721 Generally

On appeal to the Labor and Industry Review Commission, the Complainant referenced certain information which she alleged was improperly presented to, and was improperly relied upon by, the Equal Rights Division investigator. However, upon appeal from an investigator’s initial determination of no probable cause, a de novo proceeding is conducted by an Administrative Law Judge. As a result, the type of defect in the investigative process alleged would not affect either the Equal Rights Division’s or the Labor and Industry Review Commission’s disposition of the charge. Bock v. Shopko Stores (LIRC, 08/16/06).

The Equal Rights Division is not authorized to dismiss a complaint based upon a final action by the U.S. Equal Employment Opportunity Commission (EEOC). The Division is required to investigate all complaints of discrimination unless the complaint fails to meet one or more of the four criteria specifically enumerated in the Division’s rules (Sec. DWD 218.05 & 218.06, Wis. Adm. Code). A dismissal by the EEOC is not among those criteria and is not a circumstance that warrants dismissal of a complaint before an investigation has been conducted. Catlin v. Crystal Lake Cheese Factory (LIRC, 07/20/01), aff’d sub nom. Crystal Lake Cheese Factory v. LIRC (Barron Co. Cir. Ct., 02/07/02).

If a complaint contains some allegations that satisfy the requirements described in sec. DWD 218.05, Wis. Admin. Code, it would be improper to dismiss the entire complaint just because it contains some allegations that do not satisfy those requirements. However, the administrative rule authorizes only the dismissal of the entire complaint. Therefore, a suggested better procedure for handling complaints that contain both legally viable allegations and legally inadequate ones would be to submit them to the normal probable cause/no probable cause investigation process and to issue an Initial Determination finding “no probable cause” as to the legally inadequate allegations. Woodford v. Norwood Health Ctr. (LIRC, 05/11/01); Stone v. Milwaukee Bd. of Sch. Dir. (LIRC, 08/17/01). [Ed. note: Sec. DWD 218.05, Wis. Admin. Code, has since been amended to provide that a preliminary determination shall dismiss a complaint, or a portion of a complaint, that fails to meet the requirements of sec. DWD 218.05(1), Wis. Admin. Code].

The Complainant maintains that the investigation of his complaint was mishandled by the Equal Rights Division. However, the Division’s investigation of the complaint had no bearing on the manner in which the hearing was conducted, nor did it limit the Complainant’s ability to present relevant evidence at the hearing. The Initial Determination was not submitted into evidence at the hearing and did not influence the findings of fact and conclusions of law made by the Administrative Law Judge. Ollenburg v. Milwaukee County Sheriff’s Dep’t (LIRC, 09/28/94).

The Equal Rights Division issued an Initial Determination of probable cause, indicating that jurisdictional issues raised by the Respondent would have to be resolved at the hearing stage. An alternative writ of prohibition was quashed by the Circuit Court where there was no clear statutory provision or case law which deprived the Equal Rights Division of jurisdiction and where the jurisdictional issue was not a pure question of law presented in the context of undisputed facts, since the Respondent denied the allegations in the complaint. State of Wis. v. DILHR (Dane Co. Cir. Ct., 04/11/94).

Nothing in the administrative rules or the statute indicates that affirmative defenses must be asserted during an investigation or be waived. Olson v. Lilly Research Lab. (LIRC, 06/25/92).

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. Gartner v. Hilldale, Inc. (LIRC, 05/12/92).

When an allegation of discrimination has not been made the subject of a properly filed complaint, there should not be a hearing until the Division has conducted an investigation and issued an Initial Determination on the matter of probable cause. Yarie (Schroeder) v. The Pumphouse> (LIRC, 09/14/90).

Where a complaint of discrimination based on ancestry and age, which was followed by a second complaint mentioning merely age, was never formally withdrawn or dismissed, it was still pending before the Division. Pasternak v. Goodman Forest Indus. (LIRC, 04/15/87).

Where the investigator refused to disclose the name of an informant with whom she had spoken in the course of her investigation to the Complainant's attorney, the Personnel Commission ruled that the name of the witness would have to be disclosed to the Complainant's attorney, with the provision that the Complainant's attorney was directed not to disclose the identity of the witness unless he decided to call the witness at hearing. Stroud v. DOR (Wis. Pers. Comm’n, 03/27/85).

At the investigative (and hearing) stage, the Equal Rights Division must make findings of fact, conclusions of law and orders on each specific allegation of discrimination raised by a Complainant. Fleschar v. Rainfair (LIRC, 07/02/82).

The Equal Rights Division is without authority to change its initial determination once the period for appealing that decision has run. Anthony v. Lakeside Bridge & Steel (LIRC, 09/12/80).

A hearing on a complaint of discrimination should not be held until the Equal Rights Division has conducted an investigation and issued an initial determination on the matter of probable cause. Schumacher v. Metal Indus. (DILHR, 11/17/76).