749 Motions for failure to state a claim upon which relief may be granted.

While the failure to state a claim for which relief can granted is an appropriate basis on which to dismiss a complaint, it was not permissible for the administrative law judge to dismiss a complaint prior to hearing on the ground that the Complainant lacked evidence to support his claim. Due process requires that the Complainant be given an opportunity to present what evidence he has at a hearing. Ford v. Briggs & Stratton Corp. (LIRC, 04/11/19).

It is not appropriate to dismiss a complaint based upon findings that are contrary to the version of facts offered by the Complainant without first holding a hearing. Williams v. State of Wis. – Dep't of Vocational Rehab.(LIRC, 06/08/17).

There is no summary judgment procedure under the Wisconsin Fair Employment Act. However, in appropriate circumstances, an Administrative Law Judge may dismiss a complaint prior to hearing where, even if what is claimed by the Complainant is true, there would be no violation of the Act as a matter of law. The authority to dismiss a complaint without hearing only extends to circumstances where it appears that, based upon the assertions in the complaint, there is simply no way the Complainant could prevail. Orders of dismissal may be granted, for example, in cases where the conduct alleged to be discriminatory was not covered under the Act. However, where a complaint contains allegations which, if proven, would be covered under the Act, a dismissal prior to hearing is inappropriate. McCullum v. Lutheran Home (LIRC, 05/23/08).

The Administrative Law Judge improperly determined prior to hearing that the Complainant had no competent medical evidence to offer and would be unable to prove the theory of his case without such evidence. The Administrative Law Judge granted the Respondent’s motion to dismiss the complaint prior to hearing. Dismissal of a complaint prior to hearing is appropriate only in cases where, based upon the assertions in the complaint, there is simply no way that the Complainant could prevail. To require the Complainant to not only state a cognizable claim, but also to disclose prior to hearing what proof he intends to offer, and to have the Administrative Law Judge assess whether this proof will be sufficient to sustain his burden, goes beyond the authority of an Administrative Law Judge to dismiss a charge for failure to state a claim. Such an approach would permit an Administrative Law Judge to avoid the due process safeguards inherent in the administrative hearing process by deciding the merits of a contested case without an evidentiary record. Salinas v. Russ Darrow Group (LIRC, 8/31/07).

In deciding whether a complaint states a claim under the Wisconsin Fair Employment Act, the complaint is the starting point. Additional assertions made by the Complainant may then be looked at to the extent necessary to provide details concerning claims already alleged in the complaint. In this case, the complaint was somewhat indefinite as to when certain acts allegedly occurred, and as to who was involved in those acts. However, the nature of the claim could be clarified by looking at position statements and materials which the Complainant submitted to the Equal Rights Division during the course of the investigation. A review of these materials indicated that the complaint did state a claim for relief under the Wisconsin Fair Employment Act. Therefore, it was inappropriate for the complaint to be dismissed for failure to state a claim. Garner v. UW-Milwaukee(LIRC, 02/10/06).

Dismissal of a complaint prior to hearing is appropriate where, even if the facts alleged by the Complainant were proven, they would not amount to a violation of the law. However, a motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. Cases in which it has been found that there were no circumstances in which the Complainant could prevail based upon the allegations in the complaint have generally involved situations in which the conduct alleged to be discriminatory was not covered under the Wisconsin Fair Employment Act. Sabol v. UW-Eau Claire (LIRC, 01/31/06).

The complaint was properly dismissed for failure to state a claim for relief under the Wisconsin Fair Employment Act even when the Complainant’s complaint and his assertions that he was sexually harassed were construed in the light most favorable to him. The Complainant conceded that the incidents complained of were not of a sexual nature. Instead, he indicated that the incidents complained of were nothing more than horseplay. Mroczkowski v. Belmark, Inc. (LIRC, 04/28/05).

There is no mandatory requirement under sec. DWD 218.05, Wis. Adm. Code, that an Administrative Law Judge hold a hearing. Watt v. FedEx Ground Package Sys. (LIRC, 08/31/04).

An Administrative Law Judge has the authority to dismiss a complaint sua sponte. However, this authority only extends to instances where it appears that, even if what the Complainant claims is true, a decision in favor of the Respondent would be required by law. A motion to dismiss for failure to state a claim should not be granted unless there are no circumstances under which relief could be granted. Reddin v. Neenah Joint Sch. Dist. (LIRC, 08/24/04).

A motion to dismiss for failure to state a claim upon which relief can be granted should not be granted unless there are no circumstances under which relief could be granted. Jackson v. Milwaukee Area Tech. College (LIRC, 07/16/03).

