700 Procedure
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 Complainant alleged that the Respondent discriminated against her in terms and conditions of employment on account of her race and color. A hearing on the merits was scheduled for September 21, 2010 at 9:00 AM. On September 21, the Complainant failed to appear on time. As a result, the Hearing Examiner concluded proceedings, took the Respondent's motion to dismiss under advisement, and issued an Order to Show Cause. In her answer to the Order to Show Cause, the Complainant insisted t at she did not receive the Notice of Hearing issued April 8, 2010. However, the Complainant submitted a letter to the Equal Opportunities Division on May 4, 2010 acknowledging receipt of the Notice of Hearing. In the Decision and Order on Respondent's Motion to Dismiss, the Hearing Examiner concluded that the Complainant failed to set forth a good faith explanation for her belated appearance at the hearing. The Hearing Examiner dismissed the Complainant's case for failure to show cause. McCann-Smith v. St. Mary's Hospital, MEOC Case No. 20092160 (Ex. Dec. 11/3/10).
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 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.
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).
710 Complaint
The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).
The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).
A tenant who was evicted for dealing drugs from his apartment brought an EOC complaint against his former landlord, claiming discrimination based upon his arrest record. The tenant had been targeted by local police and the FBI. The landlord initiated court proceedings to evict the tenant only after having been informed that the tenant was under investigation. At the eviction hearing, the tenant raised discrimination based upon his arrest record as an affirmative defense. The circuit court explicitly found that the landlord did not violate the Equal Opportunities Ordinance.
Subsequently, the landlord moved to dismiss the EOC complaint, asserting that collateral estoppel precluded the tenant from relitigating his discrimination claim. After reviewing the eviction hearing transcript, the EOC Hearing Examiner ruled that the tenant never had an opportunity to fully and fairly litigate his claim because the circuit court judge had prevented the tenant from giving any testimony related to his EOC complaint. Pesselman v. Thomas Link, d/b/a Bellevue Apartments, MEOC Case No. 20021153 (Ex. Dec. 5/26/2005).
710.1 Timeliness
710.11 Measurement of Timeliness
The Hearing Examiner concluded that the Commission uses the standard of "knew or reasonably should have known" when determining the timeliness of filing a complaint. The Hearing Examiner then determined that the Respondents had failed to demonstrate that the Complainant should have known of the differential treatment afforded a male at a date earlier than she proposed. Ennis v. Local 965 IBEW, MEOC Case No. 22118 & Ennis v. WP&L, MEOC Case No. 22119 (Ex. Dec. on jurisdiction 2/3/95 and 3/17/95).
The Hearing Examiner concluded that the Commission could utilize the continuing course of conduct theory to sustain jurisdiction over a complaint where the complaint alleged several acts of discrimination, some occurring outside of the 300-day period of limitations. In order to sustain such a theory, the Complainant must demonstrate either that there was a single motivation for the respondent's actions, or that the underlying conduct was significantly related. The Hearing Examiner also found that jurisdiction could be sustained if within the period of limitations the Complainant discovered that his termination, which fell outside the period of limitations, had been discriminatory. The Examiner determined that the facts before him in the record of this case were inadequate to make a final determination of jurisdiction and remanded the complaint to the Investigator.
The Investigator concluded that the Respondent had not acted with a single motivation, and that the allegations of discrimination for refusal to accommodate a disability, termination and interference with a benefit of employment (unemployment compensation) were not sufficiently similar to apply the continuing course of conduct doctrine. The Investigator entered findings of no probable cause with respect to the claims of refusal to accommodate and interference with a benefit of employment, but concluded that there was an issue of credibility concerning the date of the Complainant's knowledge of an allegedly discriminatory motive for his termination.
The Respondent renewed its motion to dismiss for lack of jurisdiction based on the Complainant's testimony in his deposition that he had suspected discrimination to be a factor in his termination at the time of his termination and conveyed this suspicion to others shortly thereafter. All these events took place outside of the period of limitation.
The Hearing Examiner dismissed the complaint, finding that there was no longer a reasonable question of fact concerning the date on which the Complainant first reasonably suspected that discrimination might have occurred, and that the date, falling outside of the limitations period, deprived the Commission of jurisdiction. Krebs v. Don Miller Pontiac Subaru, Inc., MEOC Case No. 22127 (Ex. Dec. on jurisdiction 3/29/96).
The Hearing Examiner applied his earlier decisions in Ennis and Krebs to find that the Complainant's claim partially fell within the jurisdiction of the Commission. He concluded that events occurring before the Respondent's knowledge of the Complainant's sexual orientation could not have been a basis for a complaint, but found that the complaint stated sufficient facts that a reasonable person could find that there had been a continuing course of conduct, continuing into the 300-day period preceding the filing of the complaint. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec. 11/11/97, on motion to dismiss 2/19/96).
The Respondent claimed that the complaint should be dismissed because the Complainant had allegedly filed his application outside of the 300 day time limit. The Hearing Examiner concluded that though an initial application may have been filed outside of the 300 day time limit, a second application was filed within the time limit and the Commission had jurisdiction over that application while it did not have jurisdiction over earlier events. The Hearing Examiner did not find the continuing violation theory to apply to the circumstance of a failure to hire after an application, despite repeated inquiries as to the status of that application. The application upon which jurisdiction was predicated, though filed outside of the 300 day time limit, was not acted upon until a date within the 300 day limit. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec.12/5/97).
The Hearing Examiner dismissed the complaint on the motion of the Respondent because the events comprising the allegations of the complaint occurred outside of the 300 day limitations period. The Hearing Examiner rejected Complainant's contention that an inquiry made by the Respondent after his termination about a discount he had allegedly authorized prior to his termination demonstrated a continuing violation. Converse v. Mansion Hill Inn, MEOC Case No. 22813 (Ex. Dec. 4/3/98).
Complainant filed a complaint with the Commission alleging that Respondent terminated her employment in retaliation for her exercise of rights protected by the ordinance. The Complainant did not file her complaint in a timely manner because the statute of limitations began to run from the date of her termination, not the date of her decision of her appeal of her termination. However, the Hearing Examiner found that the late filing could be excused because of Respondent's attempt to limit the Complainant's access to the Commission or counsel by threats allegedly made to cease processing of her appeal or settlement negotiations by the Respondent if the Complainant filed a complaint or attained an attorney. Dunn v. South Central Library System, MEOC Case No. 19982195 (Ex. Dec. 6/24/99).
An Initial Determination was received and signed for by someone other than the Complainant who was living at the address provided by Complainant. Complainant claims to have actually received the Initial Determination after the appeal deadline. The Commission will not set aside the appeal deadline when mail is received at the Complainant's provided address. Garwo v. Gardner Bakery Co., MEOC Case No. 19992041 (Comm. Dec. 3/3/00).
Calculation of the 15-day appeal period following the issuance of a No Probable Cause Initial Determination is governed by MEOC Rule 13.2. Day one is "the first business day following" the act or event initiating the count, in this case Tuesday November 1, 2016 (since the NPC ID was issued on October 31, 2016, and November 1, 2016 was not a holiday). Day fifteen was Tuesday, November 15, 2016, which was not a holiday. Hence, a request for appeal received before close of business hours on November 15, 2016 was timely under MEOC Rule 13.2. Watson v. The River Food Pantry, MEOC Case No. 20162067 (Ex. Dec. on accommodation 08/31/2017; Ex. Dec. on mot. to dismiss 08/04/2017).
710.12 Continuing Violations
Note: A complaint generally must be filed within 300 days after the alleged discrimination occurs. However, there are exceptions.
Where the employee is still being paid a salary level which she alleges has been discriminatory since first set six years ago, her complaint alleges a continuing violation and is therefore timely. Meyer v. MATC, MEOC Case No. 2603 (Comm. Dec. 11/9/81, Ex. Dec. 6/16/81).
The Respondent claimed that the complaint should be dismissed because the Complainant had allegedly filed his application outside of the 300 day time limit. The Hearing Examiner concluded that though an initial application may have been filed outside of the 300 day time limit, a second application was filed within the time limit and the Commission had jurisdiction over that application while it did not have jurisdiction over earlier events. The Hearing Examiner did not find the continuing violation theory to apply to the circumstance of a failure to hire after an application, despite repeated inquiries as to the status of that application. The application upon which jurisdiction was predicated, though filed outside of the 300 day time limit, was not acted upon until a date within the 300 day limit. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec.12/5/97).
The Hearing Examiner dismissed the complaint on the motion of the Respondent because the events comprising the allegations of the complaint occurred outside of the 300 day limitations period. The Hearing Examiner rejected Complainant's contention that an inquiry made by the Respondent after his termination about a discount he had allegedly authorized prior to his termination demonstrated a continuing violation. Converse v. Mansion Hill Inn, MEOC Case No. 22813 (Ex. Dec. 4/3/98).
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 alleged that he suffered continuous racial and ethnic harassment while employed by the Respondent and that he was constructively discharged as a result. Subsequent to a Pre-Hearing Conference, the Respondent submitted two motions: a Motion to Strike and a Motion for Summary Judgment. The Hearing Examiner found that the Respondent's Motion to Strike failed to observe the spirit of the Equal Opportunity Division (EOD)'s more relaxed approach to litigation and dismissed the motion as unduly strict. As for the Respondent's Motion for Summary Judgment, the Hearing Examiner reiterated that the EOD does not accept such motions and treated the motion as one asserting lack of jurisdiction. Ultimately, the Hearing Examiner dismissed the motion on the grounds that the Respondent failed to demonstrate that the Complainant's claims fell outside the 300-day statute of limitations under Equal Opportunities Commission Rule 3.11. Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).
710.13 Tolling of Time to File Complaint; Equitable Estoppel
710.14 Determinations of Timeliness, Appealability
710.2 Parties, Naming in Complaint
In a housing discrimination claim, the Complainant's request for damages against a third party, not under the control of the named Respondent, should have been filed against the appropriate third party. 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).
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).
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).
710.3 Identification of Issues, Notice
710.4 Amendment of Complainant, Relation Back to Original Complaint
The Hearing Examiner gave the Complainant time to amend his complaint of discrimination to add an additional claim of discrimination, based upon the rules of the Commission which say that a complaint may be amended at any time prior to the issuance of a Notice of Hearing. Reagan v. P.A. Bergner d/b/a Boston Store, MEOC Case No. 21832 (Ex. Dec. 2/7/95).
The Hearing Examiner permitted the Complainant to amend the complaint to add respondents subsequent to the issuance of a Notice of Hearing since the Complainant demonstrated that she was unaware of the existence of several other owners of the property until she had been permitted to conduct discovery. The Hearing Examiner did not believe that the additional complexity of the litigation resulting from the addition of four respondents would be unmanageable or manifestly unfair to the existing Respondent. Booker v. Threlfall et al., MEOC Case No. 1670 (Ex. Dec. 11/19/97).
The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec.12/5/97).
The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).
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).
710.5 Adequacy of Complaint
710.6 Appeal of Preliminary Determination Dismissing Complaint
710.7 Effect of Pre-Filing Release of Claims
The Hearing Examiner denied the Respondent's Motion to Dismiss for lack of jurisdiction. The Respondent contended that a prior settlement agreement barred the complaint before the Commission. The Hearing Examiner determined that there was insufficient proof that the terms of the prior settlement agreement, settling a grievance and dismissing the Complainant's EEOC complaint, required dismissal of the complaint before the Commission. Foy v. Madison Rehabilitation & Convalescent Center, MEOC Case No. 21831 (Comm. Dec. 6/5/95, Ex. Dec. 8/29/94, Ex. Interim Dec. 7/5/94).
