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Below please find summaries and links to all the LIRC cases added to the 2024 edition of the ERD Digest. These cases were selected for inclusion in the Digest because we found them to be instructive as an aid to understanding the interpretation of our laws. This update is not a summary of every case LIRC decided during the relevant time period. If you would like to suggest a specific case for inclusion in the Digest, please email the ERD at erinfo@dwd.wisconsin.gov.
The question of whether an individual has a disability within the meaning of the Act is not jurisdictional but goes to the issue of probable cause. Eason v. City of Milwaukee (LIRC, 08/29/23).
Wisconsin Stat. § 111.33(2)(f) provides that it is not employment discrimination because of age “to exercise an age distinction with respect to employment in which the employee is exposed to physical danger or hazard, including, without limitation because of enumeration, certain employment in law enforcement or fire fighting.” Had the Complainant met his burden of establishing that a fitness test employed by the Respondent as part of the application process for the job of conservation warden discriminated against older workers, the commission would have remanded for further evidence as to the applicability of that section. Mitchell v. State of Wis. Dep't of Nat. Res. (LIRC, 10/30/23).
Applying the Spirides test, the commission found that the Complainant performed her services as the Respondent’s executive director in the capacity of an employee and not as an independent contractor. Therefore, the Division had jurisdiction over the claim. Denman v. Wis. Water Well Assoc. (LIRC, 09/29/23).
The Complainant’s petition was dismissed where the commission was the named Respondent but had no actual or potential employment relationship with the Complainant. (The Complainant brought the discrimination claim against the commission based on its decision to uphold a dismissal in a separate case.) Further, the commission is unable to adjudicate a petition for review of a complaint against itself without the appearance of a conflict of interest. Marigny v. State of Wis. – LIRC (LIRC, 09/29/23). NOTE: This case has been appealed to circuit court
Age discrimination was found where the Complainant, a controller for the Respondent, established that she was not considered for a director of finance position for which she was well qualified and that, after being asked to assist in training the individual ultimately hired for the position, she was discharged because the Respondent did not require both a director of finance and a controller. In finding discriminatory intent the commission considered that the decision-makers had a pattern of treating older workers less favorably than younger workers and made comments indicating they favored hiring younger workers. Schaefer v. Marcus Ctr. for the Performing Arts, Inc. (LIRC, 09/29/23). NOTE: This case has been appealed to circuit court.
The Complainant was in the protected age group and was subjected to disrespectful treatment by the Respondent’s superintendent. However, she did not demonstrate that her working conditions were so intolerable as to support a finding of constructive discharge. Further, because the superintendent harassed or bullied other employees without regard to age, the Complainant’s working conditions were not adverse due to a discriminatory reason. Walther v. Sch. Dist. of Altoona (LIRC, 10/30/23).
In analyzing substantial relationship, a review solely of the negative character traits associated with the charged crimes is insufficient; one must consider other relevant and readily ascertainable circumstances of the offense such as the seriousness and number of offenses, how recent the conviction is, and whether there is a pattern of behavior. The substantial relationship test requires that the employer show that the facts, events, and conditions surrounding the convicted offense materially relate to the circumstances surrounding the job. (Citing Cree, Inc. v. LIRC, 400 Wis. 2d 827, 970 N.W.2d 837 (2022)). Lane v. Bellin Mem'l Hosp. (LIRC, 03/16/23).
The arrest and conviction record provisions in the statute focus on criminal recidivism and the risks associated with requiring employers to employ individuals who may be likely to commit criminal acts in the workplace. The commission declined to conclude that a substantial relationship could be found simply based on negative character traits that were incompatible with good job performance, absent any concern that the Complainant might engage in criminal conduct. Lane v. Bellin Mem'l Hosp. (LIRC, 03/16/23).
The Complainant’s conviction for conspiracy to distribute cocaine and possession with intent to distribute cocaine was not substantially related to the job of vegetation management for a landscaping company, which involved working in open prairies with little contact with other people. The commission considered the fact that the Complainant’s criminal conduct occurred seven years earlier and that the Complainant had undergone rehabilitation and had not used cocaine since that time. Armus v. Natural Landscapes, Inc. (LIRC, 10/30/23). NOTE: This case has been appealed to circuit court.
The crime of embezzlement was substantially related to the Complainant’s job as a plumbing instructor at a technical college where the job required the Complainant to place orders for tools and supplies that he was allowed to remove from the classroom and bring to an offsite location. Geiger v. MATC (LIRC, 04/28/23).
