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DECISION DIGEST

100 THE MADISON EQUAL OPPORTUNITIES ORDINANCE (MEOO)

Section 39.03, Madison General Ordinances

110 Coverage and Application, Generally

Complainant filed a charge of discrimination based on age discrimination against Respondent, a non-profit religious organization. The court ruled that MEOC could not include the Respondent as an "employer" because state law, at that time, specifically and expressly did not allow non-profit religious organizations to be deemed as employers. St. Vincent De Paul Society v. MEOC, No. 83-1105 (Ct. App. 10/25/84).

111 Validity of Ordinance

A City ordinance may be authorized by Sec. 62.11(5), Wis. Stats. (the home rule statute), notwithstanding statewide concern in the matter it regulates; . . . and where a municipality acts within the legislative grant of power (of the home-rule statute), the test to determine the validity of the ordinance is as follows:

(1) Whether the legislature has expressly withdrawn the power of municipalities to act;

(2) Whether the ordinance logically conflicts with state legislation;

(3) Whether the ordinance defeats the purpose of state legislation;

(4) Whether the ordinance goes against the spirit of state legislation. Anchor Savings & Loan v. MEOC (Schenk), 120 Wis. 2d 391, 355 N.W. 2d 234 (1984).

The Ordinance is within the power of the City of Madison to create and is not prohibited by the federal Constitution. Fed. Rural Elec. Ins. v. MEOC (Kessler), No. 79-538 (Ct. App. 4/27/81), aff'd by an equally divided court (Wis. Sup. Ct., 3/28/82).

. . . nor is the Ordinance's administrative procedure a violation of due process requirements. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/23/80), aff'd per curiam, No. 80-1906 (Ct. App. 7/16/81), aff'd by equally divided court (Wis. Sup. Ct., 3/28/82 and 4/6/82).

. . . nor is it preempted by or inconsistent with state legislation. State ex rel. McDonald's Restaurant v. MEOC (Karaffa), No. 82-CV-2423 (Dane County Cir. Ct., 7/6/83); Fed. Rural Elec. Ins. v. MEOC (Kessler), supra.

. . . however, the City does not have the authority to create a private cause of action. Althouse v. Goulette, No. 2164 (Dane County Cir. Ct., 12/8/76).

112 Geographical Coverage of the Ordinance

The Respondent's principal place of business was located outside of the City of Madison. Though the Respondent conducted some business within the City of Madison, the Complainant's job was performed entirely outside of the City of Madison. The Hearing Examiner determined that the Commission was without geographic jurisdiction. Rappe v. Soderholm Wholesale Foods, Inc., MEOC Case No. 21811 (Ex. Dec. 12/13/93).

Respondent moved to dismiss the complaint, asserting that all decisions relating to the Complainant's employment in Hong Kong were made outside of the state of Wisconsin and the U.S. The Hearing Examiner could find no support in the record for the Complainant's contention that the Complainant's current employer, a sister company to the Complainant's former employer, and within the geographical jurisdiction of the Commission, played any part in the elimination of the Complainant's position in Hong Kong. The Hearing Examiner concluded that the Commission was without geographic jurisdiction over the allegations of the complaint. Zabit v. Kraft Foods et al., MEOC Case No. 22563 (Ex. Dec. 5/19/98).

The hearing examiner granted Respondent's motion to dismiss for lack of geographical jurisdiction when Complainant failed to provide any documentary evidence that the alleged acts of discrimination occurred within the Commission's jurisdiction, rather than at the Respondent's facility located outside of the state of Wisconsin. White v. Work Bench Inc., MEOC Case No. 19982018 (Ex. Dec. 12/15/98).

When allegedly discriminatory employment decisions occur in a city outside Madison, the Commission has no jurisdiction. Respondent's decisions regarding job assignments took place in Middleton. Hawkins v. Volkmann Railroad Builders, Inc., MEOC Case No. 22451 (Ex. Dec. 2/17/00).

After the Complainant was rejected for several part-time jobs bagging groceries, she filed a complaint with the Equal Opportunities Commission, claiming the Respondent had discriminated against her based upon her disability and conviction record. The Respondent moved to dismiss the complaint for lack of jurisdiction. According to the Respondent, the Commission lacked geographical jurisdiction because decisions about hiring new employees were made in Milwaukee, not Madison. Thus, the Complainant could not have been discriminated against in Madison. The Hearing Examiner ruled that the Commission did have jurisdiction. The determining factors were: (1) incongruity with State courts on the question of geographical jurisdiction-whether discrimination "occurs" where the challenged decision was made or where the impact was felt--would produce anomalous results and would serve no useful purpose, and (2) the Hearing Examiner could not have found lack of jurisdiction without undermining the public policy of the City of Madison. Williams (f/k/a Stevenson) v. Copps Food Center, MEOC Case No. 20042113 (Ex. Dec. 2/9/2005).

The Hearing examiner denied the Respondent's motion to dismiss the complaint for a lack of jurisdiction. The Respondent contended that even though the Complainant would have worked within the City of Madison, the Respondent's entire hiring process took place outside of Madison. The Hearing Examiner found that where the effects of discrimination would be felt in Madison, the Commission should have jurisdiction. Stevenson v. Copps Food Center, MEOC Case No. 20042113 (02/09/2005).