Pending before the Hearing Examiner is the Respondent's Motion to Dismiss three of the five allegations of discrimination in the complaint due to a settlement agreement entered into between the parties in this matter. The remaining two allegations of discrimination for which there was a finding of no probable cause should proceed through the review process regardless of the Hearing Examiner's determination with respect to jurisdiction. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
Complainant having alleged that Respondent discriminated against him on the basis of his age when it failed or refused to select him for a variety of positions, discouraged him from applying for at least one position, eliminated his position and terminated his employment in violation of the Madison Equal Opportunities Ordinance 39.03 (8), Respondent denied that it discriminated against the Complainant on any basis and asserted that several of the Complainant's claims should be dismissed for a lack of jurisdiction because the Complainant had entered into a settlement of certain claims with the Respondent and claims covered by that settlement should be deemed waived.
Rather than addressing the Respondent's claims regarding the alleged waiver of certain of the allegations in the complaint, the Investigator/Conciliator proceeded with an investigation and issued a no probable cause Initial Determination, which Complainant appealed to the Hearing Examiner for review.
The Hearing Examiner believes the Investigator/Conciliator erred in not transferring the complaint to the Hearing Examiner when the issue of waiver was first raised by the Respondent. Had that transfer occurred, the Hearing Examiner and the parties could have determined the proper steps for addressing the claim of a lack of jurisdiction. This Decision and Order should serve to provide the Investigator/Conciliators with guidance concerning how and when to transfer such issues to the Hearing Examiner. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
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 Hearing Examiner finds that generally speaking, the Commission has the authority and the interest to give effect to settlement agreements and waivers such as the one in the present matter.
These so-called "private settlements," at least in part, avoid the need for the terms and conditions of a compromise from becoming available to the public as would be the case where the Commission is a party; they are consistent with the Commission's desire to see disputes settled with the least expense and turmoil to the parties; and they help the Commission in its efforts to reduce strife and the other adverse affects of illegal discrimination as set forth in the Preamble to the Equal Opportunities Ordinance. See Sec. 39.03(1). In addition, such settlements should reduce the expenditure of administrative resources by the Commission, allowing for other enforcement efforts. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
The Commission can have no interest in giving effect to a settlement agreement and waiver that is achieved by overreaching or without safeguards to assure that both sides are adequately informed of their rights and options.
While, generally speaking, the Hearing Examiner finds that the Commission has the authority and the interest to give effect to settlement agreements and waivers such as the one in the present matter, and while recognizing that such agreements are not contrary to the enforcement scheme set forth in the Ordinance, it does not necessarily follow that every such agreement can or will be given the desired preclusive effect. 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).
710.9 Miscellaneous
The Madison Equal Opportunities Commission issued an order to transfer this complaint, which dealt with alleged discrimination on the basis of age, race, color, and national origin/ancestry to the Department of Workforce Development Equal Rights Division. The Commission granted the transfer request of the Respondent to avoid the appearance of a lack of neutrality in the wake of Complainant's prohibited ex parte communications with Commission staff, upon which the Complainant may have relied as advice. Lee v. National Conference of Bar Examiners, MEOC Case No. 20032014 (Comm. Dec. 10/20/05, Ex. Dec. 4/21/05).
720 Investigation
720.1 Generally
Pending before the Hearing Examiner is the Respondent's Motion to Dismiss three of the five allegations of discrimination in the complaint due to a settlement agreement entered into between the parties in this matter. The remaining two allegations of discrimination for which there was a finding of no probable cause should proceed through the review process regardless of the Hearing Examiner's determination with respect to jurisdiction. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
Complainant having alleged that Respondent discriminated against him on the basis of his age when it failed or refused to select him for a variety of positions, discouraged him from applying for at least one position, eliminated his position and terminated his employment in violation of the Madison Equal Opportunities Ordinance 39.03 (8), Respondent denied that it discriminated against the Complainant on any basis and asserted that several of the Complainant's claims should be dismissed for a lack of jurisdiction because the Complainant had entered into a settlement of certain claims with the Respondent and claims covered by that settlement should be deemed waived.
Rather than addressing the Respondent's claims regarding the alleged waiver of certain of the allegations in the complaint, the Investigator/Conciliator proceeded with an investigation and issued a no probable cause Initial Determination, which Complainant appealed to the Hearing Examiner for review.
The Hearing Examiner believes the Investigator/Conciliator erred in not transferring the complaint to the Hearing Examiner when the issue of waiver was first raised by the Respondent. Had that transfer occurred, the Hearing Examiner and the parties could have determined the proper steps for addressing the claim of a lack of jurisdiction. This Decision and Order should serve to provide the Investigator/Conciliators with guidance concerning how and when to transfer such issues to the Hearing Examiner. 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 Hearing Examiner finds that generally speaking, the Commission has the authority and the interest to give effect to settlement agreements and waivers such as the one in the present matter.
These so-called "private settlements," at least in part, avoid the need for the terms and conditions of a compromise from becoming available to the public as would be the case where the Commission is a party; they are consistent with the Commission's desire to see disputes settled with the least expense and turmoil to the parties; and they help the Commission in its efforts to reduce strife and the other adverse affects of illegal discrimination as set forth in the Preamble to the Equal Opportunities Ordinance. See Sec. 39.03(1). In addition, such settlements should reduce the expenditure of administrative resources by the Commission, allowing for other enforcement efforts. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
The Commission can have no interest in giving effect to a settlement agreement and waiver that is achieved by overreaching or without safeguards to assure that both sides are adequately informed of their rights and options.
While, generally speaking, the Hearing Examiner finds that the Commission has the authority and the interest to give effect to settlement agreements and waivers such as the one in the present matter, and while recognizing that such agreements are not contrary to the enforcement scheme set forth in the Ordinance, it does not necessarily follow that every such agreement can or will be given the desired preclusive effect. 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).
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).
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).
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).
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).
720.2 Appeal of No Probable Cause Determinations
The Hearing Examiner applied the rule that the period for appealing an initial determination's finding of no probable cause runs from the date of receipt by the complainant of the initial determination, not from the date the Commission mails the initial determination. The Examiner concluded that because the Respondent failed to demonstrate any prejudice from the Complainant's failure to serve his appeal of the initial determination on the Respondent, its motion to dismiss pursuant to Commission Rule 7.5 should be denied. Butler v. Research Products, MEOC Case No. 22031 (Ex. Dec. on jurisdiction 3/8/95).
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 such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).
The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).
The Hearing Examiner found that the time which a Complainant may appeal a no probable cause Initial Determination begins to run from the date that the Initial Determination is received by the Complainant. The Hearing Examiner reasoned that the receipt of the Initial Determination begins the ten (10) day period in which the Complainant must file an appeal of a no probable case finding, not the day of issuance from the Investigator or notice of attempted delivery of the Initial Determination to the Complainant. Respondent's argument that the date upon which the Complainant had "constructive receipt" should be the applicable time frame in which the appeals process should be measured was rejected. The Commission adopted the Hearing Examiner's reasoning. Moore v. Leader Nursing and Rehabilitation Ctr., MEOC Case No. 21810 (Comm. Dec. 10/13/94, Ex. Dec. 5/6/94).
An Initial Determination was received and signed for by someone other than the Complainant who was living at the address provided by Complainant. Complainant claims to have actually received the Initial Determination after the appeal deadline. The Commission will not set aside the appeal deadline when mail is received at the Complainant's provided address. Garwo v. Gardner Bakery Co., MEOC Case No. 19992041 (Comm. Dec. 3/3/00).
The Commission ordered that the complaint alleging race/color discrimination be re-opened following an administrative dismissal resulting from Complainant's failure to appeal timely (within 15 days) an Initial Determination of No Probable Cause. The Complainant showed that she mailed her appeal to the EEOC office in Milwaukee within the 15-day time limit pursuant to her understanding of information contained with the Initial Determination. The Commission found the Complainant, legally unrepresented, had exercised good faith in attempting to comply with the deadlines for appeal, and excused her noncompliance due to arguably confusing procedural instructions. Whitt v. Catholic Charities, MEOC Case No. 20062043 (Comm. Dec. 3/5/07).
720.3 Administrative Dismissals
The Commission ordered the complaint, which had been administratively dismissed for the Complainant's failure to respond, to be re-opened because the Complainant demonstrated that through no fault of his own he had not actually received correspondence from the investigator/conciliator while he was a prisoner in the Dane County Jail. Williams v. Millans Treasure Chest, MEOC Case No. 3374 (Comm. Dec. 8/29/97); Williams v. Foot Locker, MEOC Case No. 3375 (Comm. Dec. 8/29/97)
The Commission held that a complainant moving to reopen an administratively dismissed complaint, has the burden of presenting some explanation for the conduct resulting in the complaint's dismissal. The Complainant may not stand on the facts underlying the complaint alone. Whitt v. Madison Taxi, MEOC Case No. 3397 (Comm. Dec. 7/3/98).
Complainant's complaint was dismissed when the Commission was unable to contact the Complainant due to the lack of a sufficient address. The Complainant's motion to reopen his complaint was denied because Complainant failed to meet his burden to show good cause by his stating that he was unaware of the requirement to keep the Commission informed of address changes or to provide a reasonable explanation for his inability to keep the Commission informed. Chancy v. Viking House, MEOC Case No. 1581 (Comm. Dec. 11/1/94).
The Madison Equal Opportunities Commission denied Complainant's request to reopen his dismissed complaint, which had been dismissed after he did not file an appeal within fifteen days of notification of a finding of no probable cause. Complainant was unable to meet the burden of proof regarding the failure to keep the Commission apprised of his address. Sujud v. Madison Newspaper, Inc., MEOC Case No. 20042123 (Comm. Dec. 10/20/05).
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).
730 Conciliation
Complainant's complaint was dismissed because of his failure to sign the Conciliation Agreement reached by the parties. The Commission determined that the Complainant's stated reasons for his failure to respond, i.e., he was too busy because of problems in his life, was insufficient excuse. The fact that the Complainant asserted approximately three months later that he was ready to proceed did not state a sufficient justification for reopening the complaint. Ruiz v. Attic Correctional Services, Inc., MEOC Case No. 22104 (Comm. Dec. 6/5/95).
Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).
The Hearing Examiner finds that generally speaking, the Commission has the authority and the interest to give effect to settlement agreements and waivers such as the one in the present matter.
These so-called "private settlements," at least in part, avoid the need for the terms and conditions of a compromise from becoming available to the public as would be the case where the Commission is a party; they are consistent with the Commission's desire to see disputes settled with the least expense and turmoil to the parties; and they help the Commission in its efforts to reduce strife and the other adverse affects of illegal discrimination as set forth in the Preamble to the Equal Opportunities Ordinance. See Sec. 39.03(1). In addition, such settlements should reduce the expenditure of administrative resources by the Commission, allowing for other enforcement efforts. 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).
