200 Employment Discrimination

210 Coverage

211 Who May File a Complaint

211.1 Covered Individuals

The Ordinance validity confers jurisdiction on the Commission to consider discrimination complaints involving state vocational, technical and adult education districts. Atty. Gen. Opinion, OAG 58-81, 70 AG 266 (1981).

The Commission had jurisdiction over claims involving job assignments and discharge as well as hire and hire-related issues (such as retaliation in regard to rehire) where the employer's only business office was located in the City of Madison and it retained control over all job activities even where the job duties were performed one hundred percent on the University of Wisconsin-Madison Campus. Whiteagle v. Badger Mechanical, No. 20133 (MEOC, 1/31/86), app. pending.

. . . but the MEOC's jurisdiction does not extend beyond the City limits. Anchor Savings & Loan v. MEOC (Schenk), supra.

The Respondent moved for dismissal of the complaint for lack of jurisdiction based upon its contention that the Complainant was not an employee of the Respondent. The Hearing Examiner concluded that even though the Complainant was not an employee of the Respondent in a strict sense, she worked at the Respondent's facilities in order to benefit its programs. Therefore the Respondent owed the Complainant a duty of protection under Sec. 3.23(7)(a) of the ordinance. Thompson v. St. Mary's Hospital Medical Center, MEOC Case No. 21734 (Ex. Dec. 3/8/94).

Respondent moved to dismiss the complaint, asserting that all decisions relating to the Complainant's employment in Hong Kong were made outside of the state of Wisconsin and the U.S. The Hearing Examiner could find no support in the record for the Complainant's contention that the Complainant's current employer, a sister company to the Complainant's former employer, and within the geographical jurisdiction of the Commission, played any part in the elimination of the Complainant's position in Hong Kong. The Hearing Examiner concluded that the Commission was without geographic jurisdiction over the allegations of the complaint. Zabit v. Kraft Foods et al., MEOC Case No. 22563 (Ex. Dec. 5/19/98)

211.2 Covered Employment Relationships; Independent Contractors

A Complainant who alleges employment discrimination on the basis of race, national origin and color is barred from pursuing his claim when his contractual arrangement with Respondent contemplates that there be no control over the manner in which Complainant sells Respondent's product, where Complainant is responsible for all taxes and expenses incurred in selling the product and is free to set his own hours, schedule and other working conditions. Kabir v. Electrolux, MEOC Case No. 22485 (Ex. Dec. 11/11/96).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The Hearing Examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the Hearing Examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the Hearing Examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

Is a person designated as an independent contractor considered an employee for jurisdictional purposes? The question would not be answered as the case was dismissed for lack of communication on the part of the Complainant, and not for any jurisdictional argument. Obriecht v. Farmers Insurance, MEOD Case No. 20172036.

211.3 Standing

211.9 Miscellaneous

The Complainant alleged that the Respondent discriminated against him on the basis of his political beliefs and sex in housing, employment, public accommodations and in the provision of City services or facilities. Specifically, the Complainant claimed he was discriminated against because Respondent's board of directors was all female or considered feminist. The Hearing Examiner found that service on Respondent's board of directors was not a public place of accommodation or amusement because the Respondent has highly selective criteria for selecting a director. In addition, there was no evidence that Complainant had standing because there was no indication in the record that he applied for a director position.

The Complainant further alleged that the Commission had jurisdiction to enforce the non-discrimination provisions of a City of Madison contract for the provision of service with the Respondent in the area of domestic prevention and intervention. The Hearing Examiner found no support in the ordinance for such jurisdiction and indicated that such was a matter that should be taken up before the Common Council or with the Community Services Commission.

The Hearing Examiner did not address the allegation of housing discrimination as that matter was pending in the Dane County Circuit Court.

The Complainant also alleged a violation of the City facility and Services portion of the ordinance. The Hearing Examiner found that the Complainant had failed to established standing for the alleged violation because Complainant never requested the services that were the subject of the City facilities and services.

The Complainant also contended that he was discriminated against when he was not allowed to work as a volunteer on Respondent's crisis line because of his sex. The Hearing Examiner determined that the ordinance does not cover volunteer positions because there is no exchange of compensation as in an employer-employee situation.

The Complainant also alleged discrimination in advertisement when the Respondent identified itself as a feminist organization on its recruitment advertising. The Hearing Examiner found that this was not a violation of the ordinance because it was a mechanism for the Respondent to identify itself, not to prevent non-feminists from applying for positions within the Respondent's organization. On appeal, the Commission agreed with the Hearing Examiner's decision. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. 8/20/99, Ex. Dec. 3/26/99).

Although the Complainant, a homosexual male, is protected by the Equal Opportunities Ordinance, Sec. 3.23, because of his sexual orientation, Respondent did not discriminate against him on this basis upon discharging him from employment. The Hearing Examiner concluded that Complainant's extreme and undesirable public behavior at a work-related convention was the Respondent's non-discriminatory reason for terminating Complaint's employment. Goad v. Ahrens Cadillac/Oldsmobile, Inc., MEOC Case No. 20022061 (Comm. Dec. 12/26/06, Ex. Dec. 8/6/06).

