600 Proof - Standards and Burdens

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

The record in this matter is extremely sparse, especially from the perspective of the Complainant, who pursued this complaint pro se. While the Hearing Examiner may extend certain procedural requirements to assist an unrepresented party, the Hearing Examiner may not reduce the standards of proof to assist an unrepresented party. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

In determining whether the party seeking relief from a default judgment has demonstrated excusable neglect, factors that should be considered include whether the moving party acted promptly, whether the default judgment imposes excessive damages, and whether vacating the default judgment is necessary to prevent a miscarriage of justice.

Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

As Respondent's nonappearance and delayed explanation were the result of understandable confusion and not deliberate choice, and the defaulted party was in consequence deprived of the effective assistance of counsel, and there has been no consideration of the merits, and defaulted party has raised a potentially meritorious defense, the Commission finds that four of the five factors in the Miller test of when to grant relief from a default judgment have been met. The commission reversed the Hearing Examiner’s order of default judgment and remanded the complaint for further proceedings. Miller v. Hanover Ins. Co., 2010 WI 75, 326 Wis. 2d 640, 785 N.W.2d 493.

The significance of the Commission's Norris decision, in light of previous Commission decisions regarding the failure of a party to appear at a Pre-Hearing Conference, is not that every party gets to have a hearing despite not appearing for scheduled conferences, but rather that when a party fails to appear, the Hearing Examiner should examine closely the circumstances to make sure that excusable neglect is present and where there is a showing of excusable neglect that the defaulting party be given the benefit of the doubt and the opportunity to be heard. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

Demonstration of excusable neglect is sufficient reason why a complaint should not be dismissed for Complainant's failure to appear at a Pre-Hearing Conference, but excusable neglect requires something more than mere inadvertence or common mistake. Difficult living circumstances that require additional efforts to keep appointments or to maintain schedules do not rise to the level required to demonstrate excusable neglect. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

In evaluating whether a default judgment should be entered in response to Respondent's nonappearance at a Pre-Hearing Conference in the Norris case, the Appeals Committee found that because Respondent was genuinely confused about the nature of the Pre-Hearing Conference and was relying on its understanding of prior communications from the Department as to its obligation to appear, that party should not be denied the opportunity to have its day in court. Circumstances in the present matter can be distinguished from those in Norris in that here, the Complainant does not rely upon any confusion about the importance of the Pre-Hearing Conference nor does she rely upon some misunderstanding of advice provided to her by Department staff. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

610 Proof of Discrimination

Complainant, a heterosexual male who wore shoulder length hair and casual clothes, failed to present a prima facie case on any of his claims for discrimination in the terms and conditions of employment on the bases of sex, sexual orientation and physical appearance, and termination on the bases of sex and sexual orientation. Mullen v. Answer Madison-TDS, MEOC Case No. 21815 (Comm. Dec. 3/13/97, Ex. Dec. 4/12/96).

Complainant claimed that she was terminated because of her age. She was sixty-two when Respondent terminated her employment. Respondent offered one nondiscriminatory explanation-poor job performance-but Respondent produced very little credible evidence supporting the explanation. For her part, Complainant established that she was never disciplined for poor performance, that management-level employees, including the company president, had made derogatory remarks about her age, weight and appearance, and that she was replaced with someone much younger. On this evidence, the Hearing Examiner found that Respondent had discriminated against Complainant. The Hearing Examiner noted that under the EOC framework, Complainant only needed to show that age partly motivated her termination. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Commission affirmed dismissal of Complainant's race and retaliation claims against Respondent at hearing when the Complainant refused to call any witness or otherwise submit any evidence in support of her discrimination claims, despite the Hearing Examiner's repeated promptings to proceed. Duff v. JC Penney Stores, MEOC Case No. 20032069 (Comm. Dec. 8/25/06).

The Complainant, an African American, walks with a pronounced limp. He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises. After hearing, the Hearing Examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability. The Hearing Examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

Complainant might still prevail even if the Respondent presents a legitimate, nondiscriminatory explanation, if he can produce evidence that demonstrates the Respondent's explanation is either not credible or represents a pretext for an otherwise discriminatory reason. In this case, Complainant in presenting his claim of discrimination based on race and gender seeks to disprove the explanation presented by the Respondent rather than assuming the responsibility to demonstrate that the Respondent has discriminated against him. Even if the Complainant can successfully demonstrate that the Respondent's explanation is not credible, that, of itself, fails to demonstrate that he the Respondent affirmatively discriminated against him. In focusing his presentation not on presenting affirmative evidence supporting his claims of discrimination, but on disproving the Respondent's explanation, Complainant has essentially skipped over the first step in the McDonnell Douglas framework, thereby denying the Hearing Examiner the opportunity to determine if a prima facie claim has been demonstrated, as well as eliminating the burden on the Respondent to demonstrate a legitimate, nondiscriminatory reason for its actions. See McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973)). Evans-Jackson v. Goodman Community Center Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (aff'd Comm. Dec. 06/17/2014; Ex. Dec. on liability: 07/03/2013).

The Respondent did not discriminate against the Complainant on the basis of his conviction record because he did not apply for employment with the Respondent. It is not possible for the Hearing Examiner to conclude that the Complainant would be a qualified applicant even if he had applied for the position because the Complainant lacked some of the necessary certifications for the position in which he was interested. Given the record as a whole, the Hearing Examiner can find no basis for the Complainant's claim that the Respondent failed or refused to hire him because of his conviction record. Equally, there is no indication in the record that the Respondent took any steps to prevent or to discourage the Complainant from pursuing an application with the Respondent. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

Reporting harassment (in this instance by nonsupervisory coworkers) or demonstrating that an employer reasonably knew or should have known is an essential element in a claim of racial harassment. One of Complainant's nonsupervisory coworkers harassed him because of his race and/or color, but Complainant has not met his burden of proof to establish that it is more likely than not that he reported nonsupervisory co-worker harassment to management. Failing to demonstrate by the greater weight of the credible evidence that either he reported the harassment to management or that management should have reasonably known of the harassment, the Complainant fails to meet his burden of proof with respect to this claim. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