A complaint is subject to dismissal if it fails to satisfy a subject matter jurisdiction requirement; if it fails to satisfy the statute of limitations; or if it fails to state a claim upon which relief may be granted, regardless of the outcome of the investigation. The fact that the investigator found probable cause does not entitle the Complainant to a hearing if the complaint is subject to dismissal for one of the foregoing reasons. Lau v. Latec Credit Union (LIRC, 02/07/03).

A complaint may be dismissed prior to hearing on a motion to dismiss for failure to state a claim upon which relief may be granted if it appears that, even if what is claimed by the Complainant is true, a decision in favor of the Respondent is nevertheless required as a matter of law. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

An administrative agency has only those powers expressly conferred or reasonably implied from its statutory grant of authority. The administrative agency is not a court of equity and may not grant relief on that basis, no matter how compelling. Accordingly, the Labor and Industry Review Commission rejected the Complainant’s contention that it should deny a motion to dismiss based upon the equities present in the case, in particular the financial hardship the Complainant's unemployment caused for his family. Ficken v. Harmon Solutions Group (LIRC, 02/07/03).

While an administrative law judge may hold a hearing to allow the parties to establish facts which may have a bearing on whether the complaint should be dismissed, this determination may also be made based upon the documents and affidavits presented by the parties, pursuant to sec. ILHR 218.10, Wis. Admin. Code. Newton v. St. Gregory Educ. & Christian Formation Comm. (LIRC, 12/10/97). [Ed. note: sec. ILHR 218.10, Wis. Admin. Code is now sec. DWD 218.10, Wis. Admin. Code].

Administrative Law Judges have the authority to dismiss complaints without hearing where that action would be legally justified even if the facts were as asserted by the Complainant. Castiglione v. Giesen & Berman (LIRC, 06/25/97).

There is no sense in conducting a hearing on a complaint where, even if the facts alleged are proven, they do not amount to a violation of law upon which relief can be predicated. Dunn v. City of Burlington Eng’g Dept. (LIRC, 07/28/95).

An Administrative Law Judge may dismiss a complaint prior to hearing if it appears that, even if what the Complainant claims is true, a decision in favor of the Respondent is required by law. In making this decision, the Administrative Law Judge should look only at what the Complainant alleges and any other assertions of the Complainant which provide an indication of the nature of the claim. Schaefer v. New Berlin Realty (LIRC, 06/10/93).

No authority exists under the Administrative Procedure Act, the WFEA or the Division’s rules to entertain motions for summary judgment of the kind authorized in actions or proceedings in court by sec. 802.02(2), Stats. There is no procedure whereby a Respondent, merely by filing a motion and supporting affidavit which disputes material facts alleged by a Complainant, can somehow force the Complainant to file responsive affidavits or risk having the case dismissed on the version of the facts advanced by the Respondent. However, in appropriate circumstances, an ALJ may dismiss a complaint prior to hearing where it appears that even if what is claimed by the Complainant is true, there would be no violation of the Act as a matter of law. Making such a determination involves simply looking at what the Complainant asserts he will prove. This can be accomplished by looking at what the Complainant alleges and to any other assertions by the Complainant which provide an indication of the nature of the claim. Jacobs v. Glenmore Distilleries Co. (LIRC, 11/25/92).

In response to the Respondent’s claim that the work relationship between the Complainant and the Respondent is shielded by the Federal and State Constitutions from Division intrusion, the Division held an evidentiary jurisdictional hearing. Jocz v. Sacred Heart School of Theology (LIRC, 08/17/92).

In determining whether it was appropriate to dismiss a complaint prior to hearing on the basis that it was untimely, an Administrative Law Judge could only review the Complainant’s assertions. It was improper to consider a Respondent’s affidavit as to when the communication of the employee's seniority date occurred. Because the documents which could be considered (i.e., those containing the Complainant’s assertions) were inconclusive, the timeliness issue could not be resolved without a hearing. Valeri v. Delco Electronics (LIRC, 07/17/92).

The Department may, in appropriate circumstances, dismiss a complaint prior to a hearing when it appears that even if what is claimed by the Complainant is true, a decision in favor of the Respondent is required as a matter of law. Generally in such cases the decision will be made by looking to the allegations of the complaint, but other allegations made by the Complainant may be taken as indications of the Complainant's assertions as to the facts. In this case, assertions made by the Complainant to the Equal Rights investigator, sworn testimony of the Complainant given in a discovery deposition, assertions made by or on behalf of the Complainant by way of affidavit submitted in response to a motion to dismiss, and assertions made by counsel for the Complainant in written argument submitted in response to a motion to dismiss were all considered. Tucker v. Rock County (LIRC, 07/02/92).

A Respondent may move to dismiss a complaint prior to hearing if it believes that even the facts asserted by the Complainant require as a matter of law that the complaint be dismissed. Olson v. Lilly Research Lab. (LIRC, 06/25/92).