212 Against Whom a Complaint May Be Filed

212.1 Employers

While the prohibition against employment discrimination in section 7(a) of the Ordinance is stated in terms broad enough to contemplate an action against an individual as set forth in the complaint, it does not contemplate an action against an individual state employee engaged in conduct within his or her job responsibilities. Seshadri v. David Ward, et al., MEOC Case No. 22393 (Ex. Dec. on jurisdiction, 8/7/96).

Complainant filed a charge of discrimination based on sexual harassment and retaliation against the Respondent in his individual capacity. The Hearing Examiner granted Respondent's motion to dismiss as to sexual harassment finding that the ordinance employment section does not support claims against persons in their individual capacities. The Hearing Examiner denied the motion as to retaliation finding that the ordinance retaliation section was intended to cover individuals, as well as employer actions.

On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment status.

The Complainant also alleged emotional distress damages stemming from alleged acts of sexual harassment and retaliation, the Hearing Examiner found that the MEOO is not preempted by the Wisconsin Worker's Compensation Act's (WCA) exclusivity provision. Therefore, parties may seek remedy under either the WCA or the ordinance or both. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

The Hearing Examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99).

Complainant filed a charge of discrimination based on age discrimination against Respondent, a non-profit religious organization. The court ruled that MEOC could not include the Respondent as an "employer" because state law, at that time, specifically and expressly did not allow non-profit religious organizations to be deemed as employers. St. Vincent De Paul Society v. MEOC, No. 83-1105 (Ct. App. 10/25/84).

An employer has a duty to follow through when it indicates an employee's job status will be reviewed at a later date. Rosin v. Rite-Way Leasing Company, MEOC Case No. 19982206 (Comm. Dec. 4/22/02, Ex. Dec. 10/3/01).

After the Complainant was rejected for several part-time jobs bagging groceries, she filed a complaint with the Equal Opportunities Commission, claiming the Respondent had discriminated against her based upon her disability and conviction record. The Respondent moved to dismiss the complaint for lack of jurisdiction. According to the Respondent, the Commission lacked geographical jurisdiction because decisions about hiring new employees were made in Milwaukee, not Madison. Thus, the Complainant could not have been discriminated against in Madison. The Hearing Examiner ruled that the Commission did have jurisdiction. The determining factors were: (1) incongruity with State courts on the question of geographical jurisdiction-whether discrimination "occurs" where the challenged decision was made or where the impact was felt--would produce anomalous results and would serve no useful purpose, and (2) the Hearing Examiner could not have found lack of jurisdiction without undermining the public policy of the City of Madison. Williams (f/k/a Stevenson) v. Copps Food Center, MEOC Case No. 20042113 (Ex. Dec. 2/9/2005).

Complainant requested that the Hearing Examiner issue an order holding the Respondent, Respondent's manager, and Respondent's owner jointly and severally liable in the event of a finding of discrimination or retaliation.

Concerning the request regarding the manager, a previous Hearing Examiner decision finding personal liability of a supervisor for retaliation was rejected by the Circuit Court. Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 02/20/2001). Regarding the possibility that the manager had an ownership interest in Respondent and might thereby be held personally liable as an owner or partial owner, the Hearing Examiner finds that there was no evidence in the record linking the manager to any such interest at any time relevant to this complaint.

With respect to the request regarding the owner, in the absence of any information about the legal form of organization of the Respondent, and the fact that the owner is not a named party, the Hearing Examiner's decision applies only to the named party. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

Complainant filed a claim against Respondent North Central States Regional Council of Carpenters Training Fund (Training Fund) alleging discrimination based on his race, color, and in retaliation when he was harassed and then terminated from his apprenticeship. At an early point in the investigation Respondent interposed a claim for lack of jurisdiction based on three contentions. The Hearing Examiner addressed the Respondent's argument that the Training Fund is not a proper party because it is not and never has been the Complainant's employer.

In the past, the Hearing Examiner has defined the "essence of the employment relationship" as "work in exchange for compensation." Schenk v. Domestic Abuse Intervention Services, Inc. The relationship between the Complainant and Respondent in this case much more clearly resembles the relationship between student and school. The Respondent did not pay the Complainant for the work he performed as part of his apprenticeship, while payment came from Complainant's employer, under terms set forth by the union and the state.

Furthermore, the Respondent had no control over other factors that might be said to indicate an employment relationship, such as work hours or schedule, nor did the Respondent "hire" or "fire" the Complainant, or have any control over whether Complainant was accepted into the program. Wis. Stat. Sec. 106.01(5p) gives the DWD sole power to terminate an apprentice contract. Under the circumstances of this claim, the Hearing Examiner must conclude that the Complainant was not an employee of the Respondent, and that the Commission lacks jurisdiction in this case. Dinkins v. North Central States Regional Council of Carpenters Training Fund, MEOC Case No. 20162002 (Ex. Dec. re: jurisdict. 09/26/2016).