A single incident involving Respondent supervisor's insensitive, hurtful, and racially biased statement to Complainant, in the context of an extensive personal history of sympathetic or friendly relations between the two and pre-dating Complainant's employment with Respondent, is insufficient to establish a pattern or practice of supervisory harassment. The ordinance does not establish a per se standard in which even a single incident can establish violation of the ordinance. Even this single incident when considered in combination with a similar but more ambiguous incident between Complainant and a second Respondent supervisor does not rise to the level of a hostile workplace that would permit the Hearing Examiner to find a persistent pattern or practice of harassing conduct. The two isolated and individual incidents do not establish illegal discrimination under the terms of the ordinance. The Complainant was not subject to harassment on the basis of his race or color by a manager of the Respondent. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

Complainant's general complaints fail to specify the actual method or manner of harassment and thus do not establish that the Complainant was subjected to a pervasive pattern or practice of patently offensive language or conduct of an explicitly racial nature stemming from the supervisors at the Complainant's workplace. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

In the case of harassment by a customer, it must be demonstrated that the employer either knew or reasonably should have known of the harassment and failed to take reasonable steps to eliminate the conduct. The Hearing Examiner finds that there is insufficient support in the record to conclude that the Complainant complained to Respondent management about discriminatory language or treatment at the hands of customers, leading Hearing Examiner to conclude that Complainant may have been harassed by customers of the Respondent because of his race or color, but he failed to report those incidents. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

An unsubstantiated employee comment that a Respondent manager was "partial to girls" constituted the direct evidence for Complainant's sex discrimination contention. Had the elder manager in question truly been "partial to girls," one would expect a higher representation of females in the Respondent's workforce, which in fact included only one female driver.

The Hearing Examiner concludes that the Complainant's proffered direct evidence is not sufficient to meet his burden of proof to demonstrate a prima facie claim of discrimination based upon the Complainant's sex. Wales v. Affiliated Carriage Systems Inc., MEOC Case No. 20122017 (Ex. Dec. 07/11/2016).

The Complainant states that during the Complainant's layoff a supervisor indicated that the Complainant either was old or was getting to the point in life where perhaps he wanted to slow down. The hire of a younger male during the period of the Complainant's layoff creates an inference that the Complainant's age played some role in either his layoff or his continued layoff after the hire. This inference is sufficiently strong to warrant a finding that the Complainant has made out a prima facie claim of age discrimination.

The Respondent in order to overcome the Complainant's initial demonstration of a prima facie claim must set forth one or more legitimate, nondiscriminatory reasons for its taking the allegedly discriminatory action. Given the economics of the trucking business, and Complainant's rudeness, use of profanity, and frequent unavailability, the Respondent's decision to allow a woman, and eventually, a younger man, to operate trucks while keeping the Complainant as a reserve driver represents a legitimate, nondiscriminatory explanation for its actions.

The Complainant can overcome the Respondent's proffer by presenting evidence to show that the explanation presented by the Respondent is either not credible or represents a pretext for an otherwise discriminatory motive. The Hearing Examiner cannot find that the Complainant has carried his burden to show a lack of credibility on the part of the Respondent or that the proffered reason of the Respondent represents a pretext for an otherwise discriminatory explanation. Wales v. Affiliated Carriage Systems Inc., MEOC Case No. 20122017 (Ex. Dec. 07/11/2016).

Complainant, who remained employed by Respondent, maintained that he was laid off for approximately 6 weeks at least in part because of his age and/or gender in violation of the Ordinance, while Respondent continued to give driving assignments to younger drivers or a woman driver. Respondent asserted that the temporary layoff resulted from truck availability issues, the Complainant's availability, and Complainant's demeanor.

An unsubstantiated comment about [being partial to] "girls" that if uttered may have been a joke, together with the fact that the other truck drivers at Respondent were overwhelmingly male, leads the Hearing Examiner to conclude that the Complainant has failed to meet his burden of proof to demonstrate a prima facie claim of discrimination based upon the Complainant's sex. Wales v. Affiliated Carriage Systems Inc., MEOC Case No. 20122017 (Ex. Dec. 07/11/2016).

611 Direct Evidence of Discrimination

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).

Statements offered as direct evidence of discriminatory intent must illustrate discriminatory bias beyond the need for inference. A Complainant was not discriminated against in her transfer when a co-worker used language that could not be deemed discriminatory without presumptions. Peterson v. Madison Metropolitan School District, MEOC Case No. 22728 (Ex. Dec. 11/16/01).

612 Proof of Intent Utilizing the McDonnell-Douglas v. Green Framework

In the case of a claim presented by indirect evidence, the Hearing Examiner will apply the McDonnell Douglas/Burdine burden shifting approach to determine whether discrimination has occurred. See McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

612.1 General Considerations

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that 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), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp.Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97) Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

Complainant alleges that unfair treatment during his work tenure, and his eventual termination, was due to race and sex discrimination on the part of supervisory staff. The Hearing Examiner found that Complainant's employment was terminated because his attitude and actions caused his supervisors and coworkers, both African American and white, male and female, to no longer be able to work with the Complainant. The Complainant's inability to work with others or to work towards resolution of outstanding issues required his termination. Neither the Complainant's sex nor his race or color were motivating factors in his termination. Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (aff'd Comm. Dec. 06/17/2014; Ex. Dec. on liability: 07/03/2013).

The Complainant having charged Respondent with denying her housing on the basis of familial status in violation of the Madison Equal Opportunities Ordinance Sec. 39.03(4), Respondent filed a Motion to Dismiss the complaint for failure to state a claim upon which relief could be granted, asserting that he was prohibited from renting to a family of four a unit with a square footage well under the minimum prescribed by M.G.O. Sec. 27.06(2)(b)(1).

When addressing a Motion for Failure to State a Claim upon which relief can be granted, the Hearing Examiner must look at the available facts in the light most favorable to the nonmoving party, the Complainant. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

In the Equal Opportunities Division (EOD) process, once a prima facie case has been made by the Complainant, and the Respondent has stated a legitimate, nondiscriminatory explanation for its action, the Investigator/Conciliator looks to see if there are facts or evidence that would lead a reasonable person to doubt the credibility of the Respondent's explanation or to find that the proffered explanation is a pretext for an otherwise discriminatory explanation. The Respondent seeks to short-circuit this analysis by pointing to the requirements of the Madison Building Code.