The Complainant asserted that the Respondent discriminated against him on account of his credit history, arrest record and conviction record when it offered him employment, but later rescinded the offer after the results of a background check. The Respondent moved to dismiss the allegations of the complaint for a lack of jurisdiction. The Respondent asserted that the alleged adverse employment decision occurred outside the City of Madison and, therefore, the Equal Opportunities Division lacks geographic jurisdiction over the complaint. In contrast, the Complainant asserted that the question was not where the employment decision took place, but rather where its effects are felt.

The Hearing Examiner found that the Complainant's primary job duties would have been performed within the City of Madison. The Hearing Examiner found that despite the Complainant's residence in Columbus, his presence in Madison to fulfill the duties of the job would have produced a positive economic impact in the City of Madison further demonstrating grounds for the Department's jurisdiction. Accordingly, the Hearing Examiner denied the Respondent's motion. Severson v. Kaplan, Inc., MEOC Case No. 20112122 (Ex. Dec. 12/22/11).

113 Express Exceptions From Coverage

114 Exclusivity of MEOO Remedy

115 Constitutional Questions and Issues

Because of the similarity of the employment discrimination provisions of Sec. 3.23, Madison General Ordinances and the Wisconsin Fair Employment Act (WFEA), due process requires no less of the MEOC enforcing the ordinance than is required of DILHR in enforcing the WFEA. Laboratory Consulting, Inc. v. MEOC, et al., No. 85 CV 6300 (Dane County Cir. Ct., 8/29/86).

The MEOC's administrative hearing process was found to be a sufficient and fair forum where constitutional questions and issues may be decided by the Commission. As a result, the court applied the doctrine of abstention and did not exercise jurisdiction over the constitutional claim that was brought because MEOC's proceedings were deemed appropriate. Madison Newspapers, Inc. v. EOC, City of Madison, et al, No. 87-C-479-S (W.D. Wis. 1987).

The Hearing Examiner may not decide if a conflict exists or resolve any potential conflict between ordinances, statutes or constitutions other than the Madison Equal Opportunities Ordinance. Hafner v. Last Coast Producing Corp. et. al., MEOC Case No. 20003184 (Ex. Dec. 1/14/02).

The Hearing Examiner may look to federal case law concerning the Americans with Disabilities Act when provisions of the Madison Equal Opportunities Ordinance at issue are substantially similar to provisions within the Act. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

116 Relationship to Other Litigation: Res Judicata, Collateral Estoppel; Judicial Estoppel

116.2 General Principles

Although the doctrines of res judicata or collateral estoppel may require the dismissal of a complaint where the same complaint has been decided after an administrative hearing held by a state administrative agency, the doctrines do not apply where the state Equal Rights Division or federal Equal Employment Opportunity Commission has merely made an (investigation) initial determination on the complaint. Monroe v. Swiss Colony, MEOC Case No. 2534 (Ex. Dec. 9/5/80).

NOTE: The current work sharing agreement in effect between the Madison Equal Opportunities Commission and the state Equal Rights Division may, however, in many circumstances, require one agency to adhere to a final disposition by the other agency even where a case has not progressed through hearing.

After a physical confrontation between Complainant, an African American man, and Respondent, his landlord, Complainant filed a complaint at MEOC alleging racial harassment. Complainant also filed a counterclaim to the landlord's action for assault in the Circuit Court alleging violations of Federal and State Fair Housing Laws. The Court action was settled. Though it was unclear whether there had been an intent to settle the MEOC action, the Hearing Examiner dismissed the MEOC complaint as res judicata. Jackson v. Marvin Hellenbrand, MEOC Case No. 1482 (Ex. Dec. 5/24/93).

The Hearing Examiner ruled that the Complainant's disability discrimination claim before the Commission was not precluded by a finding of no probable cause in a claim litigated before the Equal Rights Division under the Wisconsin Family and Medical Leave Act. The Hearing Examiner decided that while there might be preclusion of some factual findings, the underlying issues of discrimination were not fully litigate before the ERD. Blizzard v. Auto Glass Specialists, MEOC Case No. 20022147 (Ex. Dec. 07/18/05).

116.9 Miscellaneous


200 EMPLOYMENT DISCRIMINATION

210 Coverage

211 Who May File a Complaint

211.1 Covered Individuals

The Ordinance validity confers jurisdiction on the Commission to consider discrimination complaints involving state vocational, technical and adult education districts. Atty. Gen. Opinion, OAG 58-81, 70 AG 266 (1981).

The Commission had jurisdiction over claims involving job assignments and discharge as well as hire and hire-related issues (such as retaliation in regard to rehire) where the employer's only business office was located in the City of Madison and it retained control over all job activities even where the job duties were performed one hundred percent on the University of Wisconsin-Madison Campus. Whiteagle v. Badger Mechanical, No. 20133 (MEOC, 1/31/86), app. pending.

. . . but the MEOC's jurisdiction does not extend beyond the City limits. Anchor Savings & Loan v. MEOC (Schenk), supra.