212.2 Labor Organizations

212.3 Licensing and Employment Agencies

212.4 Other Person/Organization

Concerning the request regarding the manager, a previous Hearing Examiner decision finding personal liability of a supervisor for retaliation was rejected by the Circuit Court. Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 02/20/2001). Regarding the possibility that the manager had an ownership interest in Respondent and might thereby be held personally liable as an owner or partial owner, the Hearing Examiner finds that there was no evidence in the record linking the manager to any such interest at any time relevant to this complaint.

With respect to the request regarding the owner, in the absence of any information about the legal form of organization of the Respondent, and the fact that the owner is not a named party, the Hearing Examiner's decision applies only to the named party. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

After the issuance of a Notice of Hearing in this case but before the hearing, an officer of Respondent corporation informed the Department of Civil Rights that Respondent had dissolved. Complainant then filed a motion to amend the complaint by adding the aforementioned officer as a Respondent. MEOC rules allow a Complainant to amend a complaint by right prior to the issuance of a Notice of Hearing, but only for good cause after that time.

The Hearing Examiner denied Complainant's request for leave to amend the complaint for three reasons. First, there would not be time for the parties to properly prepare for the hearing. Second, adding another party would require a remand to the Investigator to properly bring another party into the matter.

Third, the law only recognizes the corporate entity as a valid party. The Equal Opportunities Commission (the predecessor to the Department of Civil Rights) was instructed when it attempted to maintain a claim against an individual corporate officer in Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 02/20/01) that the Ordinance does not support claims against individuals separate from their corporate persona. Obriecht v. Midwest Infinity Group, MEOC Case No. 20162022 (Ex. Dec. on fees: 04/21/2017; Ex. Dec. on liability: 03/24/2017; Ex. Dec. on mot. to add party: 02/01/2017; Ex. Dec. on mot. to dismiss: 02/01/2017).

212.5 Respondent's Responsibility for Acts of Agents

The Hearing Examiner found that the Complainant could maintain an action against the Respondent for alleged sexual harassment by an employee of the Respondent's general contractor. The Hearing Examiner found that the Complainant must be allowed to prove either that the Respondent knew of the likelihood of injuries, could have taken steps to prevent the injuries and did not, or that the Respondent negligently supervised the performance of the contract. Thompson v. St. Mary's Hospital Medical Center, MEOC Case No. 21734 (Ex. Dec. 3/8/94).

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Complainant, an experienced bartender, claimed that Respondent violated the Equal Opportunities Ordinance when it failed to take reasonable action to provide her with a workplace free from sexual harassment despite Respondent’s knowledge or constructive knowledge of the situation, and when the Respondent retaliated against the Complainant for her exercise of a right protected by the Ordinance by terminating the Complainant's employment for her complaints of the sexually hostile environment and opposition to having to work in those conditions.

Ordinance Section (k)(4) makes it clear that sexual harassment generated by nonemployee individuals such as customers, contractors or other third parties, violates the Ordinance where the harassment occurs during the employee's regular work duties and where the employer knows or reasonably should know of the harassment. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

212.9 Miscellaneous

The Complainant filed charges alleging that the Respondent, a joint private-public commission, did not hire her because of her race, sex and handicap/disability. The Hearing Examiner determined that the Respondent was not a properly named party because the Respondent's functions were only ministerial. The Respondent was not responsible for the hiring of the position and did not oversee it and had no management authority over the position. Rhyne v. Employment & Training Association, MEOC Case No. 22723 (Ex. Dec. 4/6/99).

The Hearing Examiner concluded that the Commission was without jurisdiction over the allegations of the complaint because the legislature had retained control over the Complainant's position as a Diagnostic Radiologic Technician. The Complainant was employed by the University Hospital and Clinics Board which is an agency of the state of Wisconsin. The legislature specifically provided for exclusive jurisdiction for the Personnel Commission over state employees, thus, depriving the Commission of jurisdiction. Carey v. UW Health, MEOC Case No. 19992097 (Ex. Dec. 8/17/99).

A respondent has no obligation to make contact with a law enforcement entity when there is no evidence of criminal conduct at the worksite. An employer did not fail to provide an environment free of sexual harassment when it acted promptly upon being notified of possible harassment. Pflaum v. Union Transfer and Storage, Inc., MEOC Case No. 20002092 (Ex. Dec. 4/5/02).

In this age and sex discrimination case, the Respondent moved to dismiss the complaint against the American Red Cross (ARC) for lack of subject matter jurisdiction. The Hearing Examiner granted the Respondent's motion on the grounds that ARC is not an "integrated employer" and ARC did not exercise control over the terms and conditions of the Complainant's work. The Respondent also moved for summary judgment on the merits in favor of the American Red Cross, Badger Chapter. However, the Hearing Examiner denied this motion on the ground that once a case has been certified to a hearing on the merits, the case must go to hearing. Birk v. American Red Cross, Badger Chapter, MEOC Case No. 20062041 (Ex. Dec. 4/9/10).