While the Hearing Examiner understands that the application of the Building Code provisions may well preclude certain types of relief or damages, he does not believe that the provisions necessarily create a bar to investigation of this complaint. The complaint was remanded for investigation. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

A Black, African-American Complainant claimed that he was discriminated against on the basis of his national origin/ancestry when he was subject to reduced hours and then laid off from his job in a restaurant where the other kitchen workers were predominantly of West African ancestry. Where a decision to terminate an employee is made by the same official who made the decision to hire an individual and a relatively short period of time has elapsed between hiring and firing, there is an inference that the firing was not done for a discriminatory motive because if the decision maker were going to discriminate against the employee, it would be easier for the decision maker not to hire the individual in the first place, than to hire him and turn around and fire him a short time later. Randall v. Africana Restaurant & Lounge, MEOC Case No. 20082190 (Ex. Dec. 06/16/2016)

Using the prima facie formulation has varied over the years, especially in relationship to the particular claim being made, however it is not believed that the adopters of the ordinance intended to eliminate the need to demonstrate a causal link between a protected class and the adverse action experienced. The intention to discriminate may be implicit or explicit, but requires something more than a mere difference in one’s status within or without a protected class. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

612.2 Complainant's Prima Facie Case

In the absence of proof of a significant disparity in the hiring of blacks and whites by the Respondent, Complainant failed to prove any pattern of discrimination by Respondent. Rose v. Kippcast, MEOC Case No. 20851 (Ex. Dec. 9/29/89).

Complainant, a lesbian, alleged that because of her sexual orientation the Respondent terminated her employment earlier than expected and failed or refused to hire her, despite the fact she believed she was qualified. Respondent moved to dismiss because Respondent claimed the alleged acts of discrimination occurred outside of the 300 day statute of limitations.

The Hearing Examiner granted and denied the motion in part. The Hearing Examiner ruled that the alleged acts of discrimination relating to actions occurring before the Respondent had knowledge of the Complainant's sexual orientation were barred because knowledge of the protected class is an essential element of Complainant's prima facie case. The Hearing Examiner permitted claims arising after Respondent's knowledge of Complainant's sexual orientation that were outside of the 300 day limit to proceed, because Complainant successfully alleged a continuing course of conduct on part of the Respondent. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec.11/11/97, on motion to dismiss 2/19/96).

The Complainant (black/African-American) alleged that the Respondent suspended him and later terminated his employment on account of his race and color. The Hearing Examiner concluded that the Complainant failed to establish a nexus between his membership in a protected class and the adverse actions he suffered. In this regard, the Complainant primarily argued that, in the year following his termination, the Respondent hired a number of individuals outside of his protected class. The Hearing Examiner held that this fact, without more, cannot result in a finding that the Respondent's actions towards the Complainant were racially motivated. Rather, at most, the record supports finding that the Respondent's actions were symptomatic of a lapse in business judgment. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11, 2nd Ex. Dec. 11/30/11, Comm. Dec. 05/23/12).

Complainant asserted that she was discriminated against in employment on the basis of her race (Hmong/Asian) when her employment was terminated because of the Respondent's perception of a high-level threat of workplace violence stemming from the Complainant's divorce. The Complainant contended that this perception came from her Hmong heritage and that of her ex-husband, and the Hmong people's experience during the Viet Nam War.

The record adequately demonstrates the first two elements of the general prima facie claim: that the Complainant is a member of the protected class "race," and that her termination from employment was an adverse employment action.

Rather than offering the third element of a prima facie claim by demonstrating a causal link between the Complainant's race and her termination, the Complainant attacked the reasons propounded by the Respondent for its decision to terminate the Complainant. Complainant thus fell short in meeting her burden of proof on one of the critical elements of her claim.

While the Hearing Examiner believes that the Respondent's actions were heartless and represented a somewhat paranoid view of the world and the risk and possible expense that retaining the Complainant might represent, the Hearing Examiner cannot conclude that the Respondent's stated reason was incredible or a pretext for discrimination. Yang v. American Family Insur. Group, MEOC Case No. 20112016 (Ex. Dec. on liability: 01/19/2017).

The Hearing Examiner agrees with the arguments and testimony presented that the Respondent overreacted to the Complainant's situation and circumstance and treated her unfairly, but the evidence does not support a conclusion that this treatment was a result of the Complainant's race. Yang v. American Family Insur. Group, MEOC Case No. 20112016 (Ex. Dec. on liability: 01/19/2017).

The Complainant charged that the Respondent had discriminated against him on the basis of his conviction record when it failed or refused to hire him for a sales position.

The set of facts from the hearing on the merits in this case established that the Complainant was a member of the protected class "conviction record," that he experienced an adverse employment action, and that there was a causal connection between his membership in the protected class and the adverse employment action. This was sufficient to establish a prima facie claim of discrimination.

There was no doubt that the Complainant had an extensive conviction record, and that he was not hired for a position for which he appears to have been qualified. Finally, the record was clear that the reason for the Respondent's rejection of the Complainant was his conviction record.

The Respondent might have contested the above showing by either demonstrating that the Complainant's conviction record was sufficiently related to the nature of his employment that it would have been unreasonable for the Respondent to have hired the Complainant, or that it acted not because of the Complainant's conviction record, but because of the nature of the conduct that resulted in the Complainant's conviction record. However, the Respondent did not appear at the hearing and the Hearing Examiner is not able to speculate as to the basis of the Respondent's actions absent the testimony of witnesses presented by the Respondent.

The Respondent violated the Ordinance’s prohibition against discriminating against the Complainant in employment because of his conviction record. 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).

On the Respondent's side, the testimony of three current owners/employees of the Respondent might be called into question in the same way as the Complainant's, as their testimony would be expected to favor the position of the Respondent as they have a vested interest in the outcome. Despite this anticipated slant to their testimony, the Hearing Examiner found them to be generally credible and without particularly colored testimony.

The testimony of two former employees was of particular interest. Since they were not current employees of the Respondent and had no apparent interest in the outcome of the complaint, their testimony was generally given fairly high credibility. The Complainant did not demonstrate any continuing connection or interest in the outcome of the complaint or a continuing economic interest in the well-being of the Respondent on the part of either former employee.

