STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARY ENGEL, Complainant

TOWN OF BROOKFIELD, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR200102208, EEOC Case No. 26GA11422


An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed May 25, 2004
engelma . rsd : 125 : 9 

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The complainant, Mary Engel, was employed as a firefighter with the Town of Brookfield until February 7, 2001, when the fire chief ordered the termination of her employment. Engel appealed the chief's decision to the Brookfield Police and Fire Commission. The commission held an evidentiary hearing on March 28, 2001, after which, the commission terminated Engel's employment, apparently effective on March 30, 2001.

After her termination by the Town of Brookfield Police and Fire Commission, on June 26, 2001, Engel filed a complaint of discrimination with the Equal Rights Division. Engel alleged that the Town of Brookfield discriminated against her with respect to her terms and conditions of employment and with respect to promotion because of her sex, by engaging in or permitting sexual harassment, by terminating her employment and by discharging her because she opposed a discriminatory practice under the WFEA. Engel's complaint was cross-filed with the Equal Employment Opportunity Commission (EEOC).

The Division issued an initial determination finding no probable cause to believe that Engel had been discriminated against as alleged. Engel then appealed this determination and a hearing was held on her complaint of discrimination on April 4, 2002, and continued to September 23 and 24, 2002, at which time the hearing was completed.

Apparently, counsel for the respondent agreed to order a transcript of the hearing on the second day of the hearing.

On July 1, 2003, the Wisconsin Supreme Court issued a decision in the case of City of Madison v. State of Wisconsin Department of Workforce Development, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584. The circuit court had issued a writ of prohibition against the DWD, concluding that the DWD lacked jurisdiction over a firefighter's discrimination complaint filed with the ERD because of the exclusive nature of PFC proceedings under Wis. Stat. § 62.13(5), but the court of appeals reversed. City of Madison v. State of Wisconsin Department of Workforce Development, 2002 WI App 199, 257 Wis. 2d 348, 651 N.W.2d 292. The supreme court found that the circuit court's issuance of the writ of prohibition (1)  was proper and reversed the court of appeals. The supreme court held that the DWD lacked jurisdiction over a WFEA complaint arising out of a decision of a PFC to terminate a firefighter. City of Madison, 2003 WI 76 at 2. The court stated that it is now well-established that Wis. Stat. § 62.13(5) establishes the exclusive procedures for the imposition and review of hiring, promotion, demotion, and termination decisions regarding police officers and firefighters. Id. at 31. The court stated that to permit the DWD to assert jurisdiction over a WFEA claim arising out of an action by the PFC under § 62.13(5) would not merely frustrate the purpose of Wis. Stat. § 62.13(5), it would undermine it almost completely. Id. at 35.

In a letter to the ALJ dated August 28, 2003, counsel for the respondent made a motion to dismiss Engel's complaint, citing City of Madison.

Thereafter, on September 5, 2003, the ALJ issued a decision dismissing Engel's complaint. The ALJ first noted that the respondent's counsel had promised to have a transcript prepared but that it had not been completed prior to September 3, 2003. After quoting portions of the City of Madison case, the ALJ then ruled that "Since the complaint in this matter arises out of a decision by the Town of Brookfield Police and Fire Commission regarding the same complaints by Ms. Engel regarding the Town of Brookfield Fire Department, the Equal Rights Division has no proper jurisdiction over this complaint and the Supreme Court has made dismissal of the complaint under the [current] situation mandatory."

On appeal counsel for the complainant argues that she was deprived of due process of law because she never had an opportunity to challenge the respondent's motion. Complainant's counsel argues that he objected to the motion by letter dated September 2, but no opportunity was given by the ALJ to respond. Complainant's arguments fail. First of all, complainant's counsel's September 2 letter does not request that he be allowed to respond further beyond the objections he had already noted in his September 2 letter. The objections cited involved assertions about whether a diligent effort had been made to obtain a transcript, the absence of an indication in the motion as to whether or not City of Madison applied retroactively and complainant's counsel's belief that the ALJ should have the transcript as promised. Second, with respect to written motions filed with the administrative law judge, Wisconsin Administrative Code § DWD 218.15(2) provides, in pertinent part, that "All written motions shall be decided without further argument unless requested by the administrative law judge." (Emphasis added.)

On the subject of retroactive or prospective application of the City of Madison case, counsel for the respondent correctly notes that a decision that overrules past decisions is usually accorded retroactive effect unless there is a compelling judicial reason for prospective effect. Jacque v. Steenberg Homes, Inc., 29 Wis. 2d 605, 623-624, 563 N.W.2d 154 (1997). Counsel for the complainant, however, argues that there is a compelling judicial reason for according prospective effect in this case. Complainant's counsel argues that "There has been an extraordinary and unexplained delay by the Administrative Law Judge in rendering a decision, and during that period there was no motion by Respondent to apply to Madison case criteria, causing the complainant to rely upon the Hearing decision process and resulting in a denial of due process of law." Further, counsel for the complainant argues that "the Supreme Court of Wisconsin in City of Madison did not in their decision expressly make their decision retroactive."

These arguments also fail. First, the record indicates that there was no delay on the part of the ALJ, as he was awaiting the preparation of a transcript of the hearing. Second, with respect to preparation of the transcript, counsel for the respondent has filed an affidavit in which he states that he sent the tapes of the hearing to a court reporter timely upon their receipt, and that the court reporter was continually called regarding the progress of the transcripts and either he or his office was informed that it was difficult to transcribe the tapes. Counsel for the respondent has also offered to obtain an affidavit by the court reporter to confirm this if necessary. Further, with respect to whether or not the supreme court intended to make its decision retroactive, as noted by the respondent: "It is counterintuitive that the Supreme Court employed [the extraordinary measure of a writ of prohibition] in City of Madison, and then did not intend this new holding to apply retroactively to state law cases currently pending in the DWD."

NOTE: The commission notes that Engel has filed both state and federal law discrimination claims. While the Wisconsin Supreme Court's decision in City of Madison applies only to state law based discrimination claims, the "ORDER OF DISMISSAL - NO JURISDICTION" shown as the caption in the decision issued by the ALJ lists not only the ERD Case Number but also the EEOC Case Number, and the ALJ's ORDER describes the effect of the dismissal by stating in general terms that the complaint in "this matter" is hereby dismissed with prejudice.

Previously, in Crymes v. County of Milwaukee (LIRC, 02/24/04), where the commission concluded that the ALJ's inclusion of an EEOC Case Number could be understood as purporting to dispose not only of the complainant's WFEA claim, but also of any claims that could have been brought under the federal Age Discrimination in Employment Act, to avoid any confusion the commission affirmed the ALJ's order but with only the ERD Case Number listed in the caption of the commission's decision.

The commission now concludes that in cases where this situation arises, that for administrative purposes, it will include the EEOC Case Number on its decision while expressly noting that the commission's order is not intended to have any effect on the complainant's federal claim. Accordingly, it is hereby noted that the dismissal of Engel's complaint based on City of Madison is not intended to have any effect on her federal claim since City of Madison applies only to WFEA based discrimination claims and not federal law discrimination claims.

cc: 
Attorney Richard J. Steinberg
Attorney Bennett J. Brantmeier


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Footnotes:

(1)( Back ) The court noted that "A writ of prohibition is an extraordinary remedy traditionally employed to restrain an inferior tribunal from exceeding its jurisdiction." 2003 WI 76 at 9, citing, State ex rel. Lynch v. County Ct., 82 Wis. 2d 454, 459, 262 N.W.2d 773 (1978).

 


uploaded 2004/06/01