After the parties reached an apparent settlement based upon materials submitted by both parties, the Complainant should not be permitted to seek additional relief not included in the agreement reached by the parties, especially where the Complainant has received a substantial monetary payment. The Complainant was free to file a new complaint for alleged violations not covered by the terms of the apparent settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
The Hearing Examiner exercised his discretion to dismiss a complaint where there was an apparent settlement between the parties that the Complainant refused to honor after receiving a substantial monetary payment. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
Where the Complainant refused to execute the settlement documents and withdrawal form after the Respondent fully complied with the terms of a settlement apparently reached by the parties, the Respondent’s Motion to Dismiss was the proper method to enforce the terms of the agreement, though not signed by the Complainant. It was within the powers of the Hearing Examiner to determine that there had been substantial compliance with the terms of the settlement and that the Complaint should not be permitted to seek further claims not contemplated by the settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
740 Procedures Prior to Hearing
740.1 Notice of Hearing
740.11 Generally
The Hearing Examiner permitted the Complainant to amend the complaint to add respondents subsequent to the issuance of a Notice of Hearing since the Complainant demonstrated that she was unaware of the existence of several other owners of the property until she had been permitted to conduct discovery. The Hearing Examiner did not believe that the additional complexity of the litigation resulting from the addition of four respondents would be unmanageable or manifestly unfair to the existing Respondent. Booker v. Threlfall et al., MEOC Case No. 1670 (Ex. Dec. 11/19/97).
Complainant brought action against her former employer, alleging retaliation and discrimination based upon her age, race, sex and national origin, among other factors. An Investigator/ Conciliator found probable cause and the matter was scheduled for hearing. Prior to hearing, Respondent moved the Commission to transfer the complaint to the Wisconsin Department of Workforce Development, Equal Rights Division, believing that certain communications between the Complainant and both the Investigator and the Hearing Examiner had tainted the process available to the parties under the Equal Opportunities Ordinance. The Hearing Examiner ruled that although the rights available under the Ordinance were not necessarily available under state law, and although there were important public policy reasons for not transferring the case, the Complainant had created a potentially prejudicial environment by attempting to influence members of the Commission staff. Lee v. National Conference of Bar Examiners, MEOC Case No. 20032014 (Comm. Dec. 10/20/05, Ex. Dec. 4/21/05).
When, in separate cases where Complainant alleged that two separate Respondents, CUNA Mutual Group and referring employment agency Aerotek Staffing Agency, discriminated against her on the basis of credit history, consolidation of these complaints is warranted absent an indication on the record that the causes of action against the two Respondents should be seen as unique or that there is a reasonable prospect that the Complainant's theories of liability could establish different outcomes based upon differences in the actions of the parties. Bakken v. Aerotek Staffing Agency, MEOC Case No. 20132110 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. CUNA Mutual Group; Bakken v. CUNA Mutual Group, MEOC Case No. 20132111 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. Aerotek Staffing Agency.
Respondents filed a motion to consolidate two cases when in separate complaints Complainant alleged that two separate Respondents, CUNA Mutual Group and referring employment agency Aerotek Staffing Agency, discriminated against her on the basis of credit history. Generally sound reasons favoring the consolidation of such closely related complaints include that the allegations arise out of a single set of facts and circumstances, and that witnesses in both cases are likely to be identical. Benefits of consolidation can include savings in time for all parties, witnesses, and the Department, and avoidance of duplication of effort and expense that separate hearings would entail. Bakken v. Aerotek Staffing Agency, MEOC Case No. 20132110 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. CUNA Mutual Group; Bakken v. CUNA Mutual Group, MEOC Case No. 20132111 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. Aerotek Staffing Agency.
Consolidation of closely related complaints into a single case for hearing may offer the opportunity to avoid the possibility of inconsistent outcomes. If these matters were tried separately upon the same set of facts, differences in outcome could occur due to issues unrelated to the facts. Differences in presentation or in technique might lead to differing outcomes even though it appears that the facts are essentially the same. While this possibility might be seen as a "second chance" for the Complainant, it represents a difficult and potentially untenable problem for the Department. Bakken v. Aerotek Staffing Agency, MEOC Case No. 20132110 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. CUNA Mutual Group; Bakken v. CUNA Mutual Group, MEOC Case No. 20132111 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. Aerotek Staffing Agency.
When Complainant allegations in two separate cases arise out of a single set of facts and circumstances, and witnesses in the two cases are likely to be identical, trial of the first claim may well result in a protracted dispute over the application of the principle of collateral estoppel to the second claim, absent consolidation of the two cases. Bakken v. Aerotek Staffing Agency, MEOC Case No. 20132110 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. CUNA Mutual Group; Bakken v. CUNA Mutual Group, MEOC Case No. 20132111 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. Aerotek Staffing Agency.
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).
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).
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).
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).
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).
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).
740.12 Identification of Issues
A Hearing Examiner is without authority to enter a conclusion of discrimination on issues such as failure to rehire which were set forth in neither the notice of hearing nor which the employer otherwise had notice of (e.g., through the complaint or other documents); . . . but such notice requirement does not extend to any issues concerning proper remedy. Maxson v. Means Servs., MEOC Case No. 2783 (Comm. Dec. 6/15/83, Ex. Dec. 11/18/82), aff'd. on other grounds, Maxson v. MEOC (Means Servs.), No. 84 CV 4150 (Dane County Cir. Ct., 7/18/85). [NO LINK AVAILABLE]
The Hearing Examiner denied the Respondent's motion to dismiss for lack of subject matter jurisdiction. The Respondent alleged that one count of the Notice of Hearing was deficient because the Initial Determination lacked findings adequate to support the issue. The Hearing Examiner agreed that the Initial Determination could have been written more precisely but concluded that the Respondent had adequate notice that its failure to train Complainant for an EKG Monitor position was an issue in the complaint. Martinez v. St. Mary's Hospital Medical Center, MEOC Case No. 21812 (Ex. Dec. on jurisdiction 10/5/94).
One of the fundamental underpinnings of due process is notice. A Respondent must have notice of the claims it will be expected to defend. To raise and issue that has not appeared in a Notice of Hearing statement of issues, the Hearing Examiner will find that he is without jurisdiction to address those claims. The Complainant’s post hearing brief includes several issues not contemplated by the Notice of Hearing. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.
740.2 Answer
The Respondent failed to file a written answer to the Notice of Hearing as required by the ordinance. The Respondent offered no explanation other than a straight forward admission of negligence but contended that there was no unfair surprise or prejudice to the complainant and therefore, no sanction could be applied. The Hearing Examiner determined that if Respondent's position was justified, the Respondent bears the burden of demonstrating that his default did not prejudice or cause unfair surprise to the Complainant. The Hearing Examiner also determined that the Respondent's request for a postponement for further discovery by Complainant was an inappropriate remedy. Instead the Hearing Examiner prohibited Respondent from introducing any testimony or evidence in support of his position during the liability portion of the hearing. Respondent was permitted to cross-examine Complainant's witnesses and could still oppose Complainant's exhibits during the liability portion of the hearing. Green v. Soliman, MEOC Case No. 1679 (Ex. Dec. on preclusion of testimony 2/28/97).
Complainants allege that the Respondent discriminated against them on the basis of their race (African-American) in the provision of a public place of accommodation or amusement. Subsequent to an Initial Determination of Probable Cause, the Hearing Examiner issued a Notice of Hearing and Scheduling Order on December 14, 2009. The Notice of Hearing required the Respondent to provide an answer within 10 days of its receipt. The Respondent did not file an answer to the Notice of Hearing until May 11, 2010. On January 11, 2010, the Complainants filed a motion seeking a default judgment for the Respondent's failure to timely answer the Notice of Hearing. On May 24, 2010, the Hearing Examiner held a hearing on the Complainant's motion. The Hearing Examiner was not persuaded by the Respondent's assertion that it did not receive the Notice of Hearing. The Hearing Examiner held that the inquiry ends once there is evidence that a notice was received at the last known address provided by the parties. Nevertheless, the Hearing Examiner found that an entry of default judgment was not supported by the record. In lieu of a default judgment, the Hearing Examiner granted the Complainants additional time to conduct discovery; and ordered the Respondent to pay the Complainants' reasonable costs and fees including a reasonable attorney's fee for the time expended in bringing and pursuing their motion. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011).
The parties attended a Pre-Hearing Conference at which the Hearing Examiner, among other things, stressed the importance of the Respondent's answer to the forthcoming Notice of Hearing. Subsequent to the Pre-Hearing Conference, both parties obtained counsel. Counsel for the Complainant filed a Motion for Default Judgment or for sanctions in the alternative due to the Respondent's failure to answer the Notice of Hearing. Upon review of the record, the Hearing Examiner concluded that the facts of the case did not warrant the issuance of a default judgment on liability. Rather, in granting the Complainant's motion for sanctions, the Hearing Examiner permitted the Respondent's cross-examination of witnesses and the limited introduction of documentary evidence, but precluded the Respondent from submitting direct evidence as part of its case. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11).
The Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when its taxi driver dropped them off short of their destination. The Complainants asserted that the Respondent's taxi driver, who is white and Caucasian, exhibited an irrational fear that the Complainants would harm him due to the stereotype that black, African American men are prone to violence. The Respondent maintained that its driver simply followed its curb-to-curb policy regarding drop-offs and that, given the Complainants' complete silence during the ride, its driver was justified in fearing for his safety. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent's proffered, non-discriminatory reasons for its driver's actions were not credible and a pretext for racial discrimination. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages totaling $35,000 and to pay their costs and attorney's fees. The Hearing Examiner also issued sanctions for the Respondent's failure to timely file an answer to the Notice of Hearing. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012).
740.3 Postponements
740.4 Pre-Hearing Conferences and Orders
The Hearing Examiner determined that it was inappropriate to apply sanctions on Complainant's counsel for a failure to follow the scheduling order's dictates with respect to the filing of a response to a motion for summary judgment, because the Complainant's counsel provided adequate explanation of the reasons for the failure. Similarly, Respondent's motion for sanctions for failure to comply with discovery was denied because the Hearing Examiner never issued an order compelling compliance with discovery. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).
Where a complaining party did not comply with the Hearing Examiner's Notice of Pre-Hearing Conference setting a Pre-Hearing Conference nor with the Examiner's Order to Show Cause allowing Complainant the ability to demonstrate good cause for his failure to appear, the complaint was properly dismissed even though the Respondent suffered no appreciable prejudice by the Complainant's failure to comply with the Examiner's orders. Butler v. Russ Darrow, MEOC Case No. 3359 (Ex. Dec. 7/30/96).
Complainant failed to appear for Pre-Hearing Conference and Respondent moved to dismiss the complaint. Hearing Examiner issued Order to Show Cause why the complaint should not be dismissed. Complainant submitted materials indicating that he had cirrhosis and that his condition was painful. Hearing Examiner dismissed the complaint because Complainant never showed that his condition caused/explained his failure to appear. Ivy v. Belmont Nursing & Rehabilitation Center, MEOC Case No. 20032225 (Ex. Dec. 10/28/04).
The Hearing Examiner issued a Notice of Pre-Hearing Conference by sending the parties a Notice by certified mail. The Notice set the date for the Pre-Hearing Conference for April 29, 2011. The Complainant's Notice was returned to the Equal Opportunities Division (EOD) as "unclaimed" on May 2, 2011. Prior to the Notice's return to the EOD, the U.S. Post Office attempted to deliver it twice leaving notices of attempted delivery. The Complainant did not appear at the Pre-Hearing Conference. In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not receive the Notice of Pre-Hearing Conference. The Hearing Examiner found that the Complainant did not adequately explain her failure to retrieve the Notice from the Postal Service. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the EOD, and that the Commission does not generally reopen claims where the failure to appear is due to a Complainant's own conduct. Since the Complainant's receipt of the Notice of Pre-Hearing Conference was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Lawler v. Madison Metropolitan School District, MEOC Case No. 20102194 (Ex. Dec. 07/20/11).
