MALONEY, C. J.: This is an action to review findings
and order of the Industrial Commission, dated April 6, 1966, which,
after reconsideration of a previous order finding probable cause,
reversed the order of December 3l, 1964, and dismissed the
complaint, which had alleged that the petitionerís employment with
Ace Foods, Inc. had been terminated because of his race or color.
Upon the stipulation of the parties, by their attorneys, and upon
the agreement of the Industrial Commission to revise IND. 88.08(2)
(c) to provide that the quantum of proof required to support a
finding of probable cause is as defined in this opinion, this
controversy is remanded to the Commission for further proceedings
consistent with this opinion.
Probable cause as used in Sec. 111.36(3), Stats., must be construed
to mean such a state of fact in the mind of the Commission, based
upon competent evidence as would lead a quasi-judicial officer to
believe within reasonable probabilities that the Respondent is
guilty of unlawful discrimination. Competent evidence is that which
is worthy of consideration in any aspect, but of course would have
to be such as would be admissible in some form at the hearing.
State ex rel Wojtycski v. Hanley (1945) 248 Wis. 108, 111;
State v. Whatley (1933) 210 Wis. 157, 160. Probable cause
does not mean proof to a reasonable certainty by a preponderance of
the evidence. It does mean proof within reasonable probabilities
that a full hearing will establish the fact to a reasonable
certainty by a preponderance of the evidence
A review of the findings of fact and of commission rule IND.
88.08(2)(c) leads this Court to the conclusion that it would be
speculative to determine what standard of evidence was required by
the Commission from the Petitioner to sustain a finding of probable
cause. This matter is remanded in order that the Commission may
reconsider all of the facts in the record before the Commission,
make its determination of probable cause or no probable cause, and
clarify the record as to the quantum of proof used.
Section 111.36(3), Stats., requires four procedural steps before a
finding of discrimination or no discrimination can be made. First,
there must be a complaint filed with the Commission. The Commission
must then determine if there is probable cause to believe that
unlawful discrimination has been or is being committed. If the
Commission determines that the evidence is not such as to show
probable cause, the Commission may dismiss the complaint. At this
point, the complainant may avail himself of his right of judicial
review under Chapter 227, Stats. The Commission may resort to formal
hearing as an aid in determining the existence of probable cause.
Sec. 111.33, Stat.s, 111.36(2), Stats. The sole question that can be
determined at a hearing at this stage is the question of probable
cause and the complainant is only required to introduce such
evidence as to show probable cause. The Commission is not to weigh
the testimony by balancing the credibility of the witnesses, but
rather merely determine whether complainantís evidence is
If the Commission determines that there is probable cause, then it
must immediately endeavor to eliminate the practice by conference,
conciliation or persuasion. In case of failure so to eliminate the
discrimination suspected, the Commission shall issue and serve a
written notice of hearing. This hearing must be a hearing upon the
merits and both parties must be given an opportunity to introduce
any admissible evidence favorable to their position.. After
such hearing, the Commission must then make a determination by a
preponderance of the evidence of whether there was discrimination,
and if there was a failure of proof dismiss the complaint.
In this case, the Commission held hearings October 9, 10, 11 and
November 18 through 22, 1963. An extensive record was made and
numerous exhibits were introduced into evidence. If upon remand the
Commission determines that there is probable cause, the Commission
then must require the Respondent to appear at a hearing as required
by Sec. 111.36(3), Stats. The Commission, however, may make
the record and exhibits of the 1963 hearings a part of the record
and may limit the introduction of evidence and exhibits to new
evidence and exhibits pertinent to the issues before the Commission.
Sec. 227.10, Stats.
The Attorney General has urged that the Petitioner has had an
extensive opportunity for hearing and that at such hearings he was
urged to introduce all the evidence favorable to his position. In
view of the fact that the Petitioner was legally required to
introduce only such evidence as would establish probable cause, this
Court cannot speculate that he introduced all the evidence which
might have probative value. If the evidence introduced by Petitioner
was sufficient to meet the requirement of probable cause, then
Petitioner would be denied a valuable right if he were not given an
opportunity at a hearing required by statute to present such
additional evidence as would prove unlawful discrimination if such
evidence does in fact exist.
Counsel for the Petitioner may prepare the appropriate Order,
submitting same to opposing counsel 10 days before presenting it to
the Court for signature.