714 Amendment of complaint, relation back to original complaint

The Complainant failed to establish good cause for waiting until the day of hearing to attempt to amend his complaint to include a constructive discharge claim where the Complainant argued that: (1) his constructive discharge claim was implicit, (2) he made the investigator aware that he had retired earlier than planned, and (3) the Respondent had adequate notice that he intended to pursue this claim. The Complainant failed to make any mention of constructive discharge in his complaint. Moreover, the initial determination only addressed the issue of reasonable accommodation and should have made the Complainant well aware that the Department did not construe his complaint as encompassing a constructive discharge claim. Nevertheless, the Complainant did not attempt to amend his complaint, even after the hearing notice was issued indicating that the only issue for hearing was whether the Respondent violated the law by refusing to accommodate a disability. Satorius v. DOC (LIRC, 01/31/17).

Under the circumstances, the Complainant had ample opportunity prior to the conclusion of the evidentiary hearing to amend his complaint to include a claim of retaliation; failure to move to amend prior to the close of the evidentiary record amounted to a waiver of the right to assert a retaliatory discharge claim. Dent v. RJ Wood Indus., Inc. (LIRC, 03/28/14).

The Complainant’s proposed amended complaint contained allegations of discrimination in compensation. These allegations did not rise out of the same facts and circumstances in her original complaint, which alleged discrimination in discipline, suspension and discharge. Therefore, the amended complaint did not relate back to the original complaint for statute of limitations purposes. The amended complaint was filed more than 300 days after the alleged discrimination, and it was appropriately dismissed. Sallis v. Aurora Health Care (LIRC, 12/03/10).

The provisions of sec. 802.09(2), Stats., relating to “Amendments to Conform to the Evidence” do not apply to hearings on complaints under the Wisconsin Fair Employment Act. Hanson v. DOT (LIRC, 06/14/05).

It is too late to amend a complaint once the evidence has been presented at hearing and the decision issued. Hosey v. West Allis Mem’l Hosp. (LIRC, 07/08/98).

The amended complaint, which named an additional Respondent, was filed well beyond the 300-day statute of limitations. The amended complaint could not relate back to any earlier, timely complaint because no such complaint had ever been filed against that particular Respondent. Pulvermacher v. Regency Partners (LIRC, 04/28/93).

When, during the course of investigation, it becomes apparent that a Complainant is alleging a second basis of discrimination which is not clearly identified by the complaint, the proper procedure is that the Complainant should be advised to file an amended complaint pursuant to sec. 88.06(2), Wis. Admin. Code. Gartner v. Hilldale, Inc. (LIRC, 05/12/92). [Ed. note: sec. 88.06(2), Wis. Admin. Code, has been replaced by sec. DWD 218.06(2), Wis. Admin. Code.]

The Complainant’s proposed amended complaint alleging that he was constructively discharged subsequent to the date he filed his original complaint was untimely because it did not relate back to the original complaint, which contained allegations of promotion and demotion discrimination. The constructive discharge claim was comprised of an entirely different set of facts and circumstances than those set forth in the original complaint. James v. Associated Schools, Inc. (LIRC, 11/27/91).

The Complainant failed to establish good cause for failing to amend his complaint at least ten days prior to the hearing where the Complainant argued that the Respondent had adequate notice that he intended to pursue a claim of constructive discharge, even though that claim was not included in the original complaint, which alleged discrimination with respect to promotion and demotion. There was nothing in the Respondent’s conduct which can be said to have caused it to have acquiesced in the prosecution against it of the claim of constructive discharge. In any event, it is difficult to see how a waiver theory could justify the Equal Rights Division in conducting a hearing on an issue as to which no complaint had ever been filed. James v. Associated Schools, Inc. (LIRC, 11/27/91).

Where the record at hearing discloses a possible violation of the Wisconsin Fair Employment Act which was not included in the complaint, the Department may wish to consider the significance of sec. Ind 88.06(2), Wis. Admin. Code, which provides that the Department may advise a Complainant to amend the complaint if it appears that the Respondent may have engaged in discrimination other than that alleged in the complaint. Joseph v. Cent. Parking (LIRC, 08/20/90). [Ed. note: sec. Ind. 88.06(2), Wis. Admin. Code, has been replaced by sec. DWD 218.06(2), Wis. Admin. Code.]

Where the allegations of a proposed amended complaint arise out of the same facts and circumstances alleged in an earlier, timely filed, complaint the proposed amended complaint will be deemed to relate back to the earlier complaint for statute of limitations purposes. Wilson v. Coplan’s Appliance (LIRC, 10/10/89).

An amended complaint of handicap discrimination concerning events occurring “during the course of the Complainant’s employment” and “on or about June 1986” did not relate back to the original complaint where the original complaint concerned a claim of race discrimination based on Complainant’s discharge in December 1986. Wilson v. Coplan’s Appliance (LIRC, 10/10/89).

The Complainant was given leave to amend his complaint because the amendment, which was an allegation that his discharge was based on his handicap, arose from the same facts and circumstances as the original complaint, which alleged that the Complainant's discharge was based on his race. Wilson v. Coplan's Appliance (LIRC, 10/10/89).

The Complainant was not allowed to amend the complaint to include additional allegations after the Initial Determination had been issued where the Complainant had already amended his complaint once and gave no good reason why he had not made his amendment earlier. Ferrill v. DHSS (Wis. Pers. Comm'n, 08/24/89)

Where it is unclear from the complaint and the amended complaint whether the allegation involved is a continuing violation, it would be inappropriate to deny the request to amend the complaint. Vander Zanden v. DILHR (Wis. Pers. Comm’n, 02/28/89).

The Administrative Law Judge appropriately informed the Complainant he could file an amended complaint to add an allegation of sex discrimination when, during the course of the hearing on a claim of retaliatory failure to hire, one of the Respondent’s witnesses indicated that sex was a factor in the hiring decision. Rodgers v. Milwaukee County (LIRC, 09/19/88).

The Complainant in a race and handicap discrimination matter moved to include a charge of sex discrimination two days before the hearing. The Personnel Commission refused to allow the Complainant to amend his complaint in view of the untimeliness of this request, the fact that the Complainant was represented by counsel, the fact that there was no indication that the issue of sex discrimination was not known at the time the complaint was filed, and the fact that well prior to the hearing date, counsel for the Complainant entered into a formal stipulation as to issues for hearing which did not involve sex discrimination. Johnson v. DHSS (Wis. Pers. Comm’n, 01/30/85).

It would be fundamentally unfair not to allow a party to amend her complaint to include a new charge where she had been without counsel and relied on the assistance of the Department in preparing the original complaint. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).

Where an allegation of age discrimination in a proposed amended complaint arose out of the same events as set forth in the original charge, it would relate back to the date of filing of the original charge. Szymczak v. S.C. Johnson & Son (LIRC, 08/27/82).

It was error to deny the Complainant’s request to amend his race discrimination complaint to include a charge that the same conduct was also national origin discrimination, because no new factual allegations were involved and such an amendment relates back to the original date the complaint was filed. Parker v. Thiem (LIRC, 05/14/82, amended 06/10/82).

An amendment to allege retaliation was permitted because it related back to the date of the original complaint, but the amendment should be referred for investigation and an initial determination before proceeding to hearing. Adams v. DNR (Wis. Pers. Comm’n, 01/08/82).

The employer properly objected to a hearing on a new discrimination issue which had been added by amendment to the original charge, but which the Equal Rights Division had not investigated or found probable cause on. AMC v. DILHR (Basile) (Dane Co. Cir. Ct., 10/03/77).