The Complainant’s conviction for possession with intent to deliver and the manufacture of THC, which was repeated conduct and which occurred just four years prior to his application for employment with the Respondent, was substantially related to a manufacturing job in the Respondent’s plant, a noisy environment with no supervision and access to private locations. In reaching this conclusion, the commission rejected the argument that the Respondent employs temporary workers and that such workers are more vulnerable to drug use than the general population. Gullan v. General Mills (LIRC, 09/29/23).
The Complainant did not establish a perceived disability where she told her supervisor she had MS but had no work restrictions and did not provide any information that would have led the supervisor to believe she was limited in her ability to engage in major life activities. A statement in the discharge paperwork that the Complainant was unable fulfill on-call needs did not on its own establish that the Respondent believed the Complainant had a disability. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).
A determination that someone is or is not an individual with a disability generally involves a factual inquiry for which a hearing is warranted. Eason v. City of Milwaukee (LIRC, 08/29/23).
Complainant’s testimony that she was diagnosed with MS was insufficient to establish a disability without competent medical evidence. Where the alleged disability is one that would not be apparent to a layperson, expert opinion must be presented on the existence, nature, extent, and permanence of the impairment. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).
The Complainant did not demonstrate a need for an accommodation to observe the sabbath where, although the Respondent required her to be on call for consultations seven days a week and to respond to a call for a consultation within 24 hours, she failed to demonstrate that in her five years of employment for the Respondent this requirement had ever interfered with her observance of the sabbath. Locke v. Advocate Aurora Health Care, Inc. (LIRC, 06/30/23).
The Complainant’s statement to the Respondent that she believed she was being targeted for adverse treatment based upon her status as a specialist teacher was insufficient to put the Respondent on notice that the Complainant was alleging age discrimination. Walther v. Sch. Dist. of Altoona (LIRC, 10/30/23).
After the Complainant complained to the Respondent about the treatment of a Hispanic co-worker, the Respondent called the Complainant into a meeting where it presented her with a document to sign indicating that none of her complaints were valid and told her that she was an employee at will, who could be fired at any time. The Complainant reasonably believed that signing the document was a condition of continued employment. Her resignation under the circumstances was found to be a constructive discharge. Garza v. Koenig Concrete Corp. (LIRC, 10/30/23).
Although there could be situations where services provided by the Respondent, the Division of Vocational Rehabilitation, would be covered by the WPAAL, the services at issue in this case--customized self-employment services which determine eligibility for grant funding--were not covered. Buggs v. State of Wis., DWD, Div. of Voc. Rehab. (LIRC, 10/30/23).
A police department is not considered a “public place of accommodation or amusement” within the meaning of the WPAAL, as it does not provide necessities or comforts of the type offered by the businesses enumerated in the statute. Flores v. City of Columbus Police Dep't (LIRC, 02/08/23).
"Familial status" and "domestic violence victim" are not bases of discrimination covered by the WPAAL. Flores v. City of Columbus Police Dep't (LIRC, 02/08/23).
The Complainant did not establish probable cause to believe that the employer’s requirement of passing a fitness test in order to be hired as a conservation warden had a disparate impact on individuals in the protected age group or that there was an alternative practice that was less onerous and would serve the employer’s interests. Mitchell v. State of Wis. Dep't of Nat. Res. (LIRC, 10/30/23).
The ERD does not have a work-sharing agreement with the New York Division of Human Rights, so filing a complaint with that agency did not constitute filing a complaint with the ERD. Rhyne v. Resource Marketing Corp. (LIRC, 03/30/23).
The 300-day filing limit is not a jurisdictional requirement under the WPAAL. It is a statute of limitations that is subject to waiver, estoppel, and equitable tolling. Sellars v. Nat. Railroad Passenger Corp. (LIRC, 12/22/23). NOTE: This case has been appealed to circuit court.
The fact that the Complainant filed a timely complaint with the New York Division of Human Rights did not suspend the running of the statute of limitations. Although the Complainant contended that he was told by the NY agency that two agencies could not investigate at once, he was not told he could not file a claim with the ERD or that the statute of limitations would be tolled during its investigation. Rhyne v. Resource Marketing Corp. (LIRC, 03/30/23).
A complainant’s allegation that he first became aware of evidence of possible disparate treatment two years after his separation from employment was rejected where the Complainant had information available to him at the time of discharge that would have warranted a suspicion that he was being discriminated against; the Complainant believed he had done nothing to justify the discharge, contended he had told the Respondent he intended to file a wage claim, and indicated that his supervisor had stated a preference for hiring females. Nickel v. City of Milwaukee (LIRC, 09/29/23).