While the Complainant's testimony was consistent and credible, his testimony was shaded in precisely the manner one would expect of someone testifying to support their own testimony. Ultimately, the Complainant must demonstrate by the greater weight of the credible evidence that the Respondent was motivated, at least in part, by his age and/or his sex when it decided to lay him off.

The Hearing Examiner cannot find that the Complainant has carried his burden to show a lack of credibility on the part of the Respondent or that the proffered reason of the Respondent represents a pretext for an otherwise discriminatory explanation. Wales v. Affiliated Carriage Systems Inc., MEOC Case No. 20122017 (Ex. Dec. 07/11/2016).

Complainant contends that her being required to read the Respondent’s report responding to whistleblower and MEOC Complaints, and to sign a confidentiality agreement was an adverse action. The actual reading and possession of the information contained in the report did not adversely affect the Complainant or her employment with the Respondent, and the confidentiality agreement she was being asked to sign would have been moot the day after she signed it when the document(s) it referred to were filed with the MEOC and became public record. Therefore, this too could not be reasonably believed to have been an adverse action. Kennen v. Coalition of Wisconsin Aging Groups, Inc., MEOD Case No. 20122042/EEOC Case No. 26B201200034.

Complainant establishes a prima facie case of discrimination on the basis of age from an employer’s history of hires, statement that he likes to hire younger, recent college graduates, the most recent hire’s age, and testimony about the Respondent seeking a younger, more energetic work force. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

Complainant’s lateral transfer to work at a different location for the Respondent does not represent an adverse action. Even if it had, the Complainant failed to demonstrate a causal connection between her protected classes and the transfer. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

Complainant’s being asked to fill in for other employees was not an adverse action as it was required that the Respondent to maintain certain staffing levels as required to maintain their child care license. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

In her initial brief, the Complainant suggests a slightly different formulation of the prima facie claim for her age discrimination claim, that 1) the Complainant is a member of a protected class, 2) she applied for, and was qualified for, an open position, 3) she was rejected, and 4) the employer filled the position with a person not in the Complainant’s protected class or that the position remained open. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

One way to establish the causal connection of the Respondent’s failure to hire to the Complainant’s membership in a protected class is to examine whether the candidate hired was someone less qualified, someone not within the protected class, or that the employer treated a similarly situated candidate not in the protected class more favorably. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

612.3 Respondent's Burden to Articulate Legitimate, Non-Discriminatory Reason

An employer need only articulate reasons why its regulation of employees' physical appearance meets the exception specified in the Ordinance for "reasonable business purpose"; the employee must then prove that those reasons are invalid. State ex rel. McDonald's Restaurant v. MEOC (Karaffa), supra; also, City of Madison v. Rennebohm's Drug Store (Marks), CV179P319 (Dane County Cir. Ct., 7/19/77).

The Hearing Examiner concluded that the Complainant's (a Black Dominican) demotion and the requirement that he produce a doctor's excuse for his absence were not predicated on either his race or national origin/ancestry but were reasonable and non-discriminatory exercises of management authority. The Hearing Examiner found that he was without jurisdiction to consider Complainant's claim regarding termination because the Complainant had not timely appealed a finding of no probable cause with respect to this allegation. De Leon v. Woodman's Food Market - West, MEOC Case No. 22080 (Ex. Dec. 6/11/97).

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of her sexual orientation (lesbian) in failing to extend her limited term employment or to hire her for several positions on either the adult or children's psychiatric units. The Hearing Examiner was persuaded by the Respondent's explanation that other employees and applicants were more qualified that the Complainant for these positions. The Complainant also contended that her LTE position had been prematurely terminated. The Hearing Examiner found that her position had expired and that she had not lost any shifts to which she may have otherwise been entitled. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec.11/11/97, on motion to dismiss 2/19/96).

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).

The Respondent's stated reason for not continuing the application process, that the Complainant failed to produce required professional documentation, is a legitimate, nondiscriminatory explanation for not continuing the application process. The Complainant fails to point to evidence or facts that are sufficient to rebut the Respondent's nondiscriminatory explanation for its decision to terminate the Complainant's application. The Complainant admittedly had not submitted much of the material required by the Respondent as part of the application process. There is no assertion that the material required by the Respondent was discriminatory or that the requirement to provide the information was either discriminatory or was discriminatorily applied. Complainant failed to demonstrate by a preponderance of the evidence a prima facie case that he was discriminated against in employment based on race. Had the Complainant initially made a prima facie case of discrimination, this failure to carry his burden of proof at this stage would result in a finding of no discrimination as well. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

A Black, African-American Complainant claimed that he was discriminated against on the basis of his national origin/ancestry when he was subject to reduced hours and then laid off from his job at a restaurant where the other kitchen workers were predominantly of West African ancestry. A lack of business and hence income represents a legitimate, nondiscriminatory explanation for reducing staff and cutting hours including those of the Complainant. Presentation of this explanation meets the Respondent’s burden of production and shifts the burden back to the Complainant. On this record, the Hearing Examiner must conclude that the Complainant has failed to meet his burden to establish either that the Respondent’s explanation is not credible or represents a pretext for an otherwise discriminatory motive. Randall v. Africana Restaurant & Lounge, MEOC Case No. 20082190 (Ex. Dec. 06/16/2016)

Complainant, an experienced bartender, claimed that Respondent violated the Equal Opportunities Ordinance 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.

After the Hearing Examiner found that it is clear that the Complainant exercised a right protected by the Ordinance, that she experienced an adverse action (her termination) and that the Complainant's termination was causally linked with her complaints about her harassment, what was at question was whether the Respondent had a legitimate, non-retaliatory reason to terminate the Complainant.

The Hearing Examiner finds that the Respondent's position that its manager terminated the Complainant because the Complainant was insubordinate to her on a single phone call, and alternate claims that the Complainant was terminated due to irregularities on her time cards or in her closing procedures, to be not credible. Rather, they constitute a pretext, part of Respondent's plan to disguise its real retaliatory reasons for terminating the Complainant. Bedford v. The Farm Tavern, MEOC Case No. 20132017 (Ex. Dec. 08/15/2016).

