741.2 Identification of issues

The Administrative Law Judge improperly ruled that sexual harassment was not an issue in a case where the Complainant had alleged that she had been harassed because she was a female. The notice of hearing had improperly omitted this issue. The notice of hearing was, in turn, based upon the Initial Determination, which had specified that the issues were sex discrimination as to terms and conditions of employment and termination, and fair employment retaliation. Although sexual harassment is a type of sex discrimination, it is distinct from sex discrimination as to terms and conditions of employment. Therefore, the case was remanded to the Equal Rights Division to allow the Complainant to present her evidence relating to her allegation of sexual harassment. Matson v. Aurora Health Care (LIRC, 03/21/08).

The Complainant’s claim that the Respondent retaliated against her because of a statement she made to her supervisor was significantly different from the claim in her complaint that the Respondent retaliated against her because she filed a complaint with the Personnel Commission. These two allegations were not only factually distinct claims about different motives, but also allegations which presented distinct legal issues. The issue of whether the Respondent took adverse employment actions against the Complainant because she made certain statements to her supervisor at a meeting was not alleged in the complaint. Neither was it investigated or identified in the notice of hearing. Therefore, the Administrative Law Judge properly declined to address this issue at hearing. Hanson v. DOT (LIRC, 06/14/05).

Where an issue is not raised by a complaint, the Equal Rights Division’s investigation bureau is without authority to issue an initial determination making a conclusion on that issue, and the Equal Rights Division is without authority to conduct a hearing on that issue. Findings and orders under the Wisconsin Fair Employment Act may not be broader than that specified in the complaint and notice of hearing. Greco v. Snap-On Tools (LIRC, 05/27/04).

The complaint alleged that the Respondent had violated sec. 146.997, Stats., the Health Care Worker Protection Act. A conclusion of law in the decision issued after the hearing which referred to sec. 111.322(2m), Stats., was deleted where there was no allegation in the complaint that the Respondent had violated that statutory provision. The complaint was drafted and filed on the Complainant’s behalf by an attorney. Presumably, if the Complainant had intended to allege not only a violation of the Health Care Worker Protection Act, but also a violation of sec. 111.322(2m), Stats., she would have done so. Where an issue is not raised by a complaint, the Equal Rights Division is without authority to conduct a hearing on that issue. Korn v. Divine Savior Healthcare (LIRC, 01/16/04).

Where the Department affirmatively limited the hearing to the issue of whether discrimination had occurred, it was patently unfair to punish the Respondent for failing to produce evidence on the issue of remedy. Milwaukee Bd. of Sch. Dir. v. LIRC (Milwaukee Co. Cir. Ct., 06/14/00).

Where a notice of hearing indicated that a hearing would be held to determine whether the Respondents had violated the Wisconsin Fair Employment Act by refusing to license the Complainant because of “handicap,” the Respondent had adequate notice that the Complainant was proceeding on the basis that she had a “perceived handicap.” The statute clearly provides that the definition of a handicapped individual includes not only a person who has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work, but also one who has a record of having such an impairment, or who is perceived as having such an impairment. Hentges v. Dep’t of Regulation & Licensing (LIRC, 01/12/96).

An Administrative Law Judge improperly found that a particular individual discriminated against the Complainant in conditions of employment, where the Complainant had not so alleged in her complaint. In the complaint, the only allegations of discrimination in conditions of employment were expressly related to alleged mistreatment by another individual. Crosby v. Intertractor America Corp. (LIRC, 05/21/93).

It was improper to add the issue of liability of a Respondent who was named in an amended complaint to the issues for hearing where there had never been a formal investigation and Initial Determination of whether there was probable cause to believe that that individual, as a party Respondent in his own right, had violated the Wisconsin Fair Employment Act. Pulvermacher v. Regency Partners (LIRC, 04/28/93).

It was not proper to add to the notice of hearing an issue of whether the Respondent had retaliated against the Complainant for her filing of an earlier discrimination complaint. Even a liberal reading of the complaint would not disclose an allegation of retaliation. Further, such an allegation was not referred to during the course of the investigation, and no issue of retaliation was addressed in the Initial Determination or made the subject of a finding as to probable cause. Schiller v. City of Menasha Police Dep’t (LIRC, 01/14/93).

Findings and orders under the Wisconsin Fair Employment Act may not be broader than that specified in the complaint and notice of hearing. Haynes v. Nat’l Sch. Bus Serv. (LIRC, 01/31/92).

Where an issue is not raised by a complaint, not raised in any writing filed by the Complainant during the course of the investigation, and never disclosed by the investigator to the Respondent as an issue for investigation, and where the investigator does not allow the Respondent to be heard on this issue, the Equal Rights Division's Investigation Bureau is without authority to issue an Initial Determination making a conclusion on that issue, and the Equal Rights Division is without authority to conduct a hearing on that issue. In this case, the investigator made a finding of probable cause on the issue of constructive discharge, which was not an issue raised by the complaint (which only contained allegations of discrimination with respect to promotion and demotion). The notice of hearing also indicated that constructive discharge was an issue in the case. On motion of the Respondent, the Administrative Law Judge correctly amended the notice of hearing to delete that issue as an issue for hearing. The Equal Rights Division cannot conduct a hearing on an issue as to which no complaint had ever been filed. James v. Associated Schools, Inc. (LIRC, 11/27/91).