In this age discrimination case, the Respondent moved to dismiss the complaint against the American Red Cross (ARC) for lack of subject matter jurisdiction. The Hearing Examiner granted the Respondent's motion on the grounds that ARC is not an "integrated employer" and ARC did not exercise control over the terms and conditions of the Complainant's work. The Respondent also moved for summary judgment on the merits in favor of the American Red Cross, Badger Chapter. However, the Hearing Examiner denied this motion on the ground that once a case has been certified to a hearing on the merits, the case must go to hearing. As for the Respondent's motion to dismiss individual defendants, the Hearing Examiner held that he would take the motion under advisement pending further development of the record. Schwartz v. American Red Cross, Badger Chapter, MEOC Case No. 20062003 (Ex. Dec. 4/9/10).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter because of the Respondent's status and due to the status of its facility.

The Respondent's facility is within the geographical boundaries of the City of Madison, but because of its status as a recognized tribe, and the titling of the land in the Bureau of Indian Affairs as "Trust Land", the enterprise is not subject to the DCR's jurisdiction. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

As a sovereign nation, the Respondent represents an entity separate and distinct from the City of Madison and the DCR is unable to exercise jurisdiction over it unless the Respondent acquiesces to the jurisdiction of the DCR. There is nothing in the record of this matter indicating that the Respondent has willingly submitted itself to the jurisdiction of the DCR. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent's status as a sovereign nation places it in the same position as other governmental entities such as the federal government, the State of Wisconsin or Dane County that are immune from action under the Equal Opportunities Ordinance. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter due to its status as a sovereign nation and because of its presence on trust lands.

Complainant asserts that the City of Madison has exercised jurisdiction in certain capacities such as police action, contending that if the City has jurisdiction to arrest someone on the Respondent's property, other municipal agencies such as the DCR should also have authority to act. However, the provision of certain enumerated services by the City of Madison is pursuant to a Memorandum of Understanding (MOU) with the Respondent in exchange for an agreement to make certain payments to the City of Madison in lieu of property tax payments which the City of Madison cannot collect given the Respondent's status. These services are not provided as a governmental entity exercising jurisdiction over the Respondent but rather are services provided subsequent to a contract between two independent parties. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming of Madison is a tribe recognized by the United States Department of the Interior, and the land upon which its gaming facility is located is land held in trust for the tribe by the Department of the Interior. In Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. 12/22/2014), the Hearing Examiner determined that the Department was without jurisdiction over the Respondent for reasons of the Respondent's sovereign immunity and because the ownership of the Respondent's land falls outside of the geographic jurisdiction of the city of Madison. As neither party has provided the Hearing Examiner with a reason not to apply the ruling in Meyer to the current case, the Hearing Examiner finds his decision in that case to be controlling in the present matter. That decision compels the Hearing Examiner to the conclusion that the Department of Civil Rights is without jurisdiction over the Respondent. Nolan v. Ho-Chunk Gaming Wisconsin, MEOC Case No. 20142101 (Ex. Dec. on jurisdict. 06/08/2015).

In the past, the Hearing Examiner has defined the "essence of the employment relationship" as "work in exchange for compensation."Schenk v. Domestic Abuse Intervention Services, Inc. The relationship between the Complainant and Respondent in this case much more clearly resembles the relationship between student and school. The Respondent did not pay the Complainant for the work he performed as part of his apprenticeship, while payment came from Complainant's employer, under terms set forth by the union and the state.

213 Effect of Other Laws on MEOO Rights and Remedies

After the Investigator/Conciliator issued an Initial Determination of probable cause that the Respondent had discriminated against Complainant in employment on the basis of his conviction record, and attempts at conciliation failed, the matter was transferred to the Hearing Examiner for further proceedings.

At the Pre-Hearing Conference, the Complainant indicated that he wanted to file for judgment of the pleading based on the existing record, and shortly thereafter filed further supportive materials. Respondent filed both a response to Complainant and a request for dismissal of the complaint due to lack of standing. The Hearing Examiner dismissed both motions.

Complainant's request is based on the procedures of the Wisconsin Department of Workforce Development (DWD) Equal Rights Division (ERD), whose processes and procedures are entirely inapplicable to complaints filed with the Department of Civil Rights. Provisions of the Wisconsin Fair Employment Act Wis. Stats. 111.30 et seq. do not mandate any particular outcome for a complaint filed under the Madison Equal Opportunities Ordinance. Case law developed under different statutes may be useful in assisting a decision maker to the extent that similar purposes and similar language may be helpful in enlightening interpretation of a piece of legislation, but for the most part, decisions interpreting different laws do not have binding results on the interpretation of a law at different level of government. See McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 830 (Ct. App. 1988).

Respondent's motion is framed as a motion to dismiss due to Complainant's lack of standing because the record does not demonstrate that Complainant actually applied for employment, but given Respondent's arguments which address the sufficiency of the arguments in the record rather than the Department's jurisdiction, the Hearing Examiner sees the Respondent's motion as one for summary judgment. Respondent contends that the Initial Determination of probable cause was erroneous and that a hearing should not be required. The Rules of the Equal Opportunities Commission at rule 5.21 make clear that only a finding of no probable cause is appealable. The rules are structured in this manner to protect the due process rights of both parties, in that the Complainant has the opportunity to challenge a finding of no probable cause that would otherwise dispose of the Complainant's interests, while the Respondent's rights are protected by assuring it the right to defend itself at a hearing.