Despite the fact that the Complainant was the only employee, due to her support of a former coworker, to oppose the Respondent’s required reading of a position statement on a claim of discrimination filed by that former coworker, the requirement was made of all employees, regardless of their support or lack of support for the former coworker. The Respondent’s desire to provide all employees with the same information and present a unified response to the public is a legitimate, nondiscriminatory reason. The “all employee” requirement is enough to overcome the argument that it was intended as retaliation against the Complainant. Kennen v. Coalition of Wisconsin Aging Groups, Inc., MEOD Case No. 20122042/EEOC Case No. 26B201200034.

Complainant, along with seven other employees, filed an internal complaint with the Board of Directors. A month later, the Complainant arrived for work, and the locks to the office suite had been changed and additional locks placed. The Respondent proffered reason that the locks were changes following the resignation of three attorneys, and the Respondent’s concern that files would be taken, represented a legitimate, non-retaliatory action. Kennen v. Coalition of Wisconsin Aging Groups, Inc., MEOD Case No. 20122042/EEOC Case No. 26B201200034.

Complainant’s conviction for possession of child pornography was substantially related to his potential employment as a Service Meat Clerk in a grocery store. Complainant could reasonably expect to be in unsupervised contact with minors against the restrictions of his probation. The Respondent is not required to guess at whether the Complainant would be in violation of his probation restrictions, but rather, have a good faith belief that his job duties might require him to violate his restrictions. Wollschlager v. Hy Vee, MEOD Case No. 20142022.

The Respondent’s decision to suspend the Complainant pending the outcome of charges involving the possession of child pornography was non-discriminatory. Respondent was rightfully concerned that the Complainant’s lack of supervision, presence of minors in the store, and access to computers and the internet could create a risk of the Complainant’s downloading or observing child pornography or committing a crime of sexual contact while on the Respondent’s premises. Despite the fact that the charges against the Complainant were for non-contact offenses, the fact that the circumstances present the opportunity for an individual predisposed to commit such acts is sufficient to establish a substantial relationship. Schrankler v. Best Buy Stores, L.P., MEOD Case No. 20122001.

An in-depth analysis of the circumstances of a crime and analysis of the Complainant and his circumstances are not required to make a rational determination as to substantial relationship, however, it would be helpful for the employer to engage in some meaningful analysis of the crime and traits revealed by the crime in determining how to handle the employee’s situation. Schrankler v. Best Buy Stores, L.P., MEOD Case No. 20122001.

Complainant’s layoff was not discriminatory despite her seniority and a Layoff Policy as outlined in the Respondent’s Employee Handbook. Respondent’s budgetary reasons for laying off the Complainant as opposed to the two employees that absorbed her job duties was a legitimate business reason for the layoff. Syverud v. Journey Mental Health Center, MEOD Case No. 20142170/EEOC Case No. 26B201500005.

Discussions about the Respondent’s concern that the Complainant would engage in similar activity that led to a conviction for sexual intercourse with a child age 16 but not 18 showed that their decision not to hire the Complainant was motivated, in part, by his conviction record. However, the Ordinance provides an affirmative defense if the circumstances of the conviction substantially relate to the particular job or licensed activity and the conviction or placement on probation or parole occurred within the past three years. The Ordinance does not require that the Respondent establish the probability of future criminal activity. Obriecht v. Woodmans, MEOD Case No. 20172014.

Allegations of failure or refusal to hire or promote during employment because of race, color, sex or age are rebutted by the legitimate business reason that a candidate’s experience working with the Respondent and specific supervisory experience in a child care setting are at least as important, if not more so, than a candidates educational background. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

Respondent’s offering of a Professional Development Plan to the Complainant as a mechanism to advance within the Respondent’s organization does not constitute an adverse action. The Professional Development Plan was offered as a means to advance within the Respondent’s organization and was not required of the Complainant. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.

612.4 Complainant's Proof of Pretext

Complainant charged that she was terminated by Respondent because of her race. The Hearing Examiner dismissed the charge when Complainant failed to rebut Respondent's evidence that the termination was due to Complainant's insubordination and disruptive behavior at the work place. The Hearing Examiner concluded that Respondent's reasons for terminating the Complainant were legitimate and non-discriminatory bases for termination. Hardin v. Swiss Colony, Inc., MEOC Case No. 2323 (Ex. Dec. 10/13/77).

The Hearing Examiner determined that Complainant, a female, was discriminated against based on her sex when she did not receive a promotional position as a supervisor for security and parking, and a male who was less qualified was promoted instead. Respondent's reasons for failing to promote Complainant were found to be a pretext because Complainant had more work and job related experience than the male who received the promotion.

The Hearing Examiner also ruled that if the Complainant and the male who received the promotion were viewed as equally qualified, the seniority rule would still cause the Complainant to receive the promotion because Complainant had been at the job longer than the male who received the promotion. Dayton v. Madison Gen. Hospital, MEOC Case No. 2535 (Comm. Dec. 3/5/81, Ex. Dec. 10/17/80).

When a Respondent employer claims a Complainant suffered an adverse action when a job requirement was not met, but had already postponed or waived that requirement to allow the Complainant to work, that claim is pretextual. Teich v. Center for Prevention and Intervention, MEOC Case No. 20002153 (Ex. Dec. 6/12/02, On Fees 8/5/02).

The retroactive manipulation of written records concerning items at the heart of a litigation is a strong indicator of a Respondent's pretext. A Respondent amended its minutes in order to remove language that would expose it to liability. Teich v. Center for Prevention and Intervention, MEOC Case No. 20002153 (Ex. Dec. 6/12/02, On Fees 8/5/02).

A Black, African-American Complainant claimed that he was discriminated against on the basis of his national origin/ancestry when he was subject to reduced hours and then laid off from his job at a restaurant where the other kitchen workers were predominantly of West African ancestry. A lack of business and hence income represents a legitimate, nondiscriminatory explanation for reducing staff and cutting hours including those of the Complainant. Presentation of this explanation meets the Respondent’s burden of production and shifts the burden back to the Complainant. On this record, the Hearing Examiner must conclude that the Complainant has failed to meet his burden to establish either that the Respondent’s explanation is not credible or represents a pretext for an otherwise discriminatory motive. Randall v. Africana Restaurant & Lounge, MEOC Case No. 20082190 (Ex. Dec. 06/16/2016).

