764 Dismissal of a complaint at close of Complainant’s case

The commission has frequently advised administrative law judges against dismissing a complaint without hearing the entire case. It was error to dismiss the complaint at the close of the Complainant’s case where the Complainant made out a prima facie case of age discrimination and the Respondent presented no evidence in rebuttal. Gabrielson v. Wauwatosa Sch. Dist. (LIRC, 04/05/19).

The Complainant’s evidence of favorable treatment of similarly-situated employees not in the Complainant’s protected age class, in a hearing on probable cause, was storing enough to withstand the Respondent’s motion to dismiss, when considered in light of the Commission’s consistent advice that mid-hearing motions to dismiss should be granted only in the clearest and most unambiguous circumstances, when there is no reasonable way the Complainant can prevail. The comparators were sufficiently comparable to make it plausible that they received more favorable treatment for similar conduct, at least without further explanation from the employer. Binversie v. Manitowoc Tool & Mfg., Inc. (LIRC, 03/28/13).

It is an error to grant a motion to dismiss in the middle of a hearing where the Complainant has made out a prima facie case of discrimination that has not been rebutted by any evidence from the Respondent. Gilmore v. Beverly Living Ctr. (LIRC, 01/29/13).

There is no statute, rule, or other authority which requires that when a Respondent moves to dismiss a complaint at the close of the Complainant’s case, the Administrative Law Judge must issue a decision on the sufficiency of the Complainant’s case before the hearing can continue. An Administrative Law Judge may simply decline to rule on such a motion, leaving it to the Respondent to decide whether it wishes to either rest without offering any evidence, or to put on its case. Dieterich v. Lindengrove (LIRC, 12/29/08).

A dismissal at the close of the Complainant’s case in chief should only be issued where it is clear that, whether or not the Respondent introduces any evidence on its behalf, there is simply no way in which the Complainant can reasonably prevail. In all but the clearest and most unambiguous of circumstances, the best practice is to require the Respondent to go forward with its case so that the fact-finder may consider all of the relevant evidence. Arvin v. C & D Technologies (LIRC, 10/31/08).

Dismissals at the end of the Complainant’s case should be granted only after careful consideration and in the most narrow of circumstances. Often a Respondent has a strong defense which could be presented expeditiously and without unduly prolonging the hearing, yet it opts to request a dismissal on the mistaken belief that such a resolution best serves its interests. The Respondent may be better off taking the time to put on its evidence and run the risk that a higher level decision-maker will disagree with the Administrative Law Judge’s conclusion that the Complainant failed to meet his evidentiary burden and remand the case for further hearing. Cappelletti v. OceanSpray Cranberries (LIRC, 02/15/08).

A dismissal at the close of the Complainant’s case-in-chief contemplates a circumstance in which it is clear that, whether or not the Respondent introduces any evidence on its behalf, there is simply no way in which the Complainant can reasonably prevail. Roberge v. DATCP (LIRC, 05/31/05).

The proper standard to be applied in deciding a motion to dismiss at the close of a Complainant’s case in chief in a probable cause proceeding is whether, based on the evidence of record, the Complainant has sustained his burden of proving that probable cause exists to believe that discrimination occurred as alleged in the complaint. The facts to be relied upon in deciding such a motion are not those viewed as most favorable to the Complainant, but instead those established by the credible evidence of record. Josellis v. Pace Indus. (LIRC, 08/31/04).

Where a Complainant appears at a hearing but does not put in any evidence, a summary order of dismissal is appropriate because the failure to present any evidence establishes as a matter of law that there has been a failure of proof. Oriedo v. Madison Area Tech. College (LIRC, 07/24/98).

An employer's true motivation is an elusive factual question, the determination of which is difficult to ascertain and generally unsuitable for summary disposition of an employee's claim of retaliatory discharge. Frierson v. Ashea Indus. Sys. (LIRC, 04/06/90).

Caution must be exercised in granting a request to dismiss a complaint at the close of a Complainant’s case. Before granting such a request, the Administrative Law Judge must be fully knowledgeable of what facts a Complainant needs to present to establish his or her case and exactly what evidence has been presented at the hearing. In this case, the Administrative Law Judge erred in dismissing the complaint at the close of the Complainant’s case where the Complainant’s evidence demonstrated that she made it known to the Respondent that she was seeking another position, that she was qualified to perform the administrative assistant job, and where she was never considered for the job and a person of another race was hired. Holcomb v. Am. Convenience Prod. (LIRC, 03/25/88).

The Administrative Law Judge erred in dismissing the complaint at the close of the Complainant’s case where the Complainant had made out a prima facie case by proving that she had been pregnant, that she had been capable of performing her job as evidenced by having passed her probationary period less than two weeks before she was fired, that she had only been criticized for her performance by her foreman on one occasion and that after that occasion she performed her job as required, and that she was discharged about two weeks after she first informed the employer she was pregnant. Although evidence concerning the Respondent’s asserted reasons for terminating the Complainant - that she was slow and bossy - apparently was received into the record during the Complainant’s case in chief, the Complainant offered evidence to show that those reasons were pre-textual. Matthes v. Schoeneck Containers (LIRC, 03/11/88).

The examiner erred in dismissing at the close of the Complainant's case his claim that he was discriminated against because of his race when the employer discharged him, supposedly for abetting a fraud in connection with his employment. The evidence offered at the hearing did not establish the Respondent's nondiscriminatory reason. The matter was remanded for further proceedings, to allow the Respondent to present its case in chief. Browder v. Best Food (LIRC, 01/09/87).

If testimony from a Respondent's witness or witnesses comprises an integral part of a Complainant’s case, then it is the Complainant’s responsibility to call those witnesses adversely to ensure that the testimony will be a part of the record. If the Complainant rests his or her case in chief without presenting such testimony, and if the Complainant’s case in chief has not presented sufficient evidence to satisfy the required burden of proof, the complaint is appropriately dismissed. Mazzara v. Endata, Inc. (LIRC, 01/09/87).

Where a complaining party had established a prima facie case, the hearing examiner could not dismiss the case and the employer is obliged to present rebuttal evidence. Jenkins v. Allis Chalmers (LIRC, 10/11/77).