The Hearing Examiner treated both requests as forms of motion for summary judgment, and informed both parties that the Commission did not accept motions for summary judgment unless they go to the jurisdiction of the Department. This has been the position of the Department as far back as 1989. In the case of Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 04/05/89), the Hearing Examiner found that the Rules of the Equal Opportunities Commission state a preference to hearing once a complaint has been certified to hearing, and told the Complainant who had moved for summary judgment that such motions were not available. The Rhone decision has been followed by subsequent hearing Examiners. See Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

The Hearing Examiner found no merit in either party's motion, and proceeded to hearing. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter due to its status as a sovereign nation and because of its presence on trust lands.

213.1 Federal Laws

Respondents moved to dismiss an allegation of discrimination on the basis of political beliefs (unlawful interference with unionization efforts) based on preemption by the National Labor Relations Act (NLRA). The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. The Hearing Examiner recognized that, had the Complainant's political beliefs been limited to vocal support for the idea of a union, it is possible that the Hearing Examiner would not find preemption. One key difference between the NLRA and the ordinance appears to exist along the line of activity as opposed to thought. Zitnick v. Capitol Lakes, MEOC Case No. 20092085 (Ex. Dec. 3/2/10).

The Respondent argued that the Federal Arbitration Act requires the Madison Department of Civil Rights, Equal Opportunities Division to either dismiss or stay the Complainant's allegations of age discrimination and retaliation. The Respondent requested that the Hearing Examiner order the parties to submit to mediation and arbitration pursuant to the Respondent's Employee Dispute Resolution Plan. The Hearing Examiner found that the Plan constituted a valid agreement to resolve disputes arising under the Plan and that it was neither procedurally nor substantively unconscionable. Thus, the Hearing Examiner ordered the parties to submit to mediation and arbitration. However, the Hearing Examiner stayed rather than dismissed the case to ensure that the Complainant had a forum available for review of the arbitrator's decision. Witten v. Firestone Complete Auto Care, MEOC Case No. 20092026 (Ex. Dec. 9/8/10).

The Complainant alleged that the Respondent, in denying his application for Section 8 housing, discriminated against him on the bases of color, arrest record, and conviction record. In its answer to the complaint, the Respondent moved to dismiss the case for lack of personal jurisdiction and for lack of subject matter jurisdiction. The Hearing Examiner found that the Equal Opportunities Division (EOD) has personal jurisdiction over the Respondent because, although the Respondent may be an independent body politic, it is nevertheless an agent of the City of Madison. The provisions of the Equal Opportunities Ordinance prohibit discrimination in the provision of housing by the City of Madison or by an agent of the City. As for the Respondent's motion to dismiss for lack of subject matter jurisdiction, the Hearing Examiner held that a jurisdictional determination would be premature because the Respondent's motion interrupted the EOD's investigative process. Therefore, the Hearing Examiner remanded the Complainant's claims of arrest and conviction record discrimination to an Investigator/Conciliator for further investigation and the issuance of an Initial Determination. The Hearing Examiner ordered that the Complainant's color discrimination claim be transferred to either the Department of Workforce Development or to Housing and Urban Development. Brown v. CDA, MEOC Case No. 20101085 (Ex. Dec. 01/20/2011).

In the present matter, the parties contracted with each other to avoid litigation prior to the commencement of any proceedings before the Commission or any other body. Asked by Respondent to enforce the terms of the settlement, the Dane County Circuit Court dismissed the proceedings and indicated that the MEOC should have the first opportunity to address the waiver issues.

The Hearing Examiner finds that it is more consistent with the provisions of the Equal Opportunities Ordinance and the burdens established under the Ordinance for the Complainant to carry the burden of proof as to the issue of the nonvalidity of the waiver.

The Hearing Examiner sees the process of producing the agreement and the challenge of the waiver to be similar to the portion of the McDonnell Douglas/Burdine burden shifting analysis whereby the Respondent has the burden to produce evidence of a legitimate, nondiscriminatory explanation, but that the Complainant can overcome the presumption of a lack of discrimination by demonstrating a lack of credibility or pretext on the part of the Respondent. Since it is the Complainant who wishes to disturb the status quo created by signing of the settlement agreement, it is appropriate that the Complainant bear the burden of proving that the status quo is illusory. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

Respondent's indication in its initial brief that because MEOC does not seek to separately enforce the provisions of the Ordinance, it need not consider whether settlement agreements and waivers reached between parties attempt to limit MEOC's ability to implement such enforcement, is erroneous.

Mad. Gen. Ord. Sec. 39.03(10)(c)(3)(a and b), and 39.03(10)(d)(13) indicate that the Commission may request that the Office of the City Attorney file an action to enforce the Ordinance, an authority separate and distinct from the enforcement process that is generally pursued i.e., processing individually filed complaints. Additionally, Section 39.03(10)(b)(4) provides for a process whereby an individual member of the Equal Opportunities Commission is empowered to file a complaint to enforce the Ordinance.