The Hearing Examiner issued a Notice of Pre-Hearing Conference on August 24, 2011 to the Complainant and the Respondent by "delivery confirmation." The Notice set the date of the Pre-Hearing Conference for September 15, 2011. The U.S. Post Office attempted unsuccessfully to deliver the Notice to the Complainant on August 26, 2011 and left a notice of attempted delivery. Thereafter, the Complainant failed to appear at the Pre-Hearing Conference. In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not received the Notice, because she had temporarily moved to the Wisconsin Dells for work.
The Hearing Examiner concluded that the Complainant failed to provide an adequate excuse for her non-appearance at the Pre-Hearing Conference. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the Equal Opportunities Division (EOD); and found that the Complainant should have notified the EOD of her impending absence from the mailing address she had initially provided and that she should have informed the EOD of her new mailing address in the Wisconsin Dells. Since the Complainant's receipt of the Notice was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Hamidi v. Dreamweavers, Inc., MEOC Case No. 20112071 (Ex. Dec. 08/16/12).
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).
While the Equal Opportunities Commission recognizes that default judgments are not favored by the courts and that it is preferable for each person to have his day in court, the Commission has a long history of holding, particularly Complainants, to the requirements to attend scheduled proceedings. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Comm. Dec. 03/12/2014), Hohlstein v. Shopko, MEOC Case No. 22381 (Ex. Dec. (11/26/96), Velazquez-Aguilu v. Abercrombie & Fitch, MEOC Case No. 03398 (Comm. Dec. 7/20/99, Ex. Dec. 03/30/99). In determining whether a party before the Commission should be excused for a failure to appear, the Commission has determined that the standard of excusable neglect should be used. Norris, supra. In this test, it is the duty of the party seeking relief for a failure to appear to demonstrate something more than mere inadvertence or the everyday reasons for one to miss an appointment. Burns v. Erbert’s & Gerbert’s Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
Respondent moved to have the case dismissed for Complainant failure to appear after Complainant both notified the Hearing Examiner shortly before a scheduled Pre-Hearing Conference of his inability to appear, then failed to appear at a rescheduled Pre-Hearing Conference at which Respondent was present. The Hearing Examiner issued an Order to Show Cause inviting the Complainant to account for his failure to appear. Complainant‘s explanation, not timely filed, that he simply forgot the conference due to overwhelming work responsibilities is a species of common negligence that falls short of the demonstrably excusable neglect standard deemed appropriate by the Commission. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Comm. Dec. 03/12/2014). Burns v. Erbert's & Gerbert's Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
While the Hearing Examiner does not like to dismiss a complaint where a party appears to be contrite and promises not to miss future scheduled proceedings, the Hearing Examiner must consider the impact of a party's actions on not only the Hearing Examiner and the Commission's resources, but must also consider the effect that continued efforts to schedule proceedings will have on the other party. In this matter, the Respondent was prepared to appear for a Pre-Hearing Conference on June 15, 2015 and did appear on August 13, 2015, on which date one of the Respondent's representatives travelled from Minnesota to appear. Complainant left a message shortly before the first conference indicating that he would be unable to attend, and failed to appear or notify anyone that he would not be at the rescheduled conference. Without a secure belief that there will not be future scheduling problems, the Hearing Examiner finds that it is unfair to place additional expense upon the Respondent. Burns v. Erbert's & Gerbert's Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
The Division mails Notices of Pre-Hearing Conference and other similar documents "delivery confirmation." This means the U.S. Postal Service will confirm the date and time of the delivery but will not confirm any specific individual's name as recipient.
In response to an Order to Show Cause why the complaint should not be dismissed for the Complainant's failure to appear at the Pre-Hearing Conference, the Complainant alleges she did not, in fact, receive the Notice of Pre-Hearing Conference, however she seems to have received and responded to all other requests for information or notices to appear. The Hearing Examiner found that the Complainant's past history of responsiveness suggested that she had not received the Notice. The Respondent's Motion to Dismiss was denied. Miller v. Madison Pointe Senior Living, MEOD Case No. 20162043/EEOC Case No. 26B201600025.
740.5 Discovery
The Complainant failed to comply with the Respondent's legitimate discovery requests. Upon the Respondent's motion for sanctions, the Hearing Examiner ordered as a condition of the Complainant's continuing the action payment of Respondent's attorney's fees and costs of $562.50. The Complainant failed to comply with the conditions for continuing his complaint. The Hearing Examiner dismissed the complaint without costs to either party. Wiggins v. Shakey's Pizza and Buffet and Richard Skillrud, MEOC Case No. 21409 (Ex. Dec. 2/2/94).
The Hearing Examiner dismissed the complaint because of the Complainant's failure to appear for the taking of his deposition on two occasions and because the Complainant failed to provide any reason for his failure to appear. The Hearing Examiner declined to award the Respondent its costs and attorney's fees related to the depositions and the bringing of the motion, finding that the Complainant did not have timely actual notice of the depositions. Despite the problems with notice of the depositions, the Hearing Examiner determined that dismissal of the complaint was warranted because of the Complainant's failure to respond to orders of the Hearing Examiner. Adams v. Genna's Lounge, MEOC Case No. 3327 (Ex. Dec. 4/19/94).
Complainant filed a claim of discrimination against Respondent when they allegedly denied day care services to their daughter because of her physical disability. Respondent filed a motion to compel Complainant and her spouse to answer questions at their depositions when Complainant along with her spouse refused to do by asserting the marital-spouse privilege. The Hearing Examiner determined that the marital-spouse privilege did not apply according to Sec. 905.05 (3) (d) Wis, Stats., because Complainant and her husband had acted as the agent of the other and the private communications related to matters within the scope of the agency. Krasnick v. Solner, MEOC Case No. 3190 (Ex. Dec. 10/27/88 on evidence).
The Hearing Examiner made several decisions regarding discovery requests. Interrogatories asking for a version of events is a routine part of discovery and should be answered. Attempts to avoid depositions may have serious consequences. The use of "testing" must have proper explanations or else it cannot be protected as attorney work product. Testimony that is not generated by Complainant's counsel and does not reflect strategy or theory is not attorney work product. A proper remedy for failing to answer interrogatories concerning damages suffered is to exclude the evidence at the time of hearing.
There is no attorney work product privilege concerning a request for facts or evidence supporting a damage claim.
When a Complainant asks for emotional distress damages, all aspects of Complainant's life are available for discovery. A Complainant does not have the standing to claim a privacy interest for a witness. A Respondent would not be punished by having to take witness depositions after failed prior attempts. If Respondent's alleged conduct prior to the complaint filing has affected a Complainant's willingness to accept housing, the incidents of alleged conduct are relevant. Booker v. Threlfall et. al., MEOC Case No. 1670 (2nd Ex. Dec. 3/28/00)
Complainant asserts that a Respondent’s failure to produce documents in discover should support a finding that the documents were adverse to the Respondent. The Complainant never sought an Order to Compel from the Hearing Examiner, undermining the inference sought by the Complainant. Llanos v. Wisconsin Women's Business Initiative, MEOD Case No. 20142060/EEOC Case No. 2B201400032.
740.6 Failure to Respond or Appear
The Hearing Examiner awarded the Complainant relief when Respondent failed to appear at the pre-hearing conference. The Complainant presented evidence that when she contacted Respondent to apply for employment as a general laborer, painter, and construction helper, the Respondent refused to consider her application because she is female, without having considered her qualifications for the position. Baremore v. Allen and Procknow, MEOC Case No. 20619 (Ex. Dec. 4/1/87).
Complainant's complaint was dismissed because of his failure to sign the Conciliation Agreement reached by the parties. The Commission determined that the Complainant's stated reasons for his failure to respond, i.e., he was too busy because of problems in his life, was insufficient excuse. The fact that the Complainant asserted approximately three months later that he was ready to proceed did not state a sufficient justification for reopening the complaint. Ruiz v. Attic Correctional Services, Inc., MEOC Case No. 22104 (Comm. Dec. 6/5/95).
A default order is properly entered when Respondent failed to appear at the Pre-Hearing conference and when given the opportunity to explain the nonappearance gives the non-credible conflicting explanations that the person intended to appear forgot the conference due to conflict on his calendar, and that its legal counsel was unable to handle the conference. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).
The complaint is properly dismissed when Complainant's stated reasons for his non-appearance at the Pre-Hearing Conference demonstrates a lack of truthfulness. The facts surrounding the events associated with the scheduled conference demonstrate that Complainant could have taken various steps to cure the possibility of his nonappearance because an initial Pre-Hearing Conference had been postponed and rescheduled. Hohlstein v. Shopko, MEOC Case No. 22381 (Ex. Dec. 11/26/96).
The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent. The Respondent failed to appear at a pre-hearing conference of which it had received notice, and then offered contradictory explanations for its failure to appear when given the opportunity to explain its absence. The Commission concluded that the Hearing Examiner was justified in finding the Respondent's explanations to be incredible and that the limited record supported an award of $100 to the Complainant for one day's lost pay. The Commission affirmed the Hearing Examiner's order that the Respondent place equal opportunity statements in its place of employment and attend training presented by the Commission. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).
Where Complainant failed to comply with the Hearing Examiner's order to submit to discovery and then failed to respond to the Hearing Examiner's Order to Show Cause why the complaint should not be dismissed, the complaint was dismissed with prejudice. However, the Hearing Examiner had no authority to grant Respondent's motion for request of attorney's fees. Harris v. Accent Service Company, MEOC Case No. 22576 (Ex. Dec. 8/24/98).
Complainant filed a complaint against the Respondent based on discrimination in a public place of accommodation or amusement. The Respondent moved for dismissal of the complaint for Complainant's failure to appear at a pre-hearing conference. The dismissal was granted because the Complainant's mother's failure to forward the notice of the conference to the Complainant was not good cause particularly where the Commission had only been given the mother's address for mailing purposes. On appeal, the Commission adopted the Hearing Examiner's decision. Velazquez-Aguilu v. Abercrombie & Fitch, MEOC Case No. 03398 (Comm. Dec. 7/20/99, Ex. Dec. 3/30/99).
Complainant charged that Respondent had terminated him on the basis of his race. After a Pre-Hearing Conference was scheduled, Complainant failed to appear due to his confinement in jail in an unrelated matter. Complainant's case was administratively dismissed for Complainant's failure to appear. Complainant requested that his case be reinstated. The Commission concluded that where a notice of a Pre-Hearing Conference was received at a party's last known address and that party fails to respond, the duty shifts to the non-responding party to keep the Commission informed of a party's latest address. Based on this reasoning the Commission denied Complainant's request to re-instate his complaint. Murphy v. Woodman's and Kellahue, MEOC Case No. 21688 (Comm. Dec. 10/26/93).
The Commission denied Complainant's request to re-instate his complaint when Complainant failed to appear for a scheduled Pre-Hearing Conference despite Complainant's claim that the purported signature on the return service receipt was not his. Specifically, the Complainant alleged that his roommate signed the notice of the hearing and failed to inform the Complainant of the notice. The Commission concluded that even if what the Complainant claimed happened with the signature was true, it is still the responsibility of all complainants to remain informed about their complaints and the progress of the complaints. Francis v. Quarra Stone Company, MEOC Case No. 21764 (Comm. Dec. 11/4/93).