The Administrative Law Judge erred in concluding that a discharge was in retaliation for opposition to a discriminatory practice where the complaint alleged only that the Complainant was discharged because of marital status and where that was the only issue investigated by the Department and the only issue set forth in the notice of hearing. Cangelosi v. Robert E. Larson & Assoc. (LIRC, 11/09/90).

Where: (1) the complaint alleged only that the Complainant was pregnant, that she took a leave of absence and that when she tried to return to work while still pregnant she was not allowed to return, and (2) the notice of hearing indicated that the hearing was to determine whether the Respondents violated the Wisconsin Fair Employment Act “by discriminating against the Complainant in terms of employment because of pregnancy as alleged in the attached complaint,” the Administrative Law Judge was without authority to make findings and conclusions of law and issue an order concerning the circumstances of the Complainant’s actual return to work following the birth of her child. Neither findings nor an order should be made on allegations of discrimination not identified as issues for hearing in the notice of hearing. Yarie (Schroeder) v. The Pumphouse (LIRC, 09/14/90).

Although the complaint and notice of hearing related only to race discrimination, the Initial Determination was attached to the notice of hearing and materials referred to in the Initial Determination provided notice of a claim of sex discrimination. Both the race discrimination and sex discrimination claims involved the same factual occurrences. Consequently, LIRC had jurisdiction to consider the sex discrimination claim. Rucker v. LIRC (Ct. App., Dist. I, unpublished opinion, 05/15/90).

Where, in a case concerning an alleged discriminatory discharge, there was no reference to wage discrimination in the complaint and no investigation or initial determination of any wage discrimination claim, the Administrative Law Judge properly barred the Complainant from litigating a discriminatory wage claim at the probable cause hearing. Marchant v. Breakthru Mktg. Serv. (LIRC, 02/05/88).

A Complainant who was unrepresented when filling out her complaint should not have that complaint read narrowly so as to prevent her from introducing evidence on issues which are closely related to those raised in the complaint. Hiegel v. LIRC, 121 Wis. 2d 205, 359 N.W.2d 405 (Ct. App. 1984).

A complaint (and notice of hearing) that alleges retaliatory discharge does not constitute sufficient notice that the Complainant is also alleging that her discharge was sex discrimination. Hoyer v. LIRC (Milwaukee Pub. Library) (Dane Co. Cir. Ct., 11/10/83).

Where a complaint (and notice of hearing) alleges that a Complainant had not been reinstated because she refused a lie detector test, the issue of whether her initial suspension was for the same reason was not properly raised. Rudd v. The Rising Sun (LIRC, 11/04/82).

A complaining party’s failure to allege anything related to her termination in the complaint precluded DILHR from deciding whether she was constructively discharged. Rau v. Mercury Marine (LIRC, 05/19/77), aff’d sub nom. Rau v. DILHR (Dane Co. Cir. Ct., 02/21/79).

It was proper for DILHR to consider the legality of an employee's demotion and its relationship to the ultimate discharge even though his complaint challenged only the discharge. Michels v. Giddings & Lewis Machine Tool (DILHR, 12/06/77).

An employer's failure to make a reasonable accommodation can be considered raised by a complaint which charges the employer with handicap discrimination even where the complaint did not specifically allege such a failure. In addition, the investigation of a handicap discrimination complaint by DILHR must include a determination of whether a prudent person might believe that there has been a failure to reasonably accommodate a handicapped individual. Teggatz v. LIRC (DHSS) (Dane Co. Cir. Ct., 10/03/77).

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).

Where sexual harassment was found but not alleged in the notice of hearing, DILHR still must order such action as will effectuate its elimination. Hamilton v. DILHR (Appleton Elec.) (Dane Co. Cir. Ct., 09/12/77).

Where handicap discrimination did not form the basis for the filing of the original complaint and was not raised in the notice of hearing, the hearing examiner's findings on that issue cannot be affirmed by DILHR. Hanson v. Waukesha Bearings (DILHR, 11/18/76).

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).

DILHR cannot make findings or issue an order on allegations not contained in the notice of hearing. Price v. Lakeside Sch. Bd. (DILHR, 11/17/76).

Where the probable cause decision found that the complaining party had been discriminatorily denied employment on the basis of a medical guideline that was relied upon by the employer as a defense, there was ample notice that the guideline was at issue and the employer could be ordered to change it. Esch v. Milwaukee County (DILHR, 09/06/74).

The scope of DILHR findings, conclusions and orders is not limited by the initial determination, but by the notice of hearing. Where the notice of hearing pertained to issues affecting only a single employee and a single act of discrimination, DILHR’s application of its order to “like situated employees or applicants for employment” and “ongoing acts of discrimination” was overly broad. Chicago, Milw., St. Paul & Pacific R.R. v. DILHR (Goodwin), 62 Wis. 2d 392, 215 N.W.2d 443 (1974).