It is true that these Commission authorities have rarely been used or even considered, but the power for the Commission to act beyond review of an individually filed complaint exists in parallel with the similar authority of the EEOC. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

The heart of the question in this case for the Hearing Examiner is what process should be utilized by the Commission to adjudge the sufficiency of a settlement agreement in the context of the Commission's complaint process.

While the Respondent suggests that the Commission follow the approach taken by the ERD that utilizes a "totality of circumstances" test when determining whether a settlement agreement and waiver should be given preclusive effect, the Complainant urges the Hearing Examiner to follow the checklist of factors and the burden of proof utilized in age discrimination cases by the EEOC. Both approaches have some commonalities. It is these common factors that will be of the greatest use to the Hearing Examiner.

While the Commission has a Worksharing Agreement with both the ERD and the EEOC, and consistency among enforcement agencies is a highly desirable goal and consideration, all three agencies recognize that they need not travel in lockstep with each other for them to work effectively together.

Ultimately, the Hearing Examiner must attempt to divine the intent and purpose of the Ordinance and give effect to the provisions of the Ordinance. In doing so, the Hearing Examiner may find particular policies or interpretations of similar laws to be persuasive, but rarely are those different decisions binding upon the Hearing Examiner's interpretation of the Ordinance. While the Hearing Examiner will follow an approach like the totality of circumstances approach as set forth in the cases from the ERD cited by the Respondent, the Hearing Examiner may not necessarily adopt the same elements utilized by ERD and LIRC. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

213.2 Wisconsin Fair Employment Act

The Respondent further argued that the Wisconsin Worker's Compensation Act provides the exclusive remedy for emotional damage awards where emotional injury arises out of the employment context. The Hearing Examiner determined that the WFEA did not preempt the ordinance by comprehensively regulating the field of employment discrimination.

The Hearing Examiner found that the Commission did have the authority to make awards of compensatory damages for emotional injuries that resulted from acts of discrimination, since loss of equal employment opportunity and violation of civil rights fall outside of coverage of the Worker's Compensation Act. Cooper v. TCI Cablevision of Wisconsin, MEOC Case No. 21036 (Ex. Dec. 4/16/91).

The City consented to an Order Granting Absolute Writ of Prohibition, prohibiting MEOC from exercising jurisdiction to hear claims against the petitioner in matters of alleged employment discrimination or public accommodation discrimination where the question involved is one of a student's academic performance. State ex rel. Area Vocational, Technical and Adult Education District No. 4 v. Equal Opportunities Commission of the City of Madison and Clifford E. Blackwell, 91 CV 1537 (Dane County Cir. Ct. 7/29/91).

The Complainant alleged she was the subject of sexual harassment by other employees which caused emotional distress and ultimately led her to leave her employment. Respondent filed a motion to dismiss for lack of jurisdiction, asserting that the Worker's Compensation Act barred the Complainant's claim. The Hearing Examiner held that the agency had jurisdiction, finding an implied exception to the exclusivity of the Worker's Compensation Act. Because the legislature adopted the Fair Employment Act and its specific protections regarding sexual harassment long after it adopted the WCA, it cannot have adopted the FEA only to have it rendered meaningless by the previously adopted WCA. Madalon v. Midcontinent Broadcasting; WTSO-AM/WZEE-FM, MEOC Case No. 21531 (Ex. Dec. 1/5/93).

The Respondent moved to dismiss because of a conflict in the extent of exemptions provided for the employment activities of religious organizations in both the Wisconsin Fair Employment Act (FEA) and the ordinance. The Hearing Examiner found that the Commission could exercise jurisdiction but only to the extent provided in the FEA. Potter v. Madison Gospel Tabernacle, MEOC Case No. 21269 (Ex. Dec. 2/14/94).

Where the Respondent moved to dismiss the complaint for lack of jurisdiction alleging the Commission is without jurisdiction to address the allegation of conviction record discrimination because the Commission is preempted by state and federal law, the Examiner ruled that although not preempted by the Wisconsin Fair Employment Act, the Ordinance was preempted by the applicable federal statute that automatically disqualified an individual from employment who had been convicted of a crime involving injury to another person. Respondent provides physical and related care of elderly and/or developmentally disabled persons. Complainant was convicted of second degree sexual assault stemming from an allegedly consensual sexual relationship with a 15-year-old male. Pagel v. Elder Care of Dane County, MEOC Case No. 22442 (Ex. Dec. 10/31/96).