Complainant failed to appear for Pre-Hearing Conference and Respondent moved to dismiss the complaint. Hearing Examiner issued Order to Show Cause why the complaint should not be dismissed. Complainant submitted materials indicating that he had cirrhosis and that his condition was painful. Hearing Examiner dismissed the complaint because Complainant never showed that his condition caused/explained his failure to appear. Ivy v. Belmont Nursing & Rehabilitation Center, MEOC Case No. 20032225 (Ex. Dec. 10/28/04).
The Complainant alleged race, color, sex, age, and student status discrimination in employment against Respondent. Following a Pre-hearing conference where the Respondent did not appear and did not respond timely to a subsequent Order to Show Cause, the Hearing Examiner rejected Respondent's argument that it was confused regarding its necessary appearances, and entered a default judgment on liability against the Respondent. 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).
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).
Complainant alleged that the Respondent discriminated against him on the basis of his disability when it terminated his employment. The Respondent denied discriminating against the Complainant on the basis of his disability, and asserted, among other things, that the Complainant violated the Respondent's attendance policy. Subsequent to attending a Pre-Hearing Conference, the Respondent failed to submit a written answer within 10 days of the issuance of the Notice of Hearing. Eventually, the Respondent did file a written response to the Notice of Hearing. The Hearing Examiner found that this belated response sufficiently demonstrated a renewed intent to fully comply with future orders and therefore a sanction for the Respondent's initial failure to respond was unnecessary, especially given the fact that the Respondent was not represented by counsel. Still, the Hearing Examiner recognized that the Respondent's initial failure to respond generated additional expenses for the Complainant. Accordingly, the Hearing Examiner ordered the Complainant to file an accounting and explanation of additional discovery expenses which the Respondent will be required to pay, unless it objects to the accounting within one week of its receipt. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. 7/30/08).
The parties attended a Pre-Hearing Conference at which the Hearing Examiner, among other things, stressed the importance of the Respondent's answer to the forthcoming Notice of Hearing. Subsequent to the Pre-Hearing Conference, both parties obtained counsel. Counsel for the Complainant filed a Motion for Default Judgment or for sanctions in the alternative due to the Respondent's failure to answer the Notice of Hearing. Upon review of the record, the Hearing Examiner concluded that the facts of the case did not warrant the issuance of a default judgment on liability. Rather, in granting the Complainant's motion for sanctions, the Hearing Examiner permitted the Respondent's cross-examination of witnesses and the limited introduction of documentary evidence, but precluded the Respondent from submitting direct evidence as part of its case. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11).
The Hearing Examiner issued a Notice of Pre-Hearing Conference by sending the parties a Notice by certified mail. The Notice set the date for the Pre-Hearing Conference for April 29, 2011. The Complainant's Notice was returned to the Equal Opportunities Division (EOD) as "unclaimed" on May 2, 2011. Prior to the Notice's return to the EOD, the U.S. Post Office attempted to deliver it twice leaving notices of attempted delivery. The Complainant did not appear at the Pre-Hearing Conference. In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not receive the Notice of Pre-Hearing Conference. The Hearing Examiner found that the Complainant did not adequately explain her failure to retrieve the Notice from the Postal Service. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the EOD, and that the Commission does not generally reopen claims where the failure to appear is due to a Complainant's own conduct. Since the Complainant's receipt of the Notice of Pre-Hearing Conference was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Lawler v. Madison Metropolitan School District, MEOC Case No. 20102194 (Ex. Dec. 07/20/11).
The Hearing Examiner concluded that the Complainant failed to provide an adequate excuse for her non-appearance at the Pre-Hearing Conference. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the Equal Opportunities Division (EOD); and found that the Complainant should have notified the EOD of her impending absence from the mailing address she had initially provided and that she should have informed the EOD of her new mailing address in the Wisconsin Dells. Since the Complainant's receipt of the Notice was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Hamidi v. Dreamweavers, Inc., MEOC Case No. 20112071 (Ex. Dec. 08/16/12).
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.
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).
After a Pre-Hearing Conference and the setting of a schedule for discovery and a date for a hearing on the merits, Complainant indicated that he was unable to complete discovery and requested postponement of the hearing because he had been incarcerated but expected release within weeks. The Hearing Examiner stayed the proceedings indefinitely but directed the Complainant to contact him promptly upon his release.
Over four months later, Respondent requested the stay be lifted and informed the Hearing Examiner that the Complainant had been recently sentenced to four years’ incarceration. Both parties were asked to address the issue of the stay, and disputed not only the fairness and effects of continuing or not continuing the stay, but the likely actual duration of Complainant’s incarceration.
While the Hearing Examiner is sympathetic to the difficulties presented by the Complainant’s incarceration, the Equal Opportunities Commission has made it clear that incarceration is not a legitimate reason for a Complainant not to meet the responsibilities of pursuing a complaint. Murphy v. Woodman's and Kellahue, MEOC Case No. 21688 (Comm. Dec. 10/26/93).
There are circumstances in which the law requires the Hearing Examiner to accommodate the needs of the parties. However, there is nothing to indicate that incarceration is such a circumstance. The Hearing Examiner has heard several complaints involving persons who were incarcerated at the time of hearing. It is the Hearing Examiner's duty to assure a process that is fair and responsive to the needs of both parties and to the needs of the Commission. Wollschlager v. Hy-Vee, MEOC Case No. 20142022 (Ex. Dec. re: mot. to stay 07/28/2015).
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).
While the Equal Opportunities Commission recognizes that default judgments are not favored by the courts and that it is preferable for each person to have his day in court, the Commission has a long history of holding, particularly Complainants, to the requirements to attend scheduled proceedings. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Comm. Dec. 03/12/2014), Hohlstein v. Shopko, MEOC Case No. 22381 (Ex. Dec. (11/26/96), Velazquez-Aguilu v. Abercrombie & Fitch, MEOC Case No. 03398 (Comm. Dec. 7/20/99, Ex. Dec. 03/30/99). In determining whether a party before the Commission should be excused for a failure to appear, the Commission has determined that the standard of excusable neglect should be used. Norris, supra. In this test, it is the duty of the party seeking relief for a failure to appear to demonstrate something more than mere inadvertence or the everyday reasons for one to miss an appointment. Burns v. Erbert’s & Gerbert’s Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
Respondent moved to have the case dismissed for Complainant failure to appear after Complainant both notified the Hearing Examiner shortly before a scheduled Pre-Hearing Conference of his inability to appear, then failed to appear at a rescheduled Pre-Hearing Conference at which Respondent was present. The Hearing Examiner issued an Order to Show Cause inviting the Complainant to account for his failure to appear. Complainant‘s explanation, not timely filed, that he simply forgot the conference due to overwhelming work responsibilities is a species of common negligence that falls short of the demonstrably excusable neglect standard deemed appropriate by the Commission. Norris v. Cost Cutters of Madison, MEOC Case No.20052134 (Comm. Dec. 03/12/2014). Burns v. Erbert’s & Gerbert’s Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
While the Hearing Examiner does not like to dismiss a complaint where a party appears to be contrite and promises not to miss future scheduled proceedings, the Hearing Examiner must consider the impact of a party's actions on not only the Hearing Examiner and the Commission's resources, but must also consider the effect that continued efforts to schedule proceedings will have on the other party. In this matter, the Respondent was prepared to appear for a Pre-Hearing Conference on June 15, 2015 and did appear on August 13, 2015, on which date one of the Respondent's representatives traveled from Minnesota to appear. Complainant left a message shortly before the first conference indicating that he would be unable to attend, and failed to appear or notify anyone that he would not be at the rescheduled conference. Without a secure belief that there will not be future scheduling problems, the Hearing Examiner finds that it is unfair to place additional expense upon the Respondent. Burns v. Erbert’s & Gerbert’s Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
The Division mails Notices of Pre-Hearing Conference and other similar documents "delivery confirmation." This means the U.S. Postal Service will confirm the date and time of the delivery but will not confirm any specific individual's name as recipient.
In response to an Order to Show Cause why the complaint should not be dismissed for the Complainant's failure to appear at the Pre-Hearing Conference, the Complainant alleges she did not, in fact, receive the Notice of Pre-Hearing Conference, however she seems to have received and responded to all other requests for information or notices to appear. The Hearing Examiner found that the Complainant's past history of responsiveness suggested that she had not received the Notice. The Respondent's Motion to Dismiss was denied. Miller v. Madison Pointe Senior Living, MEOD Case No. 20162043/EEOC Case No. 26B201600025.
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.
740.7 Pre-Hearing Disclosure of Witnesses and Exhibits
Prior to hearing on the issue of damages, Complainant indicated that he wished to call two expert witnesses who were not previously identified in connection with earlier proceedings regarding the question of liability. The Respondent moved to exclude their testimony, arguing that the Complainant should be limited to testimony already given. The Hearing Examiner ruled that the Complainant would be allowed to present the testimony of his expert witnesses. Damages were being determined on remand from the full Equal Opportunities Commission. This action of the Commission had altered the stance between the parties, creating new obligations to present all relevant materials on the issue of damages. The Hearing Examiner reasoned that to artificially limit the record on this issue would prevent the Commission from making a fully considered judgment. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).
The Complainant alleged that he suffered continuous racial and ethnic harassment while employed by the Respondent and that he was constructively discharged as a result. Subsequent to a Pre-Hearing Conference, the Respondent submitted a Motion to Strike the testimony of Complainant's expert witness. The Hearing Examiner found that the Respondent provided insufficient evidence to support the contention that the Complainant's expert witness should be barred from testifying. However, the Hearing Examiner agreed that the Complainant's expert should not be permitted to offer an opinion as to liability. Accordingly, the Hearing Examiner denied the Respondent's motion, but cautioned that expert testimony as to whether discrimination occurred would not be allowed. Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).
740.8 Withdrawals and Settlements
Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).
Pending before the Hearing Examiner is the Respondent's Motion to Dismiss three of the five allegations of discrimination in the complaint due to a settlement agreement entered into between the parties in this matter. The remaining two allegations of discrimination for which there was a finding of no probable cause should proceed through the review process regardless of the Hearing Examiner's determination with respect to jurisdiction. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
Complainant having alleged that Respondent discriminated against him on the basis of his age when it failed or refused to select him for a variety of positions, discouraged him from applying for at least one position, eliminated his position and terminated his employment in violation of the Madison Equal Opportunities Ordinance 39.03 (8), Respondent denied that it discriminated against the Complainant on any basis and asserted that several of the Complainant's claims should be dismissed for a lack of jurisdiction because the Complainant had entered into a settlement of certain claims with the Respondent and claims covered by that settlement should be deemed waived.
Rather than addressing the Respondent's claims regarding the alleged waiver of certain of the allegations in the complaint, the Investigator/Conciliator proceeded with an investigation and issued a no probable cause Initial Determination, which Complainant appealed to the Hearing Examiner for review.
The Hearing Examiner believes the Investigator/Conciliator erred in not transferring the complaint to the Hearing Examiner when the issue of waiver was first raised by the Respondent. Had that transfer occurred, the Hearing Examiner and the parties could have determined the proper steps for addressing the claim of a lack of jurisdiction. This Decision and Order should serve to provide the Investigator/Conciliators with guidance concerning how and when to transfer such issues to the Hearing Examiner. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
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 Hearing Examiner finds that generally speaking, the Commission has the authority and the interest to give effect to settlement agreements and waivers such as the one in the present matter.
