642 Complainant’s burden of proof

Generally a Complainant must prove more than a prima facie case in order to establish probable cause. However, if the Respondent chooses not to present any evidence of a legitimate, nondiscriminatory reason for its actions to rebut the Complainant’s prima facie case, a finding of probable cause will result. Vaserman v. Lakeshore Med. Clinic Ltd. (LIRC, 02/28/14).

The Complainant wondered why one decision in her case found probable cause, while a second decision found no discrimination on the merits. The burden of proof at the probable cause hearing was lower than at the hearing on the merits, the evidence introduced at the two hearings was not identical, and two different administrative law judges were involved in making the decisions. Robbins v. Extendicare Health Serv., Inc. (LIRC, 02/13/14) (unavailable online).

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. Sec. 218.02(8), Wis. Admin. Code, provides that probable cause means that there is “a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person to believe, that a violation of the Act probably has been or is being committed.” The Complainant has the burden to show this reasonable ground for belief that discrimination occurred. Even if some evidence of discrimination exists in a case, it might still be concluded that (based upon all of the evidence produced at the hearing) it was not probable that discrimination occurred. Barnes v. Miller Brewing Co. (LIRC, 05/14/12).

Although the standard of proof at a probable cause hearing is low, the burden of showing probable cause rests on the Complainant. Even if some evidence of discrimination exists in a case, the trier of fact might still conclude that, based upon all the evidence produced at the hearing, it was not probable that discrimination occurred. The probable cause concept focuses on “probabilities” and not “possibilities.” Oler v. TTM Technologies (LIRC, 06/23/11).

A Complainant is generally required to do more than establish a prima facie case in order to sustain his or her burden of establishing probable cause to believe that unlawful discrimination has occurred. However, absent the Respondent’s presentation of evidence of a legitimate, non-discriminatory reason for the Complainant’s discharge, or the presentation of any evidence to rebut the Complainant’s testimony, this is not the case. A finding of probable cause results where the Respondent has offered no evidence at the hearing to rebut the Complainant’s prima facie case. Nevels-Ealy v. County of Milwaukee (LIRC, 03/14/08).

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. It is incorrect that in a probable cause proceeding disputes as to facts should be resolved in favor of the Complainant. On the contrary, factual disputes are to be resolved by assessing and weighing the evidence offered by the parties at hearing. Ford v. Lynn’s Hallmark (LIRC, 06/27/05).

The Complainant’s burden is to prove that probable cause exists to believe that discrimination occurred as alleged in the complaint. The Complainant’s argument that he should prevail if any credible evidence exists to support his claim is rejected. Josellis v. Pace Indus. (LIRC, 08/31/04).

Though the standard of proof at a probable cause hearing is low, the burden of showing probable cause rests with the Complainant. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).

The probable cause standard should be less stringent than, or, at the very most equivalent to, that required to set forth a prima facie case of employment discrimination. At the probable cause stage, the very most that a Complainant should be required to do is to set forth that which would be required to make out a prima facie case. Gentilli v. LIRC (Dane Co. Cir. Ct. 03/30/90).

Although the Complainant claimed she was replaced by a younger employee, there was no basis for her testimony. Complainant showed no foundation to establish that she was in a position to know who replaced her. Therefore, a finding of no probable cause was appropriate. Hintz v. Flambeau Med. Ctr. (LIRC, 08/09/89).

The mere articulation of a bare prima facie case is generally not adequate to establish probable cause except in cases in which the employer has offered no evidence to rebut that prima facie case. Saltarikos v. Charter Wire Corp. (LIRC, 07/31/89).

In determining whether there is probable cause, a less rigorous standard of proof is involved. However, the McDonnell-Douglas framework is still a useful analytical tool. Larson v. DILHR (Wis. Pers. Comm'n, 01/22/89).

Sec. 227.08, Stats., implies that the Commission may consider only evidence having reasonable probative value when determining whether there is probable cause to believe a violation of the Fair Employment Act has occurred. In this case, the Complainant could not remember whether she had complained about the alleged sexual harassment. Complainant submitted her notes at the hearing, but the notes did not support a finding that she had informed the Respondent about the alleged sexual harassment. Accordingly, the Commission concluded that a reasonable person could not believe that Complainant had informed the Respondent about the alleged sexual harassment. Schoenhofen v. Alcoholism & Drug Council of Waupaca County (LIRC, 09/21/87).

The Complainant has the burden to show probable cause to believe discrimination occurred as alleged. This is a lesser burden of proof than the burden applicable to Complainants in a hearing on the merits. Under the Wisconsin Fair Employment Act, the initial burden of proof is on the Complainant to show a prima facie case of discrimination. If Complainant meets this burden, the Respondent then has the burden of articulating a non-discriminatory reason for the actions taken which the Complainant may, in turn, attempt to show was a pretext for discrimination. McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 5 FEP Cases 965 (1973) and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 25 FEP Cases 113 (1981). A similar analysis is appropriate at a probable cause hearing; however, the standard by which the evidence is measured is not as demanding as that used at a hearing on the merits. Fluekiger v. Mathy Constr. Co. (LIRC, 05/14/87).

The Complainant’s burden of proof is less in a probable cause proceeding than it would be at a hearing on the merits. In a probable cause proceeding the Complainant’s burden is to show a reasonable ground for belief, supported by facts and circumstances strong enough in themselves to warrant a prudent person in the belief, that discrimination occurred. Herling v. Dealers Office Equip. (LIRC, 02/18/87).

The Personnel Commission rejects Complainant’s argument that the evidentiary threshold necessary to establish probable cause is quite minimal, and that any and all facts giving rise to competing inferences should be resolved in the Complainant’s favor. The Commission notes that this is similar to the “substantial evidence” standard used by courts in judicial review, and if applied as the standard for determining probable cause would not meet the clear purpose of the legislature in establishing a probable cause standard, which was to provide a screening device to sort out cases lacking a certain threshold degree of substance. However, the Commission also rejects the Respondent's approach that a preponderance of the evidence standard should be applied. The Commission concludes that probable cause requires a degree of proof that is less demanding than the preponderance standard applicable on the merits, but more demanding than the standard urged by the Complainant. The Commission agrees with the characterization of probable cause “as being somewhere between preponderance and suspicion.” Winters v. DOT (Wis. Pers. Comm’n, 09/04/86).

In a probable cause proceeding the evidentiary standard applied is not as rigorous as that which is required at a hearing on the merits. Nevertheless, it is useful to use the McDonnell-Douglas format in analyzing the record. Mitchell v. UW-Milwaukee (Wis. Pers. Comm’n, 04/04/86).

The Commission is not limited at the probable cause hearing to merely examining whether the petitioner has presented evidence, which, if believed, would be sufficient to support his claim. Rather, the test is whether the Commission believes, upon its examination of the evidence and its review of the credibility of the witnesses, that discrimination has probably occurred. McLester v. Wis. Pers. Comm’n, (Ct. App., Dist. III, unpublished opinion, 03/12/85).

The question in a probable cause proceeding is whether there is any credible evidence in the record sufficient to support a claim that the Complainant was discriminated against. If there is such evidence, even if it is disputed or outweighed by contrary evidence, a finding of probable cause would have to be made. Christner v. LIRC (Dane Co. Cir. Ct. 06/30/78).

At a hearing on the issue of probable cause, a Complainant is not held to the same standard which applies to a full hearing on the merits. Lienhardt v. Pacon Corp. (LIRC, 01/21/76).

A hearsay statement alone is insufficient competent evidence to support a probable cause finding that discrimination has been committed. Hunt v. City of Madison (DILHR, 02/11/75).