As a general matter, any pre-hearing determination as to the legal adequacy of a charge of discrimination should be made by reference to the complaint, and not by reference to assertions made in subsequent affidavits or other collateral sources submitted by the party seeking dismissal. However, the particular circumstances of a case may justify looking beyond the narrow confines of the complaint. Where the Complainant has intentionally omitted information from the complaint which is necessary to determine whether the complaint meets the requirements of a preliminary review under sec. Ind 88.03, Wis. Admin. Code, it is appropriate to look to any reliable collateral sources for that information. In this case, it was appropriate to rely upon a discovery deposition of the Complainant and factual assertions in the Complainant's brief. Olson v. Lilly Research Lab. (LIRC, 06/25/92).

The Wisconsin Administrative Procedure Act does not provide explicitly for a summary judgment procedure. However, since sec. 227.42(1)(d), Stats., provides that an evidentiary hearing in a contested case is only required when “[t]here is a dispute of material fact,” if it can be determined that there are no disputed issues of material fact, the Personnel Commission can issue a decision without an evidentiary hearing in what amounts functionally to a summary judgment proceeding. Balele v. UW-Madison (Wis. Personnel Comm’n, 06/11/92).

Where a co-employee had a sexual relationship with the Complainant’s spouse, and the Complainant alleged essentially that the relationship adversely affected his employment and led to his termination, the dismissal of the complaint was upheld on the grounds that even if the facts alleged were deemed true this would not constitute marital status discrimination as a matter of law. Miner v. LIRC (Rock County Cir. Ct., 04/07/92).

The Equal Rights Division does not have authority to entertain motions for summary judgment of the kind that are authorized by sec. 802.08, Stats. An Administrative Law Judge may, in appropriate circumstances, dismiss a complaint prior to hearing when it appears that even if what is claimed by the Complainant is true, there would be no violation of the Wisconsin Fair Employment Act. However, making such an analysis involves simply looking at what the Complainant asserts he will prove. There is no procedure whereby a Respondent, merely by filing an affidavit which disputes material facts alleged by the Complainant, can force the Complainant to file responsive affidavits or risk having the case decided on the version of the facts advanced by the Respondent. Alvey v. Briggs & Stratton (LIRC, 11/27/91).

The Complainant did not state a claim for relief for retaliation under the Wisconsin Fair Employment Act where she alleged that the Respondent retaliated against her for filing a prior charge of discrimination by asking her a series of personal and allegedly irrelevant questions during a deposition. It would be going beyond a fair liberal construction of the Wisconsin Fair Employment Act to hold that “terms, conditions or privileges of employment,” encompasses an employer's line of questioning at a deposition taken in connection with the employee’s civil service appeal of a disciplinary action. Larsen v. DOC (Wis. Pers. Comm’n, 07/11/91).

The Complainant filed a complaint of handicap discrimination based upon the Respondent’s removal of its uncorrected vision standard, under which the Complainant had qualified for certification to the list of people to be considered for a conservation warden position. The complaint did not constitute a claim under the Wisconsin Fair Employment Act, but the Complainant was given thirty days to amend the complaint to allege that the Respondent’s deletion of the uncorrected vision standard was motivated by an intent to discriminate. Wood v. DNR (Wis. Pers. Comm’n, 05/18/89).

Where the gist of the complaint was that the Respondent discharged the Complainant on the basis of false reports made to the Respondent by others, and where the complaint failed to allege that the false reports concerned or were motivated by the Complainant’s religious beliefs, that the Respondent knew or believed that the complaining individuals disliked the Complainant’s religious beliefs, or that the employer itself shared any dislike others may have held for his religious beliefs, the complaint failed to state a claim upon which relief could be granted on a theory of religious or creed discrimination. Hallingstad v. A.B. Dick Prod. (LIRC, 11/05/87).

Where the Complainant was denied employment as a truck driver because he was too large to be accommodated in the cab of the truck, the hearing examiner properly dismissed the complaint without conducting a hearing on the grounds that the Complainant was not handicapped within the meaning of the Act. Because the complaint failed to state a claim upon which relief could be granted under the Fair Employment Act, the examiner was within his authority to dismiss the complaint prior to the hearing. Rick v. Fore Way Express (LIRC, 07/25/85).

Failure to submit a timely answer does not justify summary judgment for Complainant where the employer had stated its position at previous stages in the complaint process. Bullock v. Milwaukee County (LIRC, 10/15/82).

DILHR has the authority to dismiss a complaint at any stage of the proceedings before it, whether at the request of a party or upon its own motion, for failure to state a claim upon which relief may be granted. Lambert v. DILHR (AMC) (Dane Co. Cir. Ct., 07/25/77).