722.2 Probable cause hearing

When an investigation results in a determination of no probable cause and that is appealed to a hearing on the issue of probable cause, and when that hearing results in an ALJ’s decision that there is probable cause and that the matter should proceed to a hearing on the merits, the proceedings on the merits which follow are entirely de novo. The record of the probable cause hearing is not part of the record on which the merits are to be decided, and the decision of the ALJ who presided at the probable cause hearing is of no relevance and of no weight in the merits proceedings. Neither the probable cause hearing record nor the decision resulting from it should be cited as having any significance, or accorded any significance, in the process of trying and deciding the merits of the case. Walker v. City of Eau Claire (LIRC, 03/28/13).

An Administrative Law Judge does not “reverse” decisions of the Equal Rights Officer. A probable cause determination by the Equal Rights Officer simply means that there was reason to believe that there was sufficient information to warrant a hearing on the complaint of alleged discrimination. Whether in fact discrimination has occurred must be established on the basis of the evidence presented at a hearing before an Administrative Law Judge. At such a hearing, the Complainant must prove, by a preponderance of the evidence, that a violation of the Act has occurred. Piggee v. Crothall Health Care (LIRC, 04/21/03).

It has long been recognized that an administrative appeals procedure under the Wisconsin Fair Employment Act which provided for only an oral argument and a record review of an Initial Determination of no probable cause would constitute a denial of due process. Bedynek-Stumm v. City of Madison (LIRC, 11/30/01).

An Administrative Law Judge may make credibility determinations at a probable cause hearing. Jones v. Gen. Motors Corp. (LIRC, 07/28/99).

Credibility determinations may be made at a probable cause hearing. Boldt v. LIRC, 173 Wis. 2d 469, 496 N.W.2d 676 (Ct. App. 1992).

Section Ind 88.08, Wis. Admin. Code, providing for hearings on the issue of probable cause upon appeal of initial determinations of no probable cause, was validly promulgated and is constitutional. Sections 111.375(1) and 111.39(2), Stats. both empower the Division to hold hearings necessary to perform its functions, and the no probable cause hearing is thus a proper exercise of the Division’s authority to investigate complaints to determine if probable cause exists. Black & Decker v. DILHR (Gwendolyne Smith) (Ct. App., District IV, unpublished opinion, 09/15/88). [Ed. note: sec Ind. 88.08, Wis. Admin. Code, has been replaced by sec. DWD 218.08, Wis. Admin. Code.]

The Labor and Industry Review Commission is without authority to act on a petition for review of an Administrative Law Judge's decision finding, after hearing, that there is probable cause to believe allegations of a complaint and ordering the matter remanded to conciliation. Binder v. Nercon Eng’g & Mfg. Co. (LIRC, 07/23/87).

In seeking a review of an initial determination of no probable cause, complaining parties are entitled 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).

A probable cause finding made by a hearing examiner at a no probable cause hearing is not reviewable. Basile v. AMC (DILHR, 01/30/75).

An administrative appeals procedure which provided only an oral argument and a record review of the initial determination of no probable cause would constitute a denial of due process. Warren v. DILHR (Mt. Sinai Hospital) (Dane Co. Cir. Ct., 12/21/70).