These so-called "private settlements," at least in part, avoid the need for the terms and conditions of a compromise from becoming available to the public as would be the case where the Commission is a party; they are consistent with the Commission's desire to see disputes settled with the least expense and turmoil to the parties; and they help the Commission in its efforts to reduce strife and the other adverse affects of illegal discrimination as set forth in the Preamble to the Equal Opportunities Ordinance. See Sec. 39.03(1). In addition, such settlements should reduce the expenditure of administrative resources by the Commission, allowing for other enforcement efforts. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).
The Commission can have no interest in giving effect to a settlement agreement and waiver that is achieved by overreaching or without safeguards to assure that both sides are adequately informed of their rights and options.
While, generally speaking, the Hearing Examiner finds that the Commission has the authority and the interest to give effect to settlement agreements and waivers such as the one in the present matter, and while recognizing that such agreements are not contrary to the enforcement scheme set forth in the Ordinance, it does not necessarily follow that every such agreement can or will be given the desired preclusive effect. 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).
After the parties reached an apparent settlement based upon materials submitted by both parties, the Complainant should not be permitted to seek additional relief not included in the agreement reached by the parties, especially where the Complainant has received a substantial monetary payment. The Complainant was free to file a new complaint for alleged violations not covered by the terms of the apparent settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
The Hearing Examiner exercised his discretion to dismiss a complaint where there was an apparent settlement between the parties that the Complainant refused to honor after receiving a substantial monetary payment. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
Where the Complainant refused to execute the settlement documents and withdrawal form after the Respondent fully complied with the terms of a settlement apparently reached by the parties, the Respondent’s Motion to Dismiss was the proper method to enforce the terms of the agreement, though not signed by the Complainant. It was within the powers of the Hearing Examiner to determine that there had been substantial compliance with the terms of the settlement and that the Complaint should not be permitted to seek further claims not contemplated by the settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
740.9 Motions for Summary Judgment or Dismissal
On a motion for summary judgment, the Hearing Examiner ruled that the ordinance and rules of the Commission do not allow summary judgment except where the motion relates to jurisdiction of the Commission. When the motion goes to the merits of the case, both parties have a right to have their positions heard and determined by the Hearing Examiner once the case is certified to hearing. Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 4/5/89, on liability 7/31/89).
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).
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., MEOC Case Nos. 22440, 22441, 22447, 22448, 22449, and 22450 (Ex. Dec. 7/7/97).
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).
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).
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 discriminated against her in terms and conditions of employment on account of her race and color. A hearing on the merits was scheduled for September 21, 2010 at 9:00 AM. On September 21, the Complainant failed to appear on time. As a result, the Hearing Examiner concluded proceedings, took the Respondent's motion to dismiss under advisement, and issued an Order to Show Cause. In her answer to the Order to Show Cause, the Complainant insisted that she did not receive the Notice of Hearing issued April 8, 2010. However, the Complainant submitted a letter to the Equal Opportunities Division on May 4, 2010 acknowledging receipt of the Notice of Hearing. In the Decision and Order on Respondent's Motion to Dismiss, the Hearing Examiner concluded that the Complainant failed to set forth a good faith explanation for her belated appearance at the hearing. The Hearing Examiner dismissed the Complainant's case for failure to show cause. McCann-Smith v. St. Mary's Hospital, MEOC Case No. 20092160 (Ex. Dec. 11/3/10).
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 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).
The Hearing Examiner issued a Notice of Pre-Hearing Conference by sending the parties a Notice by certified mail. The Notice set the date for the Pre-Hearing Conference for April 29, 2011. The Complainant's Notice was returned to the Equal Opportunities Division (EOD) as "unclaimed" on May 2, 2011. Prior to the Notice's return to the EOD, the U.S. Post Office attempted to deliver it twice leaving notices of attempted delivery. The Complainant did not appear at the Pre-Hearing Conference. In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not receive the Notice of Pre-Hearing Conference. The Hearing Examiner found that the Complainant did not adequately explain her failure to retrieve the Notice from the Postal Service. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the EOD, and that the Commission does not generally reopen claims where the failure to appear is due to a Complainant's own conduct. Since the Complainant's receipt of the Notice of Pre-Hearing Conference was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Lawler v. Madison Metropolitan School District, MEOC Case No. 20102194 (Ex. Dec. 07/20/11).
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).
The Complainant asserted that the Respondent discriminated against him on account of his credit history, arrest record and conviction record when it offered him employment, but later rescinded the offer after the results of a background check. The Respondent moved to dismiss the allegations of the complaint for a lack of jurisdiction. The Respondent asserted that the alleged adverse employment decision occurred outside the City of Madison and, therefore, the Equal Opportunities Division lacks geographic jurisdiction over the complaint. In contrast, the Complainant asserted that the question was not where the employment decision took place, but rather where its effects are felt.
The Hearing Examiner found that the Complainant's primary job duties would have been performed within the City of Madison. The Hearing Examiner found that despite the Complainant's residence in Columbus, his presence in Madison to fulfill the duties of the job would have produced a positive economic impact in the City of Madison further demonstrating grounds for the Department's jurisdiction. Accordingly, the Hearing Examiner denied the Respondent's motion. Severson v. Kaplan, Inc., MEOC Case No. 20112122 (Ex. Dec. 12/22/11).
The Complainant alleged that he suffered continuous racial and ethnic harassment while employed by the Respondent and that he was constructively discharged as a result. Subsequent to a Pre-Hearing Conference, the Respondent submitted two motions: a Motion to Strike and a Motion for Summary Judgment. The Hearing Examiner found that the Respondent's Motion to Strike failed to observe the spirit of the Equal Opportunity Division (EOD)'s more relaxed approach to litigation and dismissed the motion as unduly strict. As for the Respondent's Motion for Summary Judgment, the Hearing Examiner reiterated that the EOD does not accept such motions and treated the motion as one asserting lack of jurisdiction. Ultimately, the Hearing Examiner dismissed the motion on the grounds that the Respondent failed to demonstrate that the Complainant's claims fell outside the 300-day statute of limitations under Equal Opportunities Commission Rule 3.11. Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).
The Hearing Examiner concluded that the Complainant failed to provide an adequate excuse for her non-appearance at the Pre-Hearing Conference. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the Equal Opportunities Division (EOD); and found that the Complainant should have notified the EOD of her impending absence from the mailing address she had initially provided and that she should have informed the EOD of her new mailing address in the Wisconsin Dells. Since the Complainant's receipt of the Notice was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Hamidi v. Dreamweavers, Inc., MEOC Case No. 20112071 (Ex. Dec. 08/16/12).
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 moved to have the case dismissed for Complainant failure to appear after Complainant both notified the Hearing Examiner shortly before a scheduled Pre-Hearing Conference of his inability to appear, then failed to appear at a rescheduled Pre-Hearing Conference at which Respondent was present. The Hearing Examiner issued an Order to Show Cause inviting the Complainant to account for his failure to appear. Complainant‘s explanation, not timely filed, that he simply forgot the conference due to overwhelming work responsibilities is a species of common negligence that falls short of the demonstrably excusable neglect standard deemed appropriate by the Commission. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Comm. Dec. 03/12/2014). Burns v. Erbert's & Gerbert's Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
While the Hearing Examiner does not like to dismiss a complaint where a party appears to be contrite and promises not to miss future scheduled proceedings, the Hearing Examiner must consider the impact of a party's actions on not only the Hearing Examiner and the Commission's resources, but must also consider the effect that continued efforts to schedule proceedings will have on the other party. In this matter, the Respondent was prepared to appear for a Pre-Hearing Conference on June 15, 2015 and did appear on August 13, 2015, on which date one of the Respondent's representatives travelled from Minnesota to appear. Complainant left a message shortly before the first conference indicating that he would be unable to attend, and failed to appear or notify anyone that he would not be at the rescheduled conference. Without a secure belief that there will not be future scheduling problems, the Hearing Examiner finds that it is unfair to place additional expense upon the Respondent. Burns v. Erbert's & Gerbert's Sandwich Shop, MEOC Case No. 20142208 (Ex. Dec. on mot. to dismiss: 10/07/2015).
The Hearing Examiner exercised his discretion to dismiss a complaint where there was an apparent settlement between the parties that the Complainant refused to honor after receiving a substantial monetary payment. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
Where the Complainant refused to execute the settlement documents and withdrawal form after the Respondent fully complied with the terms of a settlement apparently reached by the parties, the Respondent’s Motion to Dismiss was the proper method to enforce the terms of the agreement, though not signed by the Complainant. It was within the powers of the Hearing Examiner to determine that there had been substantial compliance with the terms of the settlement and that the Complaint should not be permitted to seek further claims not contemplated by the settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
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).
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).
Respondent moves to dismiss for lack of jurisdiction on the basis of “by association” framework by relying on old decision guidance. The Ordinance was amended to add Section 3.23(9)(c) which extended the “by association” protection to the entire ordinance and all protected classes, overruling the Ezrow decision. Brown v. Five Star Senior Living, MEOD Case No. 20172199/EEOC Case No. 26B201800011.
750 Role of the Examiner
750.1 Generally
MEOC proceedings are not necessarily covered by the procedures in Chapter 227, Wis. Stats. State ex. rel. Badger Produce v. MEOC (Matlack), supra.
An examiner has discretion to: (1) take interim motions, such as a motion to dismiss, under advisement; and (2) call witnesses to elicit and clarify evidence necessary to a clear presentation of the issues. Goldsberry v. ChemLawn, MEOC Case No. 2967 (Ex. Dec. 11/21/83);
. . . and (3) to question witnesses called by the parties. State ex. rel. Badger Produce v. MEOC (Matlack), supra.
Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).
Whereas the record in this matter is sparse and frequently confusing, neither party was represented at the time of the hearing, and neither party appeared to grasp what was expected or required for either side to prevail, the Hearing Examiner may allow an unrepresented party to present his or her claim in a manner that does not strictly follow customary procedure, but in making such allowances, the Hearing Examiner must remain mindful of his duties to properly apply the accepted standards of proof and determine whether each party has met his or her burden of proof and production. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).
The flexibility a Hearing Examiner has in the application of the burdens or in the regulation of the hearing process is always constrained by the requirements of due process, equity and fundamental fairness to both parties. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).
The Hearing Examiner may allow an unrepresented party to present his or her claim in a manner that does not strictly follow customary procedure, but in making such allowances, the Hearing Examiner must remain mindful of his duties to properly apply the accepted standards of proof and determine whether each party has met his or her burden of proof and production. In determining whether Complainant has met his burden of proof, the Hearing Examiner must weigh the evidence presented by both parties and make judgments as to the relative credibility of the parties. If the Complainant does not convince the Hearing Examiner that his version of events is more likely than not, he fails to meet his burden of proof and he fails to demonstrate discrimination. This includes a circumstance in which the Complainant's version of events is only as likely as that proposed by the Respondent. In this instance, Complainant failed to meet the burdens apportioned to him by the legal process. 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 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).
It is axiomatic that the parties in judicial and, by extension, administrative hearings have a right to a fair and impartial hearing including a fair and impartial presiding official. As the Court in Guthrie v. WERC (111 Wis. 2d 447 (1983); 331 NW 2d 331 (1983)) recognized, there is a due process consideration to administrative proceedings that permits the courts to exercise an oversight authority. In Guthrie, Justice Heffernan recognized that Rule 60 and Wis. Stats. Section 757.19(2) do not apply to regulate the conduct of administrative officials, but concluded that there is a fundamental due process right in administrative proceedings to a fair and impartial process. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
The Hearing Examiner exercised his discretion to dismiss a complaint where there was an apparent settlement between the parties that the Complainant refused to honor after receiving a substantial monetary payment. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
Where the Complainant refused to execute the settlement documents and withdrawal form after the Respondent fully complied with the terms of a settlement apparently reached by the parties, the Respondent’s Motion to Dismiss was the proper method to enforce the terms of the agreement, though not signed by the Complainant. It was within the powers of the Hearing Examiner to determine that there had been substantial compliance with the terms of the settlement and that the Complaint should not be permitted to seek further claims not contemplated by the settlement. Rogers v. CPC Logistics, Inc., MEOC Case No. 20152122 (Ex. Dec. on mot. to dismiss: 03/30/2016).
