113.9 Miscellaneous

The Complainant’s petition was dismissed where the commission was the named Respondent but had no actual or potential employment relationship with the Complainant. (The Complainant brought the discrimination claim against the commission based on its decision to uphold a dismissal in a separate case.) Further, the commission is unable to adjudicate a petition for review of a complaint against itself without the appearance of a conflict of interest. Marigny v. State of Wis. – LIRC (LIRC, 09/29/23).

The rationale that the Supreme Court relied upon in City of Madison v. DWD, 262 Wis. 2d 652, 664 N.W.2d 584 (2003), to find that the Madison Police and Fire Commission has exclusive jurisdiction to hear complaints of discriminatory discharge or discipline under sec. 62.13(5), Stats., applies equally to the treatment of WFEA claims arising out of actions by the Milwaukee Police and Fire Commission under sec. 62.50(11), Stats. Section 62.50, Stats., which applies to police and fire departments in first-class cities, contains a provision that is strikingly similar to sec. 62.13(5), Stats., which was the provision discussed by the Supreme Court in City of Madison. Section 62.50(11), Stats., provides that no member of a police or fire department may be discharged except for just cause and after a trial, at which the officer may present evidence, cross-examine witnesses, and be represented by counsel. As in the City of Madison case, “just cause” is determined by reference to seven factors, including whether the chief is applying the rule or order fairly and without discrimination against the subordinate. Similarly, the statute provides that the police officer or firefighter can appeal the decision of the Police and Fire Commission (“PFC”) to circuit court. The statute further provides that, if the decision of the PFC is reversed by the court, the officer will be reinstated to his or her former position. If, on the other hand, the decision is sustained, it shall be final and conclusive. Koch v. City of Milwaukee (LIRC, 06/09/11).

The mere fact that two companies share a relationship with a parent company does not make them a joint employer for employment discrimination complaint purposes. In this case, each company under the umbrella of the parent company had its own officers and board and operated on a stand-alone basis. The Complainant failed to present sufficient evidence to show that the two companies essentially made joint employment decisions such that they should be subject to joint employment discrimination liability. Jackson v. LIRC (Ct. App., Dist. IV, 06/13/08, summary decision).

The Respondent’s claim that its common council decisions are immune from scrutiny is refuted by the Wisconsin Fair Employment Act, which defines the entities included and excluded from its coverage as follows:

• (6)(a) “Employer” means the state and each agency of the state and, except as provided in par. (b), any other person engaging in any activity, enterprise or business employing at least one individual. In this subsection, “agency” means an office, department, independent agency, authority, institution, association, a society or other body in state government created or authorized to be created by the constitution or any law, including the legislature and the courts. (Emphasis added).

It is doubtful that the legislature would specifically include itself as a body covered by the Act’s anti-discrimination provisions yet exclude municipal common councils from the Act’s coverage. Gunty v. City of Waukesha (LIRC, 03/29/07).

The Department of Workforce Development does not have jurisdiction over a WFEA claim arising out of an action by a police and fire commission under sec. 62.13(5), Stats. However, while it is appropriate to dismiss the Complainant’s WFEA-based discrimination claims, the order of dismissal does not apply to a Complainant’s discrimination claims under federal law. Engel v. Town of Brookfield (LIRC, 05/25/04).

The Department of Workforce Development may not take jurisdiction over a WFEA complaint arising out of a decision of a police and fire commission. City of Madison v. DWD, 2003 WI 76, 262 Wis. 2d 652, 664 N.W.2d 584.

The Complainant’s claim of discrimination involving alleged discriminatory action by the Ho-Chunk Casino that took place entirely on tribal lands was properly dismissed for lack of jurisdiction. State courts (and, consequently, state administrative forums) have no jurisdiction over Indian entities. The Supreme Court of the United States has determined that state court jurisdiction over tribal activities that took place within Indian country would undermine the Congressional aim of encouraging self-government and self-determination by the dependent tribes and “infringe on the rights of the Indians to govern themselves.” (Citing Williams v. Lee, 358 US 217, 223 (1959).) Kocian v. Ho-Chunk Casino (LIRC, 03/26/04).

A complaint filed against a hotel and convention center which is owned by the Ho-Chunk Nation was properly dismissed for the following reasons: (1) Indian Tribes are immune from suit under the Wisconsin Fair Employment Act because of their sovereign status; (2) business entities owned and operated by Indian Tribes enjoy the same immunity the Indian Tribe itself does; (3) where a claim arises entirely on tribal land, this gives the Indian Tribe another defense (lack of subject matter jurisdiction); (4) the Complainant had a claim pending in the tribal courts and the U.S. courts have long held that for the sake of comity matters should not be prosecuted in U.S. courts while jurisdiction lies in tribal courts and should not be relitigated if resolved in those courts. Cichowski v. Ho-Chunk Hotel & Convention Ctr. (LIRC, 08/17/01).

