719 Miscellaneous

Specific arguments in the Complainant’s petition for review are considered abandoned when the Complainant fails to mention them in its brief, the Respondent argues in reply that the Complainant has abandoned them, and the Complainant does not challenge that argument in its reply brief. Liddell v. Kleen Test Prod., Inc. (LIRC, 04/11/14).

For the Equal Rights Division to give preclusive effect to an EEOC investigation result and to dismiss a complaint on that basis without providing an opportunity for hearing would be improper as a matter of law. This is because EEOC investigations are ex parte. They do not allow for any form of confrontation or examination of adverse witnesses and they are not, standing alone, sufficient to satisfy the requirements of due process. Banty v. Dings Co. Magnetic Group (LIRC, 07/31/12).

The Equal Rights Division and the EEOC have a work-sharing agreement which provides for the cross-filing of complaints. Section DWD 218.03(5), Wis. Admin. Code, provides that when a complaint is deferred to the ERD by the EEOC, it is considered “filed” with the ERD when it is received by the deferring agency. Aldrich v. LIRC, 2012 WI 53, 341 Wis. 2d 36, 814 N.W.2d 433.

The administrative rules of the Equal Rights Division provide that a complaint may be filed in person at any Division office, or that it may be mailed to one of two specified Division offices. Other possible methods of filing a complaint are not permitted. A complaint may not be filed by fax, absent an administrative rule expressly allowing such filings. Hinsa v. Ponsse USA (LIRC, 08/05/05).

The Personnel Commission has the discretion to reject a complaint under certain circumstances. Sec. 111.39(1), Wis. Stats., provides that a complaint of discrimination “may” be received and investigated if it is filed no more than 300 days after the alleged discrimination occurred. A quasi-judicial administrative agency must be viewed as having some ability to limit access by individuals who have abused the legal process in the past. To conclude otherwise would allow one individual to paralyze the operation of the Commission, in light of its finite resources. Balele v. DOA, et al. (Wis. Pers. Comm’n, 07/31/02).

The Personnel Commission limited the Complainant’s filing of new cases based on the following circumstances: (1) The Complainant had filed 56 complaints with the Personnel Commission between 1987 and 2002 (The Complainant’s filings represented 3.5% of all the complaints received by the Commission during a six year period), (2) the Complainant had not prevailed in any of his cases before the Personnel Commission, or on appeal, (3) the Complainant had acted improperly during the course of a number of proceedings arising from his complaints before the Commission, (4) the Complainant had failed to pay a $398.11 discovery sanction imposed by the Commission in one of his cases, (5) the Complainant has directed ad hominem attacks against counsel for a Respondent, (6) the Complainant had made extensive use of the discovery process, and the discovery requests were burdensome. All of these circumstances supported the imposition of sanctions against the Complainant. Therefore, all of the cases the Complainant had pending against the named Respondents were stayed and the Complainant was barred from filing any new complaints against any of those Respondents until the Complainant paid all the monies due the State of Wisconsin arising from three circuit court proceedings that arose out of cases originally filed with the Personnel Commission. Balele v. DOA, et al. (Wis. Pers. Comm’n, 07/31/02).

The Equal Rights Division has adopted very specific administrative rules which provide the process by which a complaint may be disposed of before it is certified to hearing. If a complaint which meets the standards set forth in the rules is filed, it may thereafter only be disposed of in one of the ways specifically set forth in the rules: (1) It may be dismissed as part of a preliminary review process, (2) it may be investigated, or (3) it may be dismissed based upon the Complainant’s request for withdrawal. (A dismissal based on a Complainant’s representation that he is no longer interested in pursuing the complaint must be made based only on a written withdrawal signed by the Complainant or the Complainant’s authorized representative). The complaints in this matter were never made the subject of a written request for withdrawal. They were never dismissed. They are, therefore, still pending until they are disposed of on one of the bases provided for in the ERD’s rules. Pasternak v. Goodman Forest Indus. (LIRC, 04/15/87).

Where an employee filed a motion to intervene in a proceeding brought by another employee, in which it had been found that there was probable cause to believe that discrimination occurred in the establishment of an employment register, the Commission denied the request for leave to intervene on the grounds that the intervenor did not file his motion to intervene within 300 days of the date of the establishment of the register, which was the subject of his complaint. Schroeder v. DHSS (Wis. Pers. Comm’n, 11/12/86).