Due to a glitch in a computer system accepting applications for open positions, the Complainant’s application was not timely submitted, and another candidate, being the only one to have timely submitted an application, was hired. The Respondent’s hiring of that candidate on the belief that they were the only one to have applied, represented a legitimate, non-discriminatory reason to have not hired the Complainant. The Complainant failed to demonstrate that the explanation was not credible or represented pretext for discriminatory intent. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

The Complainant’s prima facie claim of discrimination on the basis of sex stands despite the Respondent’s legitimate, non-discriminatory reason of selecting the male candidate, based on his project management qualifications and demonstration of initiative, over the Complainant (a female) because the male candidates qualifications were not so great as the Complainant’s in the core mission of the job at issue. Testimony showed that the Respondent had already decided to hire the male candidate and would not consider the Complainant (female) despite knowing she would be interested in the position. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

The Respondent’s proffered reasons for selecting the successful candidate over the Complainant lack credibility. A reasonable person would conclude that the Complainant represented the superior candidate for the available position. The Hearing Examiner does not understand how or why the interviewers came to the conclusion that the Complainant was not the superior candidate when compared with the successful candidate, suggesting that they are not to be believed and are obscuring a less acceptable motive. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

The Complainant’s failure to supply a discriminatory motive or additional facts to establish such a motive is not required for the final step in the burden shifting approach. It is sufficient to show a lack of credibility to overcome Respondent’s proffered explanation. The Respondent’s efforts to portray the Complainant as “not a good fit” or that her interviews were so lacking in merit as to warrant her exclusion from the hiring pool, lack veracity or confirmation in the record. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

612.5 Complainant's Ultimate Burden of Proof

Though Respondent failed to appear, Complainant's claim based on race was dismissed because the Complainant presented no evidence showing he was treated differently from other employees not of his race. The Hearing Examiner found Respondent did discriminate against the Complainant on the basis of previous conviction record and age. Brooks v. I.S.S. and Ed Hasmer, MEOC Case No. 21535 (Ex. Dec. 5/13/93).

Complainant alleged he was discriminated against in the terms and conditions of his employment because of his sex (male), sexual orientation (heterosexual male) and physical appearance (he wore a shoulder length ponytail and casual clothing) in that he was given a different job position while his supervisory duties and his authority to make personnel decisions were eliminated. Complainant also alleged that he was terminated because of his sex, sexual orientation, and physical appearance.

The Hearing Examiner ruled that it is encumbent for a Complainant to establish by a preponderance of the evidence the substance of his/her claims and that the failure to do so precludes the establishment of a prima facie case. Here, the Complainant did not establish a prima facie case on any of his allegations of discrimination; in the alternative, even if alleged, the Respondent's actions in changing his job title and duties, and in terminating him were not pretextual but were justified by legitimate nondiscriminatory business reasons. Mullen v. Answer Madison-TDS, MEOC Case No. 21815 (Comm. Dec. 3/13/97, Ex. Dec. 4/12/96).

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).

During the investigative phase of a complaint, the Complainant is entitled to an inference of credibility in that factual disputes must be resolved in favor of the Complainant. However, at the hearing stage, the Complainant must demonstrate that her testimony is to be believed over that of the Respondent by a preponderance of the evidence. Failing that, the complaint will be dismissed. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

A Black, African-American Complainant claimed that he was discriminated against on the basis of his national origin/ancestry when he was subject to reduced hours and then laid off from his job at a restaurant where the other kitchen workers were predominantly of West African ancestry. A lack of business and hence income represents a legitimate, nondiscriminatory explanation for reducing staff and cutting hours including those of the Complainant. Presentation of this explanation meets the Respondent’s burden of production and shifts the burden back to the Complainant. On this record, the Hearing Examiner must conclude that the Complainant has failed to meet his burden to establish either that the Respondent’s explanation is not credible or represents a pretext for an otherwise discriminatory motive. Randall v. Africana Restaurant & Lounge, MEOC Case No. 20082190 (Ex. Dec. 06/16/2016).

A Black, African-American Complainant approximately 45 years of age claimed she was discriminated against on the basis of her race, color, and age when she was terminated by Respondent. It is the Complainant's burden to establish discrimination by the greater weight of the credible evidence. Given the differences in testimony and without compelling evidence to support either side's version, the Hearing Examiner must conclude that the Complainant has failed to meet her burden of proof to show a causal connection between her membership in her protected classes and her termination. Johnson v. Hy-Vee, MEOC Case No. 20142051 (Ex. Dec. 06/15/2016).

613 Burden of Proof in Mixed Motive Cases

The Respondent was found to have discriminated against the Complainant, a black male, on the basis of race in regard to employment termination. It was proven that the Respondent treated Complainant differently with respect to discipline. Complainant was awarded back pay, front pay, prejudgment interest, and reasonable costs and attorney's fees. On appeal, the Commission upheld the Examiner's ruling. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. The Court found that the Commission's use of the "in part" test for determining discrimination was appropriate. The Court of Appeals affirmed the judgment below stating that it need not determine whether the substantial evidence test or the "in part" test was appropriate because the level of proof of discrimination was sufficient under either test. The Court of Appeals remanded the complaint to the Commission for further determination of damages. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

In the present matter, the initial question really comes down to, "Did the Respondent deny the housing to the Complainant because of her familial status or because of the application of the Occupancy Code?" The Equal Opportunities Ordinance in its housing provision clearly contemplates an inquiry into the intent of the Respondent at the time when the decision to refuse housing was made. See Sec. 39.03(4)(a). The complaint was remanded for investigation. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

Adopting the position urged by the Respondent could result in a landlord's discriminatory decision being protected due to the application of the zoning laws. This would be contrary to the intent of the Ordinance to prevent discriminatory action by removing discriminatory animus from the decision-making process. The motion to dismiss was denied and the complaint remanded for investigation. Walters v. Schmudlach, MEOC Case No. 20131144 (Ex. Dec. on mot. to show cause: 10/28/2014; Ex. Dec. on jurisdict.: 03/03/2014).