750.2 Disqualification of the Examiner
In addition to a common law due process right in Wisconsin to a fair and impartial proceeding, the Wisconsin Administrative Procedure Act (Wis. Stats. Sec. 227.46(6)) establishes a statutory right to a fair and impartial process, a right that is embodied in the Rules of the Equal Opportunities Commission at Rule 7.24. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
As the Court of Appeals noted in Peterson v. Marquette University and Orman (Docket No. 94-2178 (1995)), in order to trigger a recusal issue, any personal interest in a matter must be substantial and not remote. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
Case law establishes that "(t)here is a presumption of honesty and integrity in those serving as adjudicators in state administrative proceedings." Nu-Roc Nursing Home, Inc. v. DHSS, (200 Wis. 2d 405, 415, 546 N.W.2d 562 (Ct. App. 1996)). Nothing in the record indicates that this presumption should not be applied in the present matter. It is the Respondent's burden to overcome that presumption.
Once the Hearing Examiner has stated a belief in his or her ability to proceed in a matter without prejudice, the burden falls upon the moving party, in this instance the Respondent, to demonstrate the likelihood of potential bias. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
The Respondent's contention that a past employment relationship between the Hearing Examiner and Complainant's counsel presented the likelihood of bias was not supported by evidence indicating bias. The Respondent's contention that a reasonable person "could" find impermissible bias falls short of the proof necessary to overcome the presumption of honesty and integrity. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
In the case of judicial proceedings in Wisconsin, Wis. Stats. Sec. 757.19(2)(a) through (g) set forth the circumstances in which a judge must disqualify himself or herself from acting in any particular proceeding, and the Rule of the Supreme Court Sec. 60 sets forth standards of conduct for judicial officials (60.04(4) re: recusal). Though neither applies directly to municipal Hearing Examiners, the concepts embodied in the rules and statute cited above establish a framework to consider issues of fairness and impartiality in the administrative context. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
Where a Hearing Examiner has had a prior professional relationship with counsel for one of the parties in a pending case that involves a Hearing Examiner review of an Initial Determination of no probable cause, even if that prior relationship is remote in time and not substantial in character, it is in the best interests of avoiding any possible appearance of bias or lack of impartiality in the conduct of the case for the Hearing Examiner to disclose the prior relationship at the earliest possible time.
The Hearing Examiner was undoubtedly wrong in not notifying the parties of the potential for a question of recusal prior to acting upon the Complainant's appeal of the Initial Determination. However, failure on the part of the Hearing Examiner to make such disclosure in a timely manner does not in and of itself constitute evidence of bias or the appearance of bias, and nothing in this record demonstrates that an earlier disclosure would have resulted in any other outcome.
The Hearing Examiner promptly rectified his earlier error by making a full disclosure on the record and gave the Respondent the opportunity to make further inquiry and argument with respect to the past employment relationship of the Hearing Examiner and Complainant's counsel. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
Where a Hearing Examiner, who while in private practice some three decades previous, employed for approximately a year as a part-time secretary a person who later went to law school, for whom he thinks he may have written a letter of reference regarding her admission to the bar, and with whom he has had virtually no personal or professional contact in the intervening years, including since he took a position as a Hearing Examiner at the City of Madison's Department of Civil Rights nearly 25 years ago, knowledge of that relationship or the relationship itself does not necessarily create the type of impermissibly close contact that might give rise to legitimate concerns over the Hearing Examiner's ability to perform his duties impartially.
Given the lack of any continuing contact between the Hearing Examiner and Complainant's counsel, and the passage of time since the employment relationship's termination, the Hearing Examiner concluded that a reasonable person with knowledge of the facts and circumstances would not believe that there is any likelihood of a lack of impartiality or of favoritism towards the Complainant given the record in this matter. Schrankler v. Best Buy Stores, L.P., MEOC Case No. 20122001 (Ex. Dec. on recusal: 08/26/2014).
760 Procedures at Hearing
760.1 Parties' Right to Representation
760.2 Evidence
760.21 Generally
A petition allegedly signed by co-employees of the complainant was not admissible where none of the signatories nor the complainant testified about it at the hearing. Donahue v. MG&E, MEOC Case No. 2560 (Comm. Dec. 9/10/81, Ex. Dec. 2/9/81).
Just as adherence to a collective bargaining agreement will not necessarily shield an employer from liability for discrimination, deviation from a collective bargaining agreement will not necessarily establish that discrimination has occurred. Stanton v. Dairy Equipment, MEOC Case No. 2540 (Ex. Dec. 6/9/82).
Where a hearing has proceeded to completion, the focus in deciding the case is on whether the complainant has met his or her ultimate burden (as opposed to his or her interim burden) of proving discrimination. Sanders v. U-Haul Company of Western Wisconsin, supra, citing U.S. Postal Service Board of Governors v. Aikens, 103 S. Ct. 1478 (1983).
The Commission will not hold open the record or reopen the record to permit the taking of expert testimony on statistical evidence in a disparate treatment case when such evidence would likely be imprecise and incomplete due to a lack of comparative data and when the Complainant could have and should have been prepared to present such statistical evidence at the time of hearing. Steinbach v. Meriter Health Services, Inc., supra (Ex. Dec. 11/11/97, Ex. Dec. on motion to dismiss, 2/19/96).
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).
760.22 Admissibility
When determining whether polygraph results are admissible for a hearing certain criteria must be fulfilled. First, a written stipulation must be signed by the parties including the consent of the individual examined. Next, even if the stipulation is given the Hearing Examiner has discretion as to whether the polygraph examination results will be admitted or not. If the Hearing Examiner decides to admit the results, the individual who administered the exam is subject to cross-examination. Hargons v. Gardner Baking, MEOC Case No. 2619 (Ex. Dec. on admissibility of results of polygraph examination 12/22/80).
760.23 Matters Found Probative or Relevant
The Hearing Examiner excluded evidence of a previous complaint of discrimination against the Respondent filed with ERD on grounds of irrelevancy because the complaint had received a finding of no probable cause which had not been appealed, and because the allegations of the complaint were not similar to the allegations of Complainant's complaint. Hackett v. Russ Darrow, MEOC Case No. 3356 (Ex. Dec. 8/5/97).
Complainant, a fifty-eight (58) year old female who was terminated, filed a claim of discrimination against Respondent based on age and sex in regards to terms and conditions of employment and termination of employment. The Hearing Examiner concluded Respondent had discriminated against Complainant because her supervisor was overheard making disparaging comments relating to Complainant's age and because statistics indicated that the Respondent overwhelmingly promoted, hired and transferred individuals who were 35 years and under.
The Hearing Examiner did not find that Respondent discriminated against Complainant because of her sex despite Complainant's ability to establish a prima facie case. This was because statistics for promotions and terminations relating to sex were not as probative as compared to the age discrimination statistics. May v. State Medical Society, MEOC Case No. 2584 (Comm. Dec. 4/21/82, Ex. Dec. 10/20/81) See Painters Union Local 802 v. Madison Newspapers Inc.
760.24 Official Notice
760.25 Rebuttal Evidence
760.3 Dismissal of Complaint at Close of Complainant's Case
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's complaint was dismissed after she refused to call any witnesses or present any other evidence to be entered into the record at a hearing on the merits. Duff v. JC Penney Stores, MEOC Case No. 20032069 (Ex. Dec. 4/13/06, Comm. Dec. 8/25/06).
760.4 Failure to Appear at Hearing
Where an employer fails to appear at a prehearing or hearing, the examiner may issue findings, conclusions and order based on the complainant's prima facie case. Duarte v. Silver Dollar Bar, MEOC Case No. 3091 (Ex. Dec. 5/10/83); Carroll v. Bayview Community Center, MEOC Case No. 2491 (Ex. Dec. 9/5/80).
The Hearing Examiner dismissed the complaint when the Complainant failed to appear at the scheduled hearing. The Complainant filed an appeal based on his indigent status as a resident of California, claiming the Commission's rules requiring his presence were too strict and his failure to appear should be excused. The Commission affirmed the Hearing Examiner's finding that the Complainant's indigent status did not constitute an excuse for failure to comply with Commission rules. Hieb v. Woodman's, MEOC Case No. 21148 (Comm. Dec. 3/27/92, Ex. Dec. 10/1/91).
The complaint was dismissed when Complainant failed to appear at the hearing and failed to provide a reason for missing the appearance. The Commission upheld the decision in its entirety. Seals v. Madison Convalescent Center, MEOC Case No. 21357 (Comm. Dec. 1/9/92, Ex. Dec. 8/5/91).
The Complainant failed to appear at time of hearing due to lack of representation and failed to offer sufficient reason for his missed appearance. The Hearing Examiner found that the lack of representation at time of hearing does not constitute an emergency within the meaning of the Notice of Hearing which would require rescheduling. The Respondent made an offer of proof that there was no discrimination and the complaint was dismissed. Morris v. Madison Kipp Corp., MEOC Case No. 21302 (Ex. Dec. 11/20/92).
The Complainant's complaint of discrimination based on his national origin/ancestry was dismissed when he failed to appear at the hearing. Verdecia v. McDonald's Restaurant, MEOC Case No. 21661 (Ex. Dec. 5/2/93).
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).
The Complainant prevailed on her discrimination claim based on race and sex in regard to termination from employment. The Respondent alleged that Complainant was terminated due to violation of its telephone restrictions. The Hearing Examiner found that a White male employee was not terminated under similar circumstances. However, the Respondent was not found to have discriminated against Complainant on the basis of race or sex in failing to offer her a position performing floor care and by following her and another co-worker around their assigned areas, as she was not qualified for the floor care position, and Respondent was exercising its normal supervisory authority by checking on her work. The Respondent failed to appear at the hearing. The Complainant was awarded $16,666.80 in back pay, $2,000.00 in compensatory damages and reinstatement. Franklin v. Capital Services, MEOC Case No. 21490 (Ex. Dec. 5/14/93).
The Hearing Examiner later dismissed the complaint finding that the Complainant had not shown good cause for her failure to appear at the time of hearing. The Complainant had received notice of the hearing and had failed to request postponement prior to the time of hearing. The Commission affirmed the Hearing Examiner's decision, finding that Complainant had failed to show good cause for her failure to appear at the hearing. Foy v. Madison Rehabilitation & Convalescent Center, MEOC Case No. 21831 (Comm. Dec. 6/5/95, Ex. Dec. 8/29/94, Ex. Interim Dec. 7/5/94).
The Complainant alleged race, color, sex, age, and student status discrimination in employment against Respondent. Following a Pre-hearing conference where the Respondent did not appear and did not respond timely to a subsequent Order to Show Cause, the Hearing Examiner rejected Respondent's argument that it was confused regarding its necessary appearances, and entered a default judgment on liability against the Respondent. 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).