The determination of eligibility for unemployment benefits and the calculation of the amount of those benefits does not affect employment or employment opportunities in the manner contemplated in sec. 111.322, Stats. Therefore, a complaint alleging that the Unemployment Insurance Division had discriminated against the Complainant on the basis of age was properly dismissed for lack of jurisdiction. Moreover, even if the determination of benefit eligibility could be said to fall within the purview of the Wisconsin Fair Employment Act, complaints of discrimination against state agencies are to be filed with the Personnel Commission and are not within the jurisdiction of the Equal Rights Division. Sholtes v. Unemployment Ins. (LIRC, 01/19/01).

The Equal Rights Division did not have jurisdiction over a case which involved an action by a person acting as an agent of a state agency with respect to employment with a State agency. Such issues are under the jurisdiction of the Personnel Commission. Greffin v. Wis. Power & Light (LIRC, 12/18/96).

The State of Wisconsin should not be separately designated as a Respondent in the caption of Equal Rights Division proceedings in which an agency of the State of Wisconsin is already a Respondent. Johnson v. Cent. Reg’l Dental Testing Serv. (LIRC, 02/29/96).

The concept of mandatory joinder is not recognized in proceedings before the Equal Rights Division. Johnson v. Cent. Reg’l Dental Testing Serv. (LIRC, 02/29/96).

The Equal Rights Division does not have jurisdiction over Fort McCoy because it is a “federal reservation” within which the federal government has exclusive jurisdiction. A federal military reservation is in legal contemplation not actually a part of the state in which it is located. Hatfield v. Aurora Bldg. Maint. (LIRC, 11/17/95).

Where liability rests with the predecessor or the successor in the case of a transfer of ownership of the Respondent depends on a number of factors, including (1) whether the successor had prior notice of the claim against the predecessor; (2) whether the predecessor is able, or was able prior to the purchase, to provide the relief requested; and (3) whether there has been a sufficient continuity in the business operations of the predecessor and the successor. The tests presented by successorship cases are fact specific and must be evaluated in light of the facts of each case and the particular legal obligations at issue. Sinclair v. Mike’s Towne & Country(LIRC, 10/15/93).

The complaint was properly dismissed where it named “the Sampson Jewish Community Center,” a building at which the Complainant worked, as the Respondent. The named Respondent is neither an employer nor an individual covered under the Wisconsin Fair Employment Act. Reed v. Sampson Jewish Cmty Ctr. (LIRC, 05/21/93).

The Wisconsin Fair Employment Act does not provide any right to file a discrimination complaint against staff members of the Equal Rights Division. Thompson v. Milwaukee Bd. of Sch. Dir. (LIRC, 03/26/93).

The state may exercise jurisdiction over an Indian tribe under the Wisconsin Fair Employment Act only if the tribe or the state legislature expressly waived tribal sovereign immunity from such suits. Public Law 280 does not abolish tribal immunity from state jurisdiction. Although tribal officials do not have the same immunity as the tribe itself, tribal immunity does extend to tribal officials when acting in their official capacity and within the scope of their authority. In addition, where the relief sought would operate directly against the tribe, unless the suit would in substance be against the tribe rather than against the tribal official, tribal immunity applies. Ninham v. Oneida Tribe of Indians of Wis. (LIRC, 06/25/91).

The Wisconsin Winnebago Business Committee, the duly authorized governing body of the Wisconsin Winnebago Indian Tribe, possesses sovereign immunity from suit. State ex rel. Wis. Winnebago Bus. Comm. v. DILHR (Dane Co. Cir. Court, 04/16/90).

The Personnel Commission lacked subject matter jurisdiction over a complaint against the Personnel Commission and the Equal Rights Division of the Department of Industry, Labor and Human Relations which alleged that those agencies discriminated against Complainant by failing to expeditiously process complaints against third parties concerning discrimination. Ozanne v. Pers. Comm'n (Wis. Pers. Comm'n, 12/18/87).

A Police and Fire Commission is a statutorily-created body which is totally independent from the police department. The Police and Fire Commission has been granted the express statutory authority to remove police officers. The Equal Rights Division inappropriately concluded that a police officer’s discharge was retaliation for having filed a previous discrimination complaint because the chief of police and a management labor relations consultant acted with a retaliatory motive. Neither the chief of police nor the management labor relations consultant has the authority to discharge a police officer. It is the exclusive role of the Police and Fire Commission to determine whether a police officer should be discharged. City of River Falls Police Dept. v. LIRC (Pierce Co. Cir. Ct., 01/30/86).

The Personnel Commission has no jurisdiction to consider a Complainant's allegation that the Personnel Commission itself had discriminated against the Complainant in violation of the law by delaying the investigation of a charge of discrimination. Poole v. DILHR (Wis. Pers. Comm’n, 12/06/85).

A joint management-labor apprenticeship and training committee was neither an employer, a labor organization, a licensing agency, nor a person within the meaning of the Wisconsin Fair Employment Act. Flowers v. South Central Wis. Joint Apprenticeship & Training Comm. (LIRC, 06/21/85).