641 Definition of probable cause

The critical question for the commission when reviewing a probable cause decision is whether there is more than a suspicion that discrimination occurred. Tohl v. CUSA ES, LLC (LIRC, 11/21/13).

The concept of probable cause focuses on probability and not on possibilities. In contrast, the concept of the prima facie case focuses on inference and presumption, which are closer to possibility and suspicion than to probability. Therefore, a Complainant is required to establish more than a prima facie case in order to sustain the burden of showing probable cause to believe that discrimination has occurred as alleged. Barnes v. Miller Brewing Co. (LIRC, 05/14/12)

A Complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred. The conclusion of the circuit court in the case of Gentilli v. LIRC (Dane Co. Cir. Ct., 03/30/90) that at the probable cause stage the most a Complainant should be required to do is set forth that which would be required to make a prima facie case, does not establish binding precedent or authority. Braunschweig v. SSG Corp. (LIRC, 08/31/06).

The concept of probable cause focuses on probabilities rather than possibilities, and it lies somewhere between preponderance of the evidence and suspicion. The concept of the prima facie case, however, focuses on inference and presumption, which are more closely akin to possibility and suspicion than to probability. As a result, the Complainant is required to establish more than a prima facie case in order to sustain his burden to show probable cause to believe that discrimination has occurred as alleged. In this case, although the Complainant established a prima facie case of discrimination, he did not show that the legitimate, non-discriminatory reason offered by the Respondent for his discharge was probably a pretext for age discrimination. Stichmann v. Valley Health Care Ctr (LIRC, 06/14/05).

It was appropriate to assess the credibility of the Respondent’s director of human resources at a probable cause hearing where the issue was whether his awareness of the Complainant’s medical condition was a determining factor in his decision to terminate the Complainant. Roncaglione v. Peterson Builders (LIRC, 08/11/93).

In Boldt v. LIRC, 173 Wis. 2d 469, 469 N.W.2d 676 (Ct. App. 1992), the Court of Appeals explained that establishing probable cause is not a preponderance of the evidence test; however, the Court suggested that the Complainant’s burden was to prove that discrimination “probably” occurred. Roncaglione v. Peterson Builders (LIRC, 08/11/93).

The concept set out in sec. Ind 88.01(8), Wis. Adm. Code, focuses on probabilities, not possibilities. The rule adopts the viewpoint of a prudent, not a speculative, imaginative or partisan person. As such, it contemplates ordinary, everyday concepts of cause and effect upon which reasonable persons act. It is LIRC’s duty to consider the facts of each case and determine whether they meet this fluid concept. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).

Probable cause cases are to be analyzed under the McDonnell-Douglas framework, but require a quantum of proof that is less than that of a case on the merits. Frierson v. Ashea Indus. Sys. (LIRC, 04/06/90).

The probable cause standard is primarily a screening mechanism. Gentilli v. LIRC (Badger Coaches) (Dane Co. Cir. Ct., 03/30/90).

Probable cause is somewhere between preponderance and suspicion. Hintz v. Flambeau Med. Ctr. (LIRC, 08/09/89).

At a probable cause hearing, Complainants are permitted to present their case before a quasi-judicial officer and receive a more exacting scrutiny of the evidence than would otherwise be available in the normal investigative process. Lienhardt v. Pacon (DILHR, 01/21/76).

Concepts such as “burden of proof” and “probable cause” are often elusive and incapable of being precisely defined. Street v. DeLaval Separator Co. (DILHR, 06/27/75).

The purpose of a no probable cause hearing is to afford the complaining party an opportunity to present evidence sufficient to demonstrate probable cause to believe that discrimination has occurred, and it is not an opportunity to review the initial determination or the investigative technique of the field representative. Street v. DeLaval Separator Co. (DILHR, 06/27/75).

Probable cause does not mean proof of discrimination to a reasonable certainty, but proof within a reasonable probability that a full hearing will establish discrimination to a reasonable certainty. Marshall v. Indus. Comm’n (Dane Co. Cir. Ct., 02/23/67).