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 Complainant alleged that the Respondent discriminated against her in terms and conditions of employment on account of her race and color. A hearing on the merits was scheduled for September 21, 2010 at 9:00 AM. On September 21, the Complainant failed to appear on time. As a result, the Hearing Examiner concluded proceedings, took the Respondent's motion to dismiss under advisement, and issued an Order to Show Cause. In her answer to the Order to Show Cause, the Complainant insisted that she did not receive the Notice of Hearing issued April 8, 2010. However, the Complainant submitted a letter to the Equal Opportunities Division on May 4, 2010 acknowledging receipt of the Notice of Hearing. In the Decision and Order on Respondent's Motion to Dismiss, the Hearing Examiner concluded that the Complainant failed to set forth a good faith explanation for her belated appearance at the hearing. The Hearing Examiner dismissed the Complainant's case for failure to show cause. McCann-Smith v. St. Mary's Hospital, MEOC Case No. 20092160 (Ex. Dec. 11/3/10).
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).
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).
760.6 Failure to Respond or Appear
The Complainant alleged race, color, sex, age, and student status discrimination in employment against Respondent. Following a Pre-hearing conference where the Respondent did not appear and did not respond timely to a subsequent Order to Show Cause, the Hearing Examiner rejected Respondent's argument that it was confused regarding its necessary appearances, and entered a default judgment on liability against the Respondent. 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).
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).
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.
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).
760.9 Miscellaneous
Where the Commission had yet to commence an investigation, a motion to enjoin the enforcement of the Ordinance should be denied. State ex. rel. Northport Apts. v. MEOC (Carey), No. 163-429 (Dane County Cir. Ct., 7/78).
770 Record of Hearing, Decisions and Orders
770.1 Hearing Record; Transcripts
770.2 Proposed Findings of Fact, Conclusions of Law and Orders
770.3 Delay in Issuance of Decision
770.4 Miscellaneous
In granting Respondent's motion to dismiss the Complainant's appeal, the Commission relied upon the mandatory language and specific terms in the Briefing Schedule, and determined that Complainant's failure to file an appellate brief warranted dismissal of the Complainant's appeal. The Commission noted that while the mandatory language of the Briefing Schedule warranted a harsh remedy, the Complainant was not afforded any latitude in responding because he was represented by counsel who should have known of the effect of the mandatory language. Johnson v. Webcrafters, MEOC Case No. 20042097 (Comm. Dec. 8/25/06).
780 Reconsideration, Rehearing
After the Commission adopted the Hearing Examiner's ruling that the Commission was without jurisdiction for the allegations in Complainant's case, the Complainant filed a request for the Commission to reconsider its final decision and order. The Commission concluded that Complainant was given a full opportunity to present his position and that the Commission determined that it reviewed the record in its entirety. As a result, the Commission denied Complainant's request to reconsider its final decision and order. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. on request to reconsider final order 9/27/99).
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).
790 Appeal and Review
790.1 Decisions Appealable to the Commission
It is for the Commission and not a reviewing court to judge the credibility of witnesses. State ex. rel. Badger Produce v. MEOC (Matlack), supra.
Following a Decision and Interim Order wherein the Hearing Examiner entered a default judgment on liability, the Respondent appealed to the Commission. Utilizing its discretion, the Commission determined that it would address Respondent's appeal on liability once the issue of damages was resolved, thus reviewing at a later date the complete record in the case. The Commission stayed Respondent's appeal and remanded the complaint to the Hearing Examiner for proceedings on damages. 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).
790.2 Procedures for Review by the Commission
In granting Respondent's motion to dismiss the Complainant's appeal, the Commission relied upon the mandatory language and specific terms in the Briefing Schedule, and determined that Complainant's failure to file an appellate brief warranted dismissal of the Complainant's appeal. The Commission noted that while the mandatory language of the Briefing Schedule warranted a harsh remedy, the Complainant was not afforded any latitude in responding because he was represented by counsel who should have known of the effect of the mandatory language. Johnson v. Webcrafters, MEOC Case No. 20042097 (Comm. Dec. 8/25/06).
Following a Decision and Interim Order wherein the Hearing Examiner entered a default judgment on liability, the Respondent appealed to the Commission. Utilizing its discretion, the Commission determined that it would address Respondent's appeal on liability once the issue of damages was resolved, thus reviewing at a later date the complete record in the case. The Commission stayed Respondent's appeal and remanded the complaint to the Hearing Examiner for proceedings on damages. 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).
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 Appeals Committee for the Equal Opportunities Commission found that the Respondent did not timely file briefing submissions for their appeal of the Hearing Examiner’s Recommended Findings of Fact, Conclusions of Law, and Order, and therefore the Complainant’s Motion to Dismiss the Appeal was granted. McGhee v. YMCA of Dane County, MEOD Case No. 20142153/EEOC Case No. 26B201400057.
790.3 Requirement that the Commission Consult with the Examiner Regarding Credibility Impressions
Due process requires municipal agencies to adequately explain reversals of Hearing Examiner's findings of fact . . . and where credibility of witnesses is an issue due process requires:
That the record affirmatively show that the commission had the benefit of the examiner's personal impressions of the material witnesses . . . and the Hearing Examiner's personal impressions may take the form of either adequate notes of the examiner or personal consultation with him. Laboratory Consulting, Inc. v. MEOC, et al., supra.
In a case where the Commission ruled that Complainant had been retaliated against both during her employment and in regard to her discharge, on appeal the Circuit Court remanded the case to the Commission to consider whether the Commission's resolution of credibility issues required that it consult with the Hearing Examiner. On remand, the Commission again found that the Respondent was liable to the Complainant for having discriminated against her in violation of the ordinance, but modified and reduced its back pay award and its order for reinstatement, determining that though the Respondent did retaliate, the Complainant would likely have been fired as a result of poor performance within a short time. The Commission also awarded Complainant interest at the rate of 12% on her back pay award. The Commission rejected the Complainant's various age discrimination claims, but initially ruled the Complainant had been retaliated against both during her employment and in regard to her discharge. She was awarded reinstatement and full back pay (among other remedies). Hilgers v. Laboratory Consulting, Inc., MEOC Case No. 20277 (Comm. Final Order on Remand 03/29/89; aff'd Case No. 87-2266 (Ct. App. 12/22/1988); remanded Case No. 86 CV 6488 (Dane County Cir. Ct. 08/24/87); Comm. Dec. on Remand 11/10/86; (not available) Case No. 85CV 6300 (Dane County Cir. Ct. 8/20/86); rev'd Comm. Dec. 11/18/85; Ex. Recommended Decis. 07/12/85; Ex. Interim Recommended Decis. 04/11/85).
790.4 Judicial Review
The Court will review that factual evidence accepted by the Commission as credible to determine if it is substantially related to the finding or if a reasonable person might reach the decision that the Commission did. Madison Gen. Hosp. v. MEOC (Dayton), No. 81-CV-1925 (Dane County Cir. Ct., 7/9/82).
Where the Commission had remanded one portion of a case back to the agency Hearing Examiner for further review but had dismissed another portion of the case, the portion that was dismissed was ripe for appeal and a petition for review of that (dismissed) portion should have been filed within 30 days of receipt of the Commission decision. Sec. 68.13(1), Wis. Stats. Maxson v. MEOC (Means Servs.), No. 84 CV 4150 (Dane County Cir. Ct., 7/18/85). [NO LINK AVAILABLE]
The scope of an appellate court's review of a certiorari decision is the same as a trial court's (in a case appealed to the court originating from a municipal administrative agency decision). In certiorari review, the reviewing court is limited to determining:
- whether the Commission kept within its jurisdiction;
- whether it acted according to law;
- whether its actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and
- whether the evidence was such that it might reasonably make the order or determination in question. Fed. Rural Elec. Ins. v. MEOC, et al., 131 Wis. 2d. 189 (1986)
To determine whether the Commission acted according to law required the court to construe the Madison Equal Opportunities Ordinance and apply the ordinance to the facts . . . and the court must also determine whether the evidence was such that the Commission might reasonably make its determination and whether that determination is supported by substantial evidence in the record. Fed. Rural Elec. Ins. v. MEOC, et al., supra
The Commission's findings of fact will be sustained if any reasonable view of the evidence will support them. State ex. rel. Badger Produce v. MEOC (Matlack), supra.
In a case where the Commission ruled that Complainant had been discriminated against on the basis of his physical appearance and had been retaliated against, the Respondent appealed the Commission's Order and the Complainant sought to intervene in the Circuit Court's review. The Circuit Court denied the Complainant's motion to intervene and the Complainant appealed that denial. The Court of Appeals affirmed the Circuit Court's decision, specifically finding that municipal administrative decisions must be appealed by writ of certiorari within 30 days of their issuance and that the Complainant had failed to appeal the Commission's decision in a timely manner. The Court of Appeals also found that the Commission could adequately represent the Complainant's interests in the Circuit Court review, and that the Complainant's participation was not mandatory, finding that the Complainant's participation in the appeal was likely to generate unnecessary delay. The Court of Appeals found that the Circuit Court had properly exercised its discretion in denying Complainant's permissive intervention.
The Circuit Court determined that the Commission had exceeded its authority in finding discrimination both on the basis of physical appearance and retaliation. The Court determined that the Respondent had acted on its belief that the Complainant's conduct was contrary to the earlier settlement agreement. This conduct included the Complainant's wearing makeup and jewelry while on the Respondent's premises. The Court reasoned that because the Respondent's action was motivated by the Complainant's conduct and not by discrimination or retaliation, the complaint was beyond the authority of the Commission. The Court ordered the complaint dismissed.
The Commission did not appeal the Circuit Court decision. However, the Complainant sought to intervene for purposes of appealing the Circuit Court decision. The Court of Appeals adopted the Circuit Court's decision and summarily dismissed the complaint. Maxwell v. Union Cab Cooperative, MEOC Case No. 21028 (Comm. Dec. 7/10/92, Ex. Dec. 12/31/91); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, 95-0190 (Ct. App. 9/20/95); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, 93-0657 (Ct. App. 3/24/94); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison, 92 CV 3260 (Dane County Cir. Ct. 12/1/94).
The Court will not re-examine Commission determinations of the weight and credibility of evidence. Magna Publishing v. MEOC (Ashford), No. 00-CV-2908 (Dane County Cir. Ct., 7/26/01).
Appeals from a Commission Decision to Dane County Circuit Court must follow correct procedure or else they will be dismissed. A certiorari action, pursuant to Wis. Stats. 68.13(1) is the proper avenue for appealing a Commission decision. Personal service must be made on either the MEOC or the City of Madison when appealing a Commission's final decision. Strict compliance with procedural statutes is necessary to obtain jurisdiction to review Commission decisions. Schenk v. MEOC, et al., No. 02-CV-885 (Dane Cty. Cir. Ct. 6/21/02).
The MEOC found that Respondent discriminated against Complainant when it terminated Complainant for violating the company dress code, which prohibited eyebrow rings. Respondent appealed the decision, and the Dane County Circuit Court reversed the discrimination finding. Complainant and the MEOC appealed, contending that because the MEOC Decision and Final Order contemplated further proceedings to establish damages, it was not final and appealable within the meaning of section 68.13(1) of the Wisconsin Statutes and section 3.23(10)(c)4 of the Madison General Ordinances. The Court of Appeals held that the legislature plainly defined "final determination" as one resulting from some prescribed process rather than one contemplating no further proceedings. Alternatively, the Court held that common law certiorari was available to Respondent, notwithstanding whether Respondent specifically sought review by common law certiorari. 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).
790.9 Miscellaneous
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).