claim upon which relief could be granted on a theory of religious or creed discrimination. Hallingstad v. A. B. Dick Products (LIRC, 11/05/87).

Where the Complainant was denied employment as a truck driver because he was too large to be accommodated in the cab of the truck, the hearing examiner properly dismissed the complaint without conducting a hearing on the grounds that the Complainant was not handicapped within the meaning of the Act. Because the complaint failed to state a claim upon which relief could be granted under the Wisconsin Fair Employment Act, the examiner was within his authority to dismiss the complaint prior to the hearing. Rick v. Fore Way Express (LIRC, 07/25/85).

DILHR has the authority to dismiss a complaint at any stage of the proceedings before it, whether at the request of a party or upon its own motion, for failure to state a claim upon which relief may be granted. Lambert v. DILHR (AMC) (Dane Co. Cir. Ct., 07/25/77).

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