The Respondent moved to dismiss the complaint for lack of jurisdiction because of the differences in remedial authority of the FEA and the Equal Opportunities Ordinance. The Hearing Examiner determined that previous decisions by the Wisconsin Supreme Court have upheld the ordinance's validity in the face of a potential conflict with the FEA. On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

In a case involving allegations of retaliation for the exercise of a right protected by the ordinance, the Respondent, a school district, moved to dismiss the complaint for lack of subject matter jurisdiction. The Respondent's contentions supporting dismissal fall into three general assertions. First, the Respondent argues that matters of employment, such as hiring and firing personnel, are matters of state wide concern and therefore such matters are beyond the purview of the city's local equal opportunities ordinance. Second, the Respondent maintains that it is an agent of the state and as such it is not subject to the Equal Opportunities Division's (EOD) jurisdiction. Third, the Respondent contends that, even if the EOD has jurisdiction, a recently enacted state law expressly divests the EOD of the authority to award compensatory or punitive damages against a school district. The Hearing Examiner found that the issue of employment discrimination constitutes both a statewide and a local concern. Since the Respondent failed to demonstrate a discernible conflict of laws, the Hearing Examiner concluded that the EOD is permitted to enforce the ordinance. In addition, while conceding that the EOD is without jurisdiction to issue punitive damages awards, the Hearing Examiner found that state law neither expressly nor impliedly withdraws power from the EOD to issue an award of compensatory damages against a school district. Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 06/09/11).

213.3 Workers Compensation Act

Complainant alleged she was not given the same opportunities as other persons not of her protected classes and that she was terminated because she was a Black lesbian. Respondent filed a motion in limine to prevent the Complainant from taking any discovery or introducing any testimony relating to Complainant's compensatory, punitive or emotional damages, arguing that the Commission is without statutory authority to make an award of such damages and in fact, is preempted from doing so by the Wisconsin Fair Employment Act. The Respondent further argued that the Wisconsin Worker's Compensation Act provides the exclusive remedy for emotional damage awards where emotional injury arises out of the employment context. The Hearing Examiner determined that the WFEA did not preempt the ordinance by comprehensively regulating the field of employment discrimination. The Hearing Examiner found that the Commission did have the authority to make awards of compensatory damages for emotional injuries that resulted from acts of discrimination, since loss of equal employment opportunity and violation of civil rights fall outside of coverage of the Worker's Compensation Act. Cooper v. TCI Cablevision of Wisconsin, MEOC Case No. 21036 (Ex. Dec. 4/16/91).

The Complainant filed a discrimination claim against the Respondent for refusing to reasonably accommodate her disability, carpal tunnel syndrome or repetitive motion syndrome. The Complainant later amended her complaint to include sex discrimination. Respondent filed a motion to dismiss on the basis that the claim was preempted by the exclusivity provision of the Wisconsin Worker's Compensation Act. (WCA)

The Hearing Examiner found the Commission to have jurisdiction to investigate the complaint. With respect to the claim of sex discrimination the Examiner determined that there was no overlap of jurisdiction between the ordinance and the WCA and that the Complainant's allegation of sex discrimination did not represent a ruse to bring her claim of handicap/disability discrimination before the Commission.

With respect to the claim of handicap/disability discrimination, the Hearing Examiner concluded that the WCA's purpose of compensating an employee for an injury did not overlap with the ordinance's intent to assure an employee the highest level of employment given an employee's handicap/disability. While recognizing that some damages might overlap, the Hearing Examiner found that the complaint should be permitted to be processed through investigation to determine whether such an overlap might in fact exist. The Commission adopted the Examiner's decision in its entirety.

The Circuit Court reversed the Commission's finding of jurisdiction over the allegation of handicap/disability discrimination as a result of the Commission's withdrawing its decision on this point. The Circuit Court did not discuss this issue. The Court affirmed the Commission's finding of jurisdiction on the allegation of sex discrimination, finding no overlap between the WCA's provisions and those of the ordinance. Schoenemann v. Madison Gas and Electric, MEOC Case No. 21699 (Comm. Dec. 1/28/93, Ex. Dec. 7/31/92). Madison Gas and Electric Co. v. Equal Opportunities Commission of the City of Madison and Schoenemann, 93 CV 0894 (Dane County Cir. Ct. 11/22/93).

The Respondent's motion to dismiss for lack of jurisdiction was based on a conflict between the WCA and the EOO was denied. The Hearing Examiner determined that, due to the Court of Appeals' decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison, the remedies remaining to the Commission are not in conflict with the remedies under the WCA. Should the Common Council make the Commission's authority to award compensatory damages in employment cases clear, the issue of preemption by the exclusivity principle may once again be raised as a bar to the Commission's proceeding. Puent v. Corning Besselaar Clinical Research Units, Inc., MEOC Case No. 22366 (Ex. Dec. On jurisdiction 1/10/97).

Respondent contended that the exclusivity provision of the WCA required dismissal of the complaint. The Hearing Examiner determined, in accordance with the Wisconsin Supreme Court's decision in Byers v. LIRC, 208 Wis. 2d 388 (1997) that individuals can pursue remedies under either or both laws. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex Dec. on jurisdiction 4/28/97, 8/10/99).

The Hearing Examiner denied Respondent's motion to dismiss the complaint based on the exclusivity principle of the Workers Compensation Act. The Wisconsin Supreme Court in Byers v. LIRC, 208 Wis. 2d 388 (1997) determined that the WCA was not necessarily the exclusive remedy for claims of sexual harassment. The Hearing Examiner determined that though the Byers decision applied to the Wisconsin Fair Employment Act, the rationale applied equally to the Madison EOO. Harvey v. Marshall Erdman & Associates, MEOC Case No. 21614 (Ex. Dec. 5/9/97).