The Respondent moved for dismissal of the complaint for lack of jurisdiction based upon its contention that the Complainant was not an employee of the Respondent. The Hearing Examiner concluded that even though the Complainant was not an employee of the Respondent in a strict sense, she worked at the Respondent's facilities in order to benefit its programs. Therefore the Respondent owed the Complainant a duty of protection under Sec. 3.23(7)(a) of the ordinance. Thompson v. St. Mary's Hospital Medical Center, MEOC Case No. 21734 (Ex. Dec. 3/8/94).

Respondent moved to dismiss the complaint, asserting that all decisions relating to the Complainant's employment in Hong Kong were made outside of the state of Wisconsin and the U.S. The Hearing Examiner could find no support in the record for the Complainant's contention that the Complainant's current employer, a sister company to the Complainant's former employer, and within the geographical jurisdiction of the Commission, played any part in the elimination of the Complainant's position in Hong Kong. The Hearing Examiner concluded that the Commission was without geographic jurisdiction over the allegations of the complaint. Zabit v. Kraft Foods et al., MEOC Case No. 22563 (Ex. Dec. 5/19/98)

211.2 Covered Employment Relationships; Independent Contractors

A Complainant who alleges employment discrimination on the basis of race, national origin and color is barred from pursuing his claim when his contractual arrangement with Respondent contemplates that there be no control over the manner in which Complainant sells Respondent's product, where Complainant is responsible for all taxes and expenses incurred in selling the product and is free to set his own hours, schedule and other working conditions. Kabir v. Electrolux, MEOC Case No. 22485 (Ex. Dec. 11/11/96).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The hearing examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the hearing examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the hearing examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

211.3 Standing

211.9 Miscellaneous

The Complainant alleged that the Respondent discriminated against him on the basis of his political beliefs and sex in housing, employment, public accommodations and in the provision of City services or facilities. Specifically, the Complainant claimed he was discriminated against because Respondent's board of directors was all female or considered feminist. The hearing examiner found that service on Respondent's board of directors was not a public place of accommodation or amusement because the Respondent has highly selective criteria for selecting a director. In addition, there was no evidence that Complainant had standing because there was no indication in the record that he applied for a director position.

The Complainant further alleged that the Commission had jurisdiction to enforce the non-discrimination provisions of a City of Madison contract for the provision of service with the Respondent in the area of domestic prevention and intervention. The hearing examiner found no support in the ordinance for such jurisdiction and indicated that such was a matter that should be taken up before the Common Council or with the Community Services Commission.

The hearing examiner did not address the allegation of housing discrimination as that matter was pending in the Dane County Circuit Court.

The Complainant also alleged a violation of the City facility and Services portion of the ordinance. The hearing examiner found that the Complainant had failed to established standing for the alleged violation because Complainant never requested the services that were the subject of the City facilities and services.

The Complainant also contended that he was discriminated against when he was not allowed to work as a volunteer on Respondent's crisis line because of his sex. The hearing examiner determined that the ordinance does not cover volunteer positions because there is no exchange of compensation as in an employer-employee situation.

The Complainant also alleged discrimination in advertisement when the Respondent identified itself as a feminist organization on its recruitment advertising. The hearing examiner found that this was not a violation of the ordinance because it was a mechanism for the Respondent to identify itself, not to prevent non-feminists from applying for positions within the Respondent's organization. On appeal, the Commission agreed with the hearing examiner's decision. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. 8/20/99, Ex. Dec. 3/26/99).

Although the Complainant, a homosexual male, is protected by the Equal Opportunities Ordinance, Sec. 3.23, because of his sexual orientation, Respondent did not discriminate against him on this basis upon discharging him from employment. The Hearing Examiner concluded that Complainant's extreme and undesirable public behavior at a work- related convention was the Respondent's non-discriminatory reason for terminating Complaint's employment. Goad v. Ahrens Cadillac/Oldsmobile, Inc., MEOC Case No. 20022061 (Comm. Dec. 12/26/06, Ex. Dec. 8/6/06).

212 Against Whom a Complaint May Be Filed

212.1 Employers

While the prohibition against employment discrimination in section 7(a) of the Ordinance is stated in terms broad enough to contemplate an action against an individual as set forth in the complaint, it does not contemplate an action against an individual state employee engaged in conduct within his or her job responsibilities. Seshadri v. David Ward, et al., MEOC Case No. 22393 (Ex. Dec. on jurisdiction, 8/7/96).

Complainant filed a charge of discrimination based on sexual harassment and retaliation against the Respondent in his individual capacity. The hearing examiner granted Respondent's motion to dismiss as to sexual harassment finding that the ordinance employment section does not support claims against persons in their individual capacities. The hearing examiner denied the motion as to retaliation finding that the ordinance retaliation section was intended to cover individuals, as well as employer actions.

On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment status.

The Complainant also alleged emotional distress damages stemming from alleged acts of sexual harassment and retaliation, the hearing examiner found that the MEOO is not preempted by the Wisconsin Worker's Compensation Act's (WCA) exclusivity provision. Therefore, parties may seek remedy under either the WCA or the ordinance or both. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

The hearing examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99).

Complainant filed a charge of discrimination based on age discrimination against Respondent, a non-profit religious organization. The court ruled that MEOC could not include the Respondent as an "employer" because state law, at that time, specifically and expressly did not allow non-profit religious organizations to be deemed as employers. St. Vincent De Paul Society v. MEOC, No. 83-1105 (Ct. App. 10/25/84).

An employer has a duty to follow through when it indicates an employee's job status will be reviewed at a later date. Rosin v. Rite-Way Leasing Company, MEOC Case No. 19982206 (Comm. Dec. 4/22/02, Ex. Dec. 10/3/01).

After the Complainant was rejected for several part-time jobs bagging groceries, she filed a complaint with the Equal Opportunities Commission, claiming the Respondent had discriminated against her based upon her disability and conviction record. The Respondent moved to dismiss the complaint for lack of jurisdiction. According to the Respondent, the Commission lacked geographical jurisdiction because decisions about hiring new employees were made in Milwaukee, not Madison. Thus, the Complainant could not have been discriminated against in Madison. The Hearing Examiner ruled that the Commission did have jurisdiction. The determining factors were: (1) incongruity with State courts on the question of geographical jurisdiction-whether discrimination "occurs" where the challenged decision was made or where the impact was felt--would produce anomalous results and would serve no useful purpose, and (2) the Hearing Examiner could not have found lack of jurisdiction without undermining the public policy of the City of Madison. Williams (f/k/a Stevenson) v. Copps Food Center, MEOC Case No. 20042113 (Ex. Dec. 2/9/2005).

212.2 Labor Organizations

212.3 Licensing and Employment Agencies

212.4 Other Person/Organization

212.5 Respondent's Responsibility for Acts of Agents

The Hearing Examiner found that the Complainant could maintain an action against the Respondent for alleged sexual harassment by an employee of the Respondent's general contractor. The Hearing Examiner found that the Complainant must be allowed to prove either that the Respondent knew of the likelihood of injuries, could have taken steps to prevent the injuries and did not, or that the Respondent negligently supervised the performance of the contract. Thompson v. St. Mary's Hospital Medical Center, MEOC Case No. 21734 (Ex. Dec. 3/8/94).

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

212.9 Miscellaneous

The Complainant filed charges alleging that the Respondent, a joint private-public commission, did not hire her because of her race, sex and handicap/disability. The hearing examiner determined that the Respondent was not a properly named party because the Respondent's functions were only ministerial. The Respondent was not responsible for the hiring of the position and did not oversee it and had no management authority over the position. Rhyne v. Employment & Training Association, MEOC Case No. 22723 (Ex. Dec. 4/6/99).

The hearing examiner concluded that the Commission was without jurisdiction over the allegations of the complaint because the legislature had retained control over the Complainant's position as a Diagnostic Radiologic Technician. The Complainant was employed by the University Hospital and Clinics Board which is an agency of the state of Wisconsin. The legislature specifically provided for exclusive jurisdiction for the Personnel Commission over state employees, thus, depriving the Commission of jurisdiction. Carey v. UW Health, MEOC Case No. 19992097 (Ex. Dec. 8/17/99).

A respondent has no obligation to make contact with a law enforcement entity when there is no evidence of criminal conduct at the worksite. An employer did not fail to provide an environment free of sexual harassment when it acted promptly upon being notified of possible harassment. Pflaum v. Union Transfer and Storage, Inc., MEOC Case No. 20002092 (Ex. Dec. 4/5/02).

In this age and sex discrimination case, the Respondent moved to dismiss the complaint against the American Red Cross (ARC) for lack of subject matter jurisdiction. The Hearing Examiner granted the Respondent's motion on the grounds that ARC is not an "integrated employer" and ARC did not exercise control over the terms and conditions of the Complainant's work. The Respondent also moved for summary judgment on the merits in favor of the American Red Cross, Badger Chapter. However, the Hearing Examiner denied this motion on the ground that once a case has been certified to a hearing on the merits, the case must go to hearing. Birk v. American Red Cross, Badger Chapter, MEOC Case No. 20062041 (Ex. Dec. 4/9/10).

In this age discrimination case, the Respondent moved to dismiss the complaint against the American Red Cross (ARC) for lack of subject matter jurisdiction. The Hearing Examiner granted the Respondent's motion on the grounds that ARC is not an "integrated employer" and ARC did not exercise control over the terms and conditions of the Complainant's work. The Respondent also moved for summary judgment on the merits in favor of the American Red Cross, Badger Chapter.  However, the Hearing Examiner denied this motion on the ground that once a case has been certified to a hearing on the merits, the case must go to hearing. As for the Respondent's motion to dismiss individual defendants, the Hearing Examiner held that he would take the motion under advisement pending further development of the record. Schwartz v. American Red Cross, Badger Chapter, MEOC Case No. 20062003 (Ex. Dec. 4/9/10).

213 Effect of Other Laws on MEOO Rights and Remedies

After the Investigator/Conciliator issued an Initial Determination of probable cause that the Respondent had discriminated against Complainant in employment on the basis of his conviction record, and attempts at conciliation failed, the matter was transferred to the Hearing Examiner for further proceedings.

At the Pre-Hearing Conference, the Complainant indicated that he wanted to file for judgment of the pleading based on the existing record, and shortly thereafter filed further supportive materials. Respondent filed both a response to Complainant and a request for dismissal of the complaint due to lack of standing. The Hearing Examiner dismissed both motions.

Complainant's request is based on the procedures of the Wisconsin Department of Workforce Development (DWD) Equal Rights Division (ERD), whose processes and procedures are entirely inapplicable to complaints filed with the Department of Civil Rights. Provisions of the Wisconsin Fair Employment Act Wis. Stats. 111.30 et seq. do not mandate any particular outcome for a complaint filed under the Madison Equal Opportunities Ordinance. Case law developed under different statutes may be useful in assisting a decision maker to the extent that similar purposes and similar language may be helpful in enlightening interpretation of a piece of legislation, but for the most part, decisions interpreting different laws do not have binding results on the interpretation of a law at different level of government. See McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 830 (Ct. App. 1988).

Respondent's motion is framed as a motion to dismiss due to Complainant's lack of standing because the record does not demonstrate that Complainant actually applied for employment, but given Respondent's arguments which address the sufficiency of the arguments in the record rather than the Department's jurisdiction, the Hearing Examiner sees the Respondent's motion as one for summary judgment. Respondent contends that the Initial Determination of probable cause was erroneous and that a hearing should not be required. The Rules of the Equal Opportunities Commission at rule 5.21 make clear that only a finding of no probable cause is appealable. The rules are structured in this manner to protect the due process rights of both parties, in that the Complainant has the opportunity to challenge a finding of no probable cause that would otherwise dispose of the Complainant's interests, while the Respondent's rights are protected by assuring it the right to defend itself at a hearing.

The Hearing Examiner treated both requests as forms of motion for summary judgment, and informed both parties that the Commission did not accept motions for summary judgment unless they go to the jurisdiction of the Department. This has been the position of the Department as far back as 1989. In the case of Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 04/05/89), the Hearing Examiner found that the Rules of the Equal Opportunities Commission state a preference to hearing once a complaint has been certified to hearing, and told the Complainant who had moved for summary judgment that such motions were not available. The Rhone decision has been followed by subsequent hearing Examiners. See Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

The Hearing Examiner found no merit in either party's motion, and proceeded to hearing. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

213.1 Federal Laws

Respondents moved to dismiss an allegation of discrimination on the basis of political beliefs (unlawful interference with unionization efforts) based on preemption by the National Labor Relations Act (NLRA). The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. The Hearing Examiner recognized that, had the Complainant's political beliefs been limited to vocal support for the idea of a union, it is possible that the Hearing Examiner would not find preemption. One key difference between the NLRA and the ordinance appears to exist along the line of activity as opposed to thought. Zitnick v. Capitol Lakes, MEOC Case No. 20092085 (Ex. Dec. 3/2/10).

The Respondent argued that the Federal Arbitration Act requires the Madison Department of Civil Rights, Equal Opportunities Division to either dismiss or stay the Complainant's allegations of age discrimination and retaliation. The Respondent requested that the Hearing Examiner order the parties to submit to mediation and arbitration pursuant to the Respondent's Employee Dispute Resolution Plan. The Hearing Examiner found that the Plan constituted a valid agreement to resolve disputes arising under the Plan and that it was neither procedurally nor substantively unconscionable. Thus, the Hearing Examiner ordered the parties to submit to mediation and arbitration. However, the Hearing Examiner stayed rather than dismissed the case to ensure that the Complainant had a forum available for review of the arbitrator's decision. Witten v. Firestone Complete Auto Care, MEOC Case No. 20092026 (Ex. Dec. 9/8/10).

The Complainant alleged that the Respondent, in denying his application for Section 8 housing, discriminated against him on the bases of color, arrest record, and conviction record. In its answer to the complaint, the Respondent moved to dismiss the case for lack of personal jurisdiction and for lack of subject matter jurisdiction. The Hearing Examiner found that the Equal Opportunities Division (EOD) has personal jurisdiction over the Respondent because, although the Respondent may be an independent body politic, it is nevertheless an agent of the City of Madison. The provisions of the Equal Opportunities Ordinance prohibit discrimination in the provision of housing by the City of Madison or by an agent of the City. As for the Respondent's motion to dismiss for lack of subject matter jurisdiction, the Hearing Examiner held that a jurisdictional determination would be premature because the Respondent's motion interrupted the EOD's investigative process. Therefore, the Hearing Examiner remanded the Complainant's claims of arrest and conviction record discrimination to an Investigator/Conciliator for further investigation and the issuance of an Initial Determination. The Hearing Examiner ordered that the Complainant's color discrimination claim be transferred to either the Department of Workforce Development or to Housing and Urban Development. Brown v. CDA, MEOC Case No. 20101085 (Ex. Dec. 01/20/2011).

213.2 Wisconsin Fair Employment Act

Complainant alleged she was not given the same opportunities as other persons not of her protected classes and that she was terminated because she was a Black lesbian. Respondent filed a motion in limine to prevent the Complainant from taking any discovery or introducing any testimony relating to Complainant's compensatory, punitive or emotional damages, arguing that the Commission is without statutory authority to make an award of such damages and in fact, is preempted from doing so by the Wisconsin Fair Employment Act.

The Respondent further argued that the Wisconsin Worker's Compensation Act provides the exclusive remedy for emotional damage awards where emotional injury arises out of the employment context. The Hearing Examiner determined that the WFEA did not preempt the ordinance by comprehensively regulating the field of employment discrimination.

The Hearing Examiner found that the Commission did have the authority to make awards of compensatory damages for emotional injuries that resulted from acts of discrimination, since loss of equal employment opportunity and violation of civil rights fall outside of coverage of the Worker's Compensation Act. Cooper v. TCI Cablevision of Wisconsin, MEOC Case No. 21036 (Ex. Dec. 4/16/91).

The City consented to an Order Granting Absolute Writ of Prohibition, prohibiting MEOC from exercising jurisdiction to hear claims against the petitioner in matters of alleged employment discrimination or public accommodation discrimination where the question involved is one of a student's academic performance. State ex rel. Area Vocational, Technical and Adult Education District No. 4 v. Equal Opportunities Commission of the City of Madison and Clifford E. Blackwell, 91 CV 1537 (Dane County Cir. Ct. 7/29/91).

The Complainant alleged she was the subject of sexual harassment by other employees which caused emotional distress and ultimately led her to leave her employment. Respondent filed a motion to dismiss for lack of jurisdiction, asserting that the Worker's Compensation Act barred the Complainant's claim. The Hearing Examiner held that the agency had jurisdiction, finding an implied exception to the exclusivity of the Worker's Compensation Act. Because the legislature adopted the Fair Employment Act and its specific protections regarding sexual harassment long after it adopted the WCA, it cannot have adopted the FEA only to have it rendered meaningless by the previously adopted WCA. Madalon v. Midcontinent Broadcasting; WTSO-AM/WZEE-FM, MEOC Case No. 21531 (Ex. Dec. 1/5/93).

The Respondent moved to dismiss because of a conflict in the extent of exemptions provided for the employment activities of religious organizations in both the Wisconsin Fair Employment Act (FEA) and the ordinance. The Hearing Examiner found that the Commission could exercise jurisdiction but only to the extent provided in the FEA. Potter v. Madison Gospel Tabernacle, MEOC Case No. 21269 (Ex. Dec. 2/14/94).

Where the Respondent moved to dismiss the complaint for lack of jurisdiction alleging the Commission is without jurisdiction to address the allegation of conviction record discrimination because the Commission is preempted by state and federal law, the Examiner ruled that although not preempted by the Wisconsin Fair Employment Act, the Ordinance was preempted by the applicable federal statute that automatically disqualified an individual from employment who had been convicted of a crime involving injury to another person. Respondent provides physical and related care of elderly and/or developmentally disabled persons. Complainant was convicted of second degree sexual assault stemming from an allegedly consensual sexual relationship with a 15-year-old male. Pagel v. Elder Care of Dane County, MEOC Case No. 22442 (Ex. Dec. 10/31/96).

The Respondent moved to dismiss the complaint for lack of jurisdiction because of the differences in remedial authority of the FEA and the Equal Opportunities Ordinance. The Hearing Examiner determined that previous decisions by the Wisconsin Supreme Court have upheld the ordinance's validity in the face of a potential conflict with the FEA. On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

In a case involving allegations of retaliation for the exercise of a right protected by the ordinance, the Respondent, a school district, moved to dismiss the complaint for lack of subject matter jurisdiction. The Respondent’s contentions supporting dismissal fall into three general assertions. First, the Respondent argues that matters of employment, such as hiring and firing personnel, are matters of state wide concern and therefore such matters are beyond the purview of the city's local equal opportunities ordinance. Second, the Respondent maintains that it is an agent of the state and as such it is not subject to the Equal Opportunities Division's (EOD) jurisdiction. Third, the Respondent contends that, even if the EOD has jurisdiction, a recently enacted state law expressly divests the EOD of the authority to award compensatory or punitive damages against a school district. The Hearing Examiner found that the issue of employment discrimination constitutes both a statewide and a local concern. Since the Respondent failed to demonstrate a discernible conflict of laws, the Hearing Examiner concluded that the EOD is permitted to enforce the ordinance. In addition, while conceding that the EOD is without jurisdiction to issue punitive damages awards, the Hearing Examiner found that state law neither expressly nor impliedly withdraws power from the EOD to issue an award of compensatory damages against a school district. Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 06/09/11).

After the Investigator/Conciliator issued an Initial Determination of probable cause that the Respondent had discriminated against Complainant in employment on the basis of his conviction record, and attempts at conciliation failed, the matter was transferred to the Hearing Examiner for further proceedings.

At the Pre-Hearing Conference, the Complainant indicated that he wanted to file for judgment of the pleading based on the existing record, and shortly thereafter filed further supportive materials. Respondent filed both a response to Complainant and a request for dismissal of the complaint due to lack of standing. The Hearing Examiner dismissed both motions.

Complainant's request is based on the procedures of the Wisconsin Department of Workforce Development (DWD) Equal Rights Division (ERD), whose processes and procedures are entirely inapplicable to complaints filed with the Department of Civil Rights. Provisions of the Wisconsin Fair Employment Act Wis. Stats. 111.30 et seq. do not mandate any particular outcome for a complaint filed under the Madison Equal Opportunities Ordinance. Case law developed under different statutes may be useful in assisting a decision maker to the extent that similar purposes and similar language may be helpful in enlightening interpretation of a piece of legislation, but for the most part, decisions interpreting different laws do not have binding results on the interpretation of a law at different level of government. See McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 830 (Ct. App. 1988).

Respondent's motion is framed as a motion to dismiss due to Complainant's lack of standing because the record does not demonstrate that Complainant actually applied for employment, but given Respondent's arguments which address the sufficiency of the arguments in the record rather than the Department's jurisdiction, the Hearing Examiner sees the Respondent's motion as one for summary judgment. Respondent contends that the Initial Determination of probable cause was erroneous and that a hearing should not be required. The Rules of the Equal Opportunities Commission at rule 5.21 make clear that only a finding of no probable cause is appealable. The rules are structured in this manner to protect the due process rights of both parties, in that the Complainant has the opportunity to challenge a finding of no probable cause that would otherwise dispose of the Complainant's interests, while the Respondent's rights are protected by assuring it the right to defend itself at a hearing.

The Hearing Examiner treated both requests as forms of motion for summary judgment, and informed both parties that the Commission did not accept motions for summary judgment unless they go to the jurisdiction of the Department. This has been the position of the Department as far back as 1989. In the case of Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 04/05/89), the Hearing Examiner found that the Rules of the Equal Opportunities Commission state a preference to hearing once a complaint has been certified to hearing, and told the Complainant who had moved for summary judgment that such motions were not available. The Rhone decision has been followed by subsequent hearing Examiners. See Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

The Hearing Examiner found no merit in either party's motion, and proceeded to hearing. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

213.3 Workers Compensation Act

Complainant alleged she was not given the same opportunities as other persons not of her protected classes and that she was terminated because she was a Black lesbian. Respondent filed a motion in limine to prevent the Complainant from taking any discovery or introducing any testimony relating to Complainant's compensatory, punitive or emotional damages, arguing that the Commission is without statutory authority to make an award of such damages and in fact, is preempted from doing so by the Wisconsin Fair Employment Act. The Respondent further argued that the Wisconsin Worker's Compensation Act provides the exclusive remedy for emotional damage awards where emotional injury arises out of the employment context. The Hearing Examiner determined that the WFEA did not preempt the ordinance by comprehensively regulating the field of employment discrimination. The Hearing Examiner found that the Commission did have the authority to make awards of compensatory damages for emotional injuries that resulted from acts of discrimination, since loss of equal employment opportunity and violation of civil rights fall outside of coverage of the Worker's Compensation Act. Cooper v. TCI Cablevision of Wisconsin, MEOC Case No. 21036 (Ex. Dec. 4/16/91).

The Complainant alleged she was the subject of sexual harassment by other employees which caused emotional distress and ultimately led her to leave her employment. Respondent filed a motion to dismiss for lack of jurisdiction, asserting that the Worker's Compensation Act barred the Complainant's claim. The Hearing Examiner held that the agency had jurisdiction, finding an implied exception to the exclusivity of the Worker's Compensation Act. Because the legislature adopted the Fair Employment Act and its specific protections regarding sexual harassment long after it adopted the WCA, it cannot have adopted the FEA only to have it rendered meaningless by the previously adopted WCA. Madalon v. Midcontinent Broadcasting; WTSO-AM/WZEE-FM, MEOC Case No. 21531 (Ex. Dec. 1/5/93).

The Complainant filed a discrimination claim against the Respondent for refusing to reasonably accommodate her disability, carpal tunnel syndrome or repetitive motion syndrome. The Complainant later amended her complaint to include sex discrimination. Respondent filed a motion to dismiss on the basis that the claim was preempted by the exclusivity provision of the Wisconsin Worker's Compensation Act. (WCA)

The Hearing Examiner found the Commission to have jurisdiction to investigate the complaint. With respect to the claim of sex discrimination the Examiner determined that there was no overlap of jurisdiction between the ordinance and the WCA and that the Complainant's allegation of sex discrimination did not represent a ruse to bring her claim of handicap/disability discrimination before the Commission.

With respect to the claim of handicap/disability discrimination, the Hearing Examiner concluded that the WCA's purpose of compensating an employee for an injury did not overlap with the ordinance's intent to assure an employee the highest level of employment given an employee's handicap/disability. While recognizing that some damages might overlap, the Hearing Examiner found that the complaint should be permitted to be processed through investigation to determine whether such an overlap might in fact exist. The Commission adopted the Examiner's decision in its entirety.

The Circuit Court reversed the Commission's finding of jurisdiction over the allegation of handicap/disability discrimination as a result of the Commission's withdrawing its decision on this point. The Circuit Court did not discuss this issue. The Court affirmed the Commission's finding of jurisdiction on the allegation of sex discrimination, finding no overlap between the WCA's provisions and those of the ordinance. Schoenemann v. Madison Gas and Electric, MEOC Case No. 21699 (Comm. Dec. 1/28/93, Ex. Dec. 7/31/92). Madison Gas and Electric Co. v. Equal Opportunities Commission of the City of Madison and Schoenemann, 93 CV 0894 (Dane County Cir. Ct. 11/22/93).

The Respondent's motion to dismiss for lack of jurisdiction was based on a conflict between the WCA and the EOO was denied. The Hearing Examiner determined that, due to the Court of Appeals' decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison, the remedies remaining to the Commission are not in conflict with the remedies under the WCA. Should the Common Council make the Commission's authority to award compensatory damages in employment cases clear, the issue of preemption by the exclusivity principle may once again be raised as a bar to the Commission's proceeding. Puent v. Corning Besselaar Clinical Research Units, Inc., MEOC Case No. 22366 (Ex. Dec. On jurisdiction 1/10/97).

Respondent contended that the exclusivity provision of the WCA required dismissal of the complaint. The Hearing Examiner determined, in accordance with the Wisconsin Supreme Court's decision in Byers v. LIRC, 208 Wis. 2d 388 (1997) that individuals can pursue remedies under either or both laws. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex Dec. on jurisdiction 4/28/97, 8/10/99).

The Hearing Examiner denied Respondent's motion to dismiss the complaint based on the exclusivity principle of the Workers Compensation Act. The Wisconsin Supreme Court in Byers v. LIRC, 208 Wis. 2d 388 (1997) determined that the WCA was not necessarily the exclusive remedy for claims of sexual harassment. The Hearing Examiner determined that though the Byers decision applied to the Wisconsin Fair Employment Act, the rationale applied equally to the Madison EOO. Harvey v. Marshall Erdman & Associates, MEOC Case No. 21614 (Ex. Dec. 5/9/97).

Complainant filed a charge of discrimination based on sexual harassment and retaliation against the Respondent in his individual capacity. The hearing examiner granted Respondent's motion to dismiss as to sexual harassment finding that the ordinance employment section does not support claims against persons in their individual capacities. The hearing examiner denied the motion as to retaliation finding that the ordinance retaliation section was intended to cover individuals, as well as employer actions.

The Complainant also alleged emotional distress damages stemming from alleged acts of sexual harassment and retaliation, the hearing examiner found that the MEOO is not preempted by the Wisconsin Worker's Compensation Act's (WCA) exclusivity provision. Therefore, parties may seek remedy under either the WCA or the ordinance or both.

The hearing examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

213.9 Miscellaneous

As a general proposition, municipal ordinances may contain bases of discrimination more inclusive than the bases of discrimination listed in Section 66.432, Wis. Stats. and 101.22, Wis. Stats. Atty. Gen. Opinion, OAG-46-85 (12/17/85).

The Hearing Examiner found that Complainant's claim of age and sex discrimination had to be arbitrated as required by the Complainant's employment contract. The Hearing Examiner retained jurisdiction to permit review of the arbitrator's decision so that the Commission could ensure that the purposes of the ordinance had been met. Schultz v. Caluori & Shearson Lehman Hutton, Inc., MEOC Case No. 21259 (Ex. Dec. 7/16/91).

The Respondent filed a wide ranging Motion to Dismiss for lack of jurisdiction stating a variety of statutory, constitutional and procedural grounds. The Hearing Examiner found that the Respondent's claims that it was not capable of being sued because of the operation of Wis. Stats. Sec. 893.80(4) were inapplicable because actions before the Commission were not actions for intentional torts.

Also, the Hearing Examiner relied on Wis. Stats. Sec. 893.80(5) to find an exception to the prohibition against suits for the exercise of quasi-judicial power such as hiring. This section provided that the prohibition did not apply where there was another statute that provides rights and remedies. The Hearing Examiner determined that the Fair Employment Act and by extension, the Ordinance was such "another statute."

The Respondent contended that the ordinance as applied by the Commission represented an unconstitutional vesting of judicial authority in the Commission. The Hearing Examiner concluded that because the ordinance provided for appropriate judicial review that the Commission was acting within constitutional limits.

Additionally, the Respondent asserted that to the extent that the Commission exercised its authority to award emotional and other compensatory damages, it violated the Respondent's right to a jury trial under the State and Federal constitutions. The Hearing Examiner ruled that because this type of administrative action was not present in the common law at the time of statehood that the Wisconsin constitution's provision for jury trial did not apply. The Hearing Examiner also stated that the 7th amendment's right to a jury trial had not been imposed upon the states by the 14th amendment and was therefore not a bar to the Commission's actions.

The Hearing Examiner determined that the Complainant had stated a claim for pattern and practice discrimination that would allow proof of acts outside of the ordinance's 300 day limit for the filing of complaints. Since the Respondent had notice of this claim, it was premature to rule on the sufficiency of the claim and that the Complainant should be permitted to attempt to prove the allegations at hearing. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

Respondents' moved to dismiss complaints of discrimination on the basis of political belief (trade unionism) based on preemption by federal law. The Complainants had filed unfair labor practice complaints at approximately the same time as their Commission complaints. The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. Moyer, Carey and Kaatz v. Thrift Painting and Genesis Companies Inc., EOC Case Nos. 22440, 22441, 22447, 22448, 22449, and 22450 (Ex. Dec. 7/7/97).

The hearing examiner concluded that the Commission was without jurisdiction over the allegations of the complaint because the legislature had retained control over the Complainant's position as a Diagnostic Radiologic Technician. The Complainant was employed by the University Hospital and Clinics Board which is an agency of the state of Wisconsin. The legislature specifically provided