614 Complainant's Burden of Proof on Damages

The Complainant must prove damages resulting from discrimination by a preponderance of the evidence. Such damages may include monetary amounts for back pay, front pay, and emotional distress. The Complainant also has the burden to set forth credible evidence of efforts made to mitigate damages caused by a discriminatory act. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

In a claim of housing discrimination, the Complainant is entitled to a hearing on damages when Respondent stipulates to violating the ordinance by considering Complainant's conviction record in denying housing to Complaint. Terry v. YWCA Madison, MEOC Case No. 20051011 (Ex. Dec. 10/08/07; Ex. Dec. Costs & Fees 1/4/08; Comm. Dec. Final Order 9/19/08). See Commission Decision and Final Order in Terry, No. 20051011, wherein Commission ordered Respondent to pay Complainant $93.00 in costs pursuant to stipulation between parties, but agreed with Hearing Examiner's determination that no legal fees are appropriate based on Complainant's unsubstantiated claim for same and pro se status. (Comm. Dec. 9/19/08; Ex. Dec. Costs and Fees 1/4/08).

The record was sufficient to establish liability on the part of the Respondent for a claim of discrimination in employment on the basis of the Complainant's conviction record. Having established liability, the Hearing Examiner turned to the question of damages.

It is the Complainant's burden to demonstrate both the entitlement to damages as well as the appropriate amount of those damages. Customarily, one would calculate economic losses by multiplying the hourly or other periodic payment by the number of hours worked in a set period and then multiplied by the length of time for which the Complainant was unemployed or underemployed. However, there is no information on the record to indicate for how long the Complainant was without comparable employment or for how long he might have stayed employed by the Respondent.

It is the Complainant's burden to establish the period for which he might be due back wages. In this regard, the Complainant has failed.

The Complainant also has an obligation to attempt to mitigate his damages by seeking alternative employment, but the record is devoid of any information concerning the Complainant's efforts in this respect. While the Hearing Examiner makes no finding regarding the Complainant's efforts to mitigate his damages, it is another factor that keeps the Hearing Examiner from making an award for back pay.

Ultimately, the Hearing Examiner decided that it was outside of his authority to replace facts with speculation and accordingly, the Hearing Examiner declines to make any award of back wages. 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).

620 Proof of Disparate Impact

620.1 General Considerations

The Hearing Examiner held that the statistical evidence did not establish that the Respondent's policy of not hiring relatives or close friends of persons who were employed by Respondent's competitors had a disparate impact on a protected group where the Complainant alleged he had been discriminated against on the basis of his marital status. Gustafson v. WPS, MEOC Case No. 20539 (Ex. Dec. 5/19/87).

Just because an initial slate of job candidates were all women does not automatically rebut the claim that the Complainant was separately subjected to discrimination on the basis of sex. The Courts are not swayed by favorable treatment to a class of individuals when there is disparate treatment to an individual in that class. The Ordinance cannot be read in a contrary manner. Plummer v. CUNA Mutual Group, MEOD Case Nos. 20092108, 20102067/EEOC Case Nos. 26B200900051, 26B201000034.

Respondent argues that its place of business is outside the jurisdiction of the MEOC as despite the fact that its mailing address is listed as Madison, it is located in the Town of Blooming Grove. Neither party provided definitive proofs during the briefing period, necessitating a hearing. During the hearing the Respondent reasserted it was located in the Town of Blooming Grove, and the Complainant reasserted his position that the Respondent was in the MEOC’s jurisdiction because of its mailing address. The Hearing Examiner was able to determine the Respondent’s business is wholly located within the Town of Blooming Grove by a document obtained from the Access Dane website used by the Department of Civil Rights to determine jurisdiction. Bagneski v. America's Best Value Inn, MEOD Case No. 20203062.

Respondent argues that the Complainant is not a similarly situated employee to the rest of the staff for the purpose of determining disparate treatment because she was the only full time employee. The Hearing Examiner finds that the terms and conditions of employment for full and part time employees were substantially similar, save for the expected number of hours worked. Franklin v. AJ Prestige, LLC, MEOD Case No. 20152133.

620.2 Complainant's Burden to Show Adverse Impact

620.21 Complainant's Prima Facie Case

620.22 Extent of Disparity

620.23 Adequacy of Sample Size

620.3 Respondent's Burden to Show Job-Relatedness

This case requires an interpretation of where facial jewelry falls within the definition of physical appearance and what may qualify as a reasonable business purpose. Eyebrow piercing/facial jewelry is part of physical appearance, and discrimination on the basis of physical appearance is against the Madison Equal Opportunity Ordinance (MEOO). Preservation of a conservative business image does not constitute a "reasonable business purpose" under the MEOO. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

Conditioning employment based on characteristics of physical appearance in accordance with what an employer believes consumers will find more pleasing will not be met kindly. Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982). In Gerdom, a female flight attendant was discharged for surpassing the weight limit prescribed by Continental. Continental’s sole proffered business purpose was justified based on perceived consumer preferences for thin, attractive females. According to Gerdom, "passengers' preference for attendants who conform to a traditional image should not enter into employment policies." A general retailer such as Sam's Club who caters to consumers who condition patronage on prejudices and bias towards certain physical appearances is catering to the lowest common denominator, infringing on employees’s rights, and violating the Madison Equal Opportunity Ordinance (MEOO). Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

Respondent maintains promoting their conservative image constitutes a reasonable business purpose. Respondent brought expert testimony explaining what constitutes a conservative business image and how facial jewelry is in conflict with that image. For a general-public retailer to justify a business purpose based on perceived consumer prejudices or values is to defy the nature of the ordinance. The ordinance is designed to protect employees from prejudice based on qualities unrelated to job performance while simultaneously allowing employers to maintain appropriate standards in areas like safety and health.

Reasonable business purposes may be tied to considerations of health or safety. State ex rel. McDonald’s v. Madison Equal Opportunity Comm., 120 Wis. 2d 677, 356 N.W.2d 495 (Ct. App. 1984) (unpublished). The business purpose of conservative image cannot be considered as promoting health or safety concerns. In the Hearing Examiner’s opinion, the articulated business purpose of a conservative image does not form a reasonable business purpose for the purposes of the Ordinance. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

Complainant terminated for wearing facial jewelry (eyebrow ring) in contravention of Sam's Club policy did not offer witnesses to attempt to disprove Respondent's articulated reasonable business purpose. But because Respondent's articulated purpose—promoting a conservative image—falls short of what the ordinance demands, Complainant's failure to disprove the articulated purpose does not defeat her claim. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

The Complainant charged that the Respondent had discriminated against him on the basis of his conviction record when it failed or refused to hire him for a sales position.