The Hearing Examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

213.9 Miscellaneous

As a general proposition, municipal ordinances may contain bases of discrimination more inclusive than the bases of discrimination listed in Section 66.432, Wis. Stats. and 101.22, Wis. Stats. Atty. Gen. Opinion, OAG-46-85 (12/17/85).

The Hearing Examiner found that Complainant's claim of age and sex discrimination had to be arbitrated as required by the Complainant's employment contract. The Hearing Examiner retained jurisdiction to permit review of the arbitrator's decision so that the Commission could ensure that the purposes of the ordinance had been met. Schultz v. Caluori & Shearson Lehman Hutton, Inc., MEOC Case No. 21259 (Ex. Dec. 7/16/91).

The Respondent filed a wide ranging Motion to Dismiss for lack of jurisdiction stating a variety of statutory, constitutional and procedural grounds. The Hearing Examiner found that the Respondent's claims that it was not capable of being sued because of the operation of Wis. Stats. Sec. 893.80(4) were inapplicable because actions before the Commission were not actions for intentional torts.

Also, the Hearing Examiner relied on Wis. Stats. Sec. 893.80(5) to find an exception to the prohibition against suits for the exercise of quasi-judicial power such as hiring. This section provided that the prohibition did not apply where there was another statute that provides rights and remedies. The Hearing Examiner determined that the Fair Employment Act and by extension, the Ordinance was such "another statute."

The Respondent contended that the ordinance as applied by the Commission represented an unconstitutional vesting of judicial authority in the Commission. The Hearing Examiner concluded that because the ordinance provided for appropriate judicial review that the Commission was acting within constitutional limits.

Additionally, the Respondent asserted that to the extent that the Commission exercised its authority to award emotional and other compensatory damages, it violated the Respondent's right to a jury trial under the State and Federal constitutions. The Hearing Examiner ruled that because this type of administrative action was not present in the common law at the time of statehood that the Wisconsin constitution's provision for jury trial did not apply. The Hearing Examiner also stated that the 7th amendment's right to a jury trial had not been imposed upon the states by the 14th amendment and was therefore not a bar to the Commission's actions.

The Hearing Examiner determined that the Complainant had stated a claim for pattern and practice discrimination that would allow proof of acts outside of the ordinance's 300 day limit for the filing of complaints. Since the Respondent had notice of this claim, it was premature to rule on the sufficiency of the claim and that the Complainant should be permitted to attempt to prove the allegations at hearing. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

Respondents' moved to dismiss complaints of discrimination on the basis of political belief (trade unionism) based on preemption by federal law. The Complainants had filed unfair labor practice complaints at approximately the same time as their Commission complaints. The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. Moyer, Carey and Kaatz v. Thrift Painting and Genesis Companies Inc., EOC Case Nos. 22440, 22441, 22447, 22448, 22449, and 22450 (Ex. Dec. 7/7/97).

In this matter, the Respondent filed a motion similar to that which it filed in Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 6/9/11). In addition to the grounds stated in the earlier motion, in the present matter, the Respondent contended that the Consent Decree entered in State ex rel. Area Vocational, Technical and Adult Education District No. 4, by its Board v. Equal Opportunities Commission of the City of Madison (the MATC case) required similar treatment of the Respondent. The Hearing Examiner incorporated by reference his decision in Rhyne and found that the Respondent's argument concerning the Consent Decree in the MATC case was inadequate to deprive the Madison Department of Civil Rights, Equal Opportunities Division of jurisdiction in this matter. Specifically, there is no evidence of what motivated the parties to enter into the Consent Decree and the Respondent posited only a superficial similarity between it and the MATC. Accordingly, the Hearing Examiner dismissed the Respondent's motion. Banks v. Madison Metropolitan School District, MEOC Case No. 20102172 (Ex. Dec. 8/3/11).

After the issuance of a Notice of Hearing in this case but before the hearing, an officer of Respondent corporation informed the Department of Civil Rights that Respondent had dissolved. In that transmittal, neither the officer nor the Respondent specifically filed a Motion to Dismiss the complaint; however, the Hearing Examiner took the notification as some form of a request to end the current proceeding.

The Hearing Examiner issued an Order requesting the positions of the parties with respect to the Department's continuing jurisdiction over the Respondent in light of the Respondent's dissolution. The Complainant filed a response while the Respondent did not.

Wis. Stats. 180.1405(2)(f) indicates that dissolution of a corporation does not require dismissal of an action pending against the corporations. Wis. Stats. 180.1405(2)(e) also indicates that dissolution of a corporation does not prevent initiation of an action against a named corporation.

Given these statutory provisions and lacking any contrary argument from the Respondent, the Hearing Examiner denied any motion to dismiss or other form of a request to cease the pending action. Obriecht v. Midwest Infinity Group, MEOC Case No. 20162022 (Ex. Dec. on fees: 04/21/2017; Ex. Dec. on liability: 03/24/2017; Ex. Dec. on mot. to add party: 02/01/2017; Ex. Dec. on mot. to dismiss: 02/01/2017).