The Complainant argued that his complaint was filed late because he was unaware of the existence of the ERD. However, the Complainant attempted to file his complaint at other agencies, including the Illinois Department of Human Rights, the Federal Rail Association, and the Amtrak Office of Inspector General. He was therefore clearly aware of his right to be free from discrimination and it was incumbent upon him to educate himself regarding the procedures for filing a WPAAL complaint. Sellars v. Nat. Railroad Passenger Corp. (LIRC, 12/22/23). NOTE: This case has been appealed to circuit court.
Where the Complainant alleges that never received the initial determination, he should be given a hearing to prove non-receipt and to establish that the non-receipt was not related to his own actions. Nute v. CESA #5 (LIRC, 08/29/23).
The Respondent’s last-minute request for a postponement based on the death of its attorney three months earlier was properly denied where the Respondent had never informed the Division it had an attorney and made no attempt to contact the attorney until a week before the hearing. Further, the lack of counsel did not prevent the Respondent from presenting witnesses on its behalf at the hearing. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).
Dismissal of a complaint as a sanction for failure to comply with discovery is not appropriate where the Complainant was represented by legal counsel and the administrative law judge did not first make a determination as to whether the Complainant was to blame for the discovery failure. (Citing Industrial Roofing Services, Inc. v. Marquardt, 2007 WI 19, ¶ 61, 299 Wis. 2d 81, 103-04, 726 N.W.2d 898). Vandenbusch v. The Bay at North Ridge Health & Rehab. Ctr. (LIRC, 07/31/23).
The ALJ appropriately denied the pro se complainant’s request for last-minute discovery assistance where the Complainant failed to avail herself of the opportunity to engage in pre-hearing discovery according to the schedule and procedures set up by the ALJ. Eide v. Swiss Tech, LLC (LIRC, 08/29/23).
The Division’s rules do not say anything about what time a document filed by email will be regarded as having been received by the Division and do not contain a requirement that an email must be submitted by the end of state office hours in order to be considered timely. If the Division wants to require that responses submitted by email be received no later than 4:30 p.m. (the end of state office hours), it must clearly notify parties of this fact. Buckner v. Capitol City Tree Experts, Inc. (LIRC, 06/30/23)
The 20-day statute, Wis. Stat. § 111.39(3), does not specify whether the complainant’s response to Division correspondence must be received by the 20th day or whether it is sufficient for a response to have been submitted by the 20th day. If the Division is requiring physical receipt of the document by the end of the 20th day it must clearly notify parties of this fact. Buckner v. Capitol City Tree Experts, Inc. (LIRC, 06/30/23)
It was not abuse of discretion for the administrative law judge to refuse to grant a postponement requested by the respondent due to the death of its attorney when the request was made only one week before the hearing and the respondent never told the Division it was represented by counsel, despite being repeatedly directed to do so. While the respondent argues that the failure to notify the Division was its attorney's fault, errors on the part of legal counsel are imputed to the parties. Towns v. Holistic Home and Hospice (LIRC, 02/08/23).
A new hearing was ordered where the ALJ prevented the pro se complainant from presenting all of her evidence and appeared to have prejudged the case. Ogboni v. MATC (LIRC, 11/29/23).
The commission was unable to review the merits of the complaint where the ALJ’s decision did not dispose of the matter but left some proceedings (a ruling on a motion for sanctions) pending. The petition for review was dismissed and the matter returned to the ERD. Schott v. Lake Geneva Animal Hosp. (LIRC, 08/29/23).
The cost of a flash drive and Westlaw fees were not recoverable since they were part of the complainant’s attorney’s overhead and not specifically related to this litigation, but the cost of personal delivery service fees and witness fees for individuals who did not testify were recoverable. Schaefer v. Marcus Ctr. for the Performing Arts, Inc. (LIRC, 09/29/23). NOTE: This case has been appealed to circuit court.
The Complainant was not required to mitigate the cost of her post-termination medical expenses by purchasing medical insurance. Garza v. Koenig Concrete Corp. (LIRC, 10/30/23).
The commission has no authority to make its own findings under Wis. Stat. § 227.483. Where the ALJ failed to rule on a request for sanctions, the commission has no option but to remand the matter to the ALJ so that she may do so. Schott v. Lake Geneva Animal Hosp. (LIRC, 08/29/23
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