620.4 Complainant's Burden to Demonstrate Availability of Alternatives with Less Adverse Impact

620.5 Cases

620.9 Miscellaneous

630 Probable Cause

630.1 Definition of Probable Cause

630.2 Complainant's Burden of Proof

The Commission dismissed the Complainant's appeal of the Hearing Examiner's affirmance of the initial determination's conclusion that there was no probable cause to believe that he had been discriminated against by the Respondent, finding that the Respondent's use of an arguably insufficient notice of termination did not demonstrate that it had discriminated against the Complainant since it used the same notice in terminating tenants not of the Complainant's race. In general, the Complainant failed to provide information sufficient to support his claim that his race was a factor in his treatment by the Respondent. Settle v. Harbor Residential Services, Inc., MEOC Case No. 1633 (Comm. Dec. 1/3/96).

In upholding the Hearing Examiner's decision that Respondents had discriminated against Complainants on the basis of race but not on their lawful source of income, the Commission ruled that the elements of a prima facie housing case are flexible and must reflect the actual allegations of the complaint. To be locked into a single statement of the definition of a prima facie case would ignore the broad variety of claims that encompass the field of housing discrimination. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 1/23/96).

Lateral transfer within an organization, while keeping the same job duties and pay, is not an adverse employment action. A Complainant was not discriminated against when she was transferred from one school to a different school, with no substantial change in the terms of her employment. Peterson v. Madison Metropolitan School District, MEOC Case No. 22728 (Ex. Dec. 11/16/01).

African American (Black) male Complainant alleges that Respondent discriminated against him on the basis of race by failing to hire Complainant for a Mortgage Loan Officer (MLO) position, or at least, determining not to continue the application process. The first two elements of a prima facie case having been demonstrated, the question for the Hearing Examiner is to determine whether there are facts or evidence demonstrating that there is a causal connection between the Complainant's race and the fact that the Respondent did not hire him as a MLO. It is the Complainant's burden to establish by the greater weight of the credible evidence that his version of events is the correct one.

When Complainant not only failed to provide Respondent with material clearly delineated as required for application for the MLO position, but made it clear that he would not be able to do so, the Respondent terminated his application. The Hearing Examiner finds that nothing in the record demonstrates any presence of a concern for race prior to the Complainant's first mention of it. The record is clear that the Respondent has never hired an MLO without having all the required materials in hand, and the Respondent requires the same professional documentation of all applicants for MLO positions regardless of race. Complainant makes no assertion that the material required by the Respondent was discriminatory or that the requirement to provide the information was either discriminatory or was discriminatorily applied. The Complainant has not presented sufficient evidence to demonstrate a prima facie claim of discrimination on the basis of race. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

Judging credibility is more of an art than a science. It relies upon observations of conduct, attention to nuance in speech and use of language, consideration of the weight of evidence and the detail with which it is given as well as many other intangible factors. A finding that witnesses on opposite sides of an issue both appear credible is not impossible, but will represent a failure of one's burden of proof. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

At the time of the Complainant's termination, Respondent employed at least one other African American in the position of Delivery Driver. While the Hearing Examiner does find the Respondent's failure to document its termination decision troubling, the Hearing Examiner concludes that the Complainant fails to present sufficient evidence for the Hearing Examiner to conclude that his race or color was a motivating factor in the Respondent's decision to terminate Complainant. Complainant has failed to carry his burden of proof as to either the existence of a causal connection between his race or color and his termination, or that if such a causal connection has been made that the Respondent's explanation is pretextual. The Hearing Examiner concludes that the Complainant's termination was not motivated by his race or color. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (aff'd Comm. Dec. 06/16/2014; Ex. Dec. on liability: 04/19/2013).

630.3 Credibility Considerations

Complainant filed a charge of discrimination based on his conviction/arrest record when he was terminated by his employer after working two (2) shifts for Respondent. Respondent claimed that the motivation for terminating Complainant was his alleged failure to disclose a 1993 conviction and three contacts with the police that were neither convictions nor arrests.

The Hearing Examiner found that Respondent's position was not credible. This was because the Hearing Examiner found that Respondent's primary witness's testimony was given in a manner that lead the Hearing Examiner to believe she was protecting her employer rather than telling the truth. Hayes v. Clean Power, MEOC Case No. 19982028 (Ex. Dec. 10/7/99).

Inconsistencies in the stated reasons for termination cast substantial doubt on the credibility of the Respondent. Presentation of conflicting explanations at different times casts doubt on the legitimacy of the reason proffered by the Respondent and helps to form a basis for concluding that retaliation was, at least in part, a motive for the Complainant’s termination. Cruse v. Nordic Consulting, MEOD Case No. 20142065.

The Respondent’s failure to provide a reasonable explanation for its decision to terminate the Complainant at the time of the termination gives rise to the inference that the Respondent’s true reason was an impermissible one. Cruse v. Nordic Consulting, MEOD Case No. 20142065.

The Respondent’s willingness to ignore process, procedure and regulation in favor of their own view of their personal interest, casts doubt on the credibility of the Respondent and adds to the inference that the Respondent was willing to ignore the requirement that it not retaliate against the Complainant for her exercise of a right protected by the ordinance. Cruse v. Nordic Consulting, MEOD Case No. 20142065.

Respondent’s minimization of the Complainant’s experience undercuts the credibility of the Respondent’s witness, particularly when considered along with the fragile reasoning as to how a less qualified candidate’s education and employment experiences eclipsed those of the more qualified Complainant. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.

630.4 Cases

Where the MEOC (1) allows the complainant to participate in the investigation of the complaint by bringing witnesses and documents, (2) writes a detailed list of reasons for its investigative determination, and (3) has the authority to issue subpoenas to require the employer to explain its actions, it is not a denial of due process to limit the complainant's appeal of a no probable cause determination to a written and/or oral presentation to an examiner. State ex rel. Adams v. MEOC, (Northport Packers), No. 82-CV-1637 (Dane County Cir. Ct., 6/9/83).