|STATE OF WISCONSIN
DEPARTMENT OF INDUSTRY,
LABOR AND HUMAN RELATIONS,
DECISION ON REVIEW
Case No. 128-101
BEFORE THE HON. RICHARD W. BARDWELL, CIRCUIT JUDGE
This is an action for review of an order of the Department of
Industry, Labor, and Human Relations dated June 12, 1969, affirming the initial
determination of the examiner dated January 29, 1969, wherein it was found that
no probable cause existed that petitioner, Ronald Warren, was terminated from
employment with Mt. Sinai Hospital because of race. Accordingly, the
complaint was dismissed.
On October 15, 1968, petitioner, a black man, filed an initial complaint with
the Equal Rights Division of the Department of Industry, Labor and Human
Relations pursuant to the provisions of Wis. Stat. sec. 111. 36, alleging that
Mt. Sinai Hospital, 948 N. 12th Street, Milwaukee, Wisconsin, had
committed an act of discrimination against him on the basis of race.
Mr. Warren was employed by Mt. Sinai Hospital as a physical therapist during
June, 1968. On June 19, 1968, the hospital’s chief therapist gave notice of
resignation and recommended Mr. Warren for his position. Petitioner’s
credentials and technical qualifications for the job were never at issue. After
some preliminary inquiries into alleged past incidents and relationships, Mr.
Warren was offered the position on July 17, 1968, at a starting salary of
Mr. Warren expressed dissatisfaction with the starting salary
and suggested a $1,000 increase He contends that during subsequent negotiations
repeated reference was made to a relationship between himself and a white,
married member of the staff. Hostilities increased between the parties, and at a
subsequent meeting an acceptance of the original offer was rejected by the
hospital. Mr. Warren’s employment was terminated on July 26, 1968.
Warren contends that because his credentials are impeccable and because of the
repeated inquires with respect to his relationship with a white member of the
staff, the only factor operative in the denial of the position of Chief
Therapist and his subsequent discharge was racial discrimination.
Mrs. Harry Rose, field representative for the department, conducted an ex parte
investigation of the complaint and on January 24 1969, issued an initial
determination holding that there was no probable cause to believe that an act of
racial discrimination had been committed against Mr. Warren. She concluded
that Warren had been discharged because of the hostilities which developed
between the parties during the course of their negotiations. She found that
their relationship had deteriorated to the point where it would be difficult to
work together because of Mr. Warren’s "authoritarian manner”.
The inquiry into the relationship with a white member of the staff was
purportedly conducted only because both were married, and not because of race.
On February 14, 1968 (sic), the Equal Rights Division issued an order
sustaining the initial determination of January 29, 1969, and dismissing the
On May 16, 1969, a meeting was held with department commissioners and the
parties for the purpose of review. An order was issued on June 12, 1969,
affirming the initial determination of no probable cause and dismissing the
Petitioner contends that the ex parte investigation of the department coupled
with the meeting with the commissioners on May 16, 1969, was insufficient to
satisfy the requirements of due process. We agree.
The informal meeting of May 16, 1969, did not give petitioner an
opportunity to present witnesses and testimony in support of his claim.
Warren was effectively foreclosed of the opportunity to present any evidence
on his behalf. The letter of April 18, 1969, notifying the parties of the
scheduled meeting expressly states that “no additional evidence will be
considered by the Commission at this meeting”.
The only record before the commission for its review was comprised of
petitioner’s complaint and the investigatory conclusions of examiner, Rose.
There is nothing in the record to substantiate either her conclusions or the
diligence or fairness with which she conducted the investigation.
When the commissioners determined that the evidence before them was insufficient
to establish probable cause, they acted in a quasi-judicial manner. In this
state when a public administrative body in Wisconsin acts in a “quasi-judicial" rather than in a “legislative” capacity, it must base its decision on judicial
evidence which can be reviewed as to sufficiency by a competent reviewing
authority. State ex rel. Lacross (sic) v. Rothwell, 25 Wis. 2d 228, 238-239, 130
N. W. 2d 547 (1964); 1 Davis, Administrative Law Treatise, p.
412, sec. 7. 02.
See also, State ex rel. Cities S. O. Co. v. Board of Appeals, 21 Wis. 2d 516, 124
N. W. 2d 809 (1963). In accord, see Ashwaubenon v. Public Service Comm. , 22 Wis.
2d 38, 46, 126 N. W. 2d 567 (1963).
The question presented is whether an ex parte investigation coupled with an
argumentative type hearing satisfies the requirements of due process. We
conclude that it does not. There is nothing in the record which can be
judicially reviewed. Lacking that we cannot pass on the issue of probable
Mrs. Rose concluded there wasn’t any. The department commissioners agreed but we
are left totally in the dark as to the evidence, viz sworn testimony which might
or might not support the conclusion reached. If the state’s equal rights law is
to have any meaning, one who alleges wrongful discrimination must be given an
opportunity to be heard fairly and impartially with the right of judicial review
The decision and order of the department of June 12, 1969, is reversed and
remanded to the Commission with instructions to hold a formal hearing on the
issue of probable cause.
Dated: December 21, 1970.
BY THE COURT:
/s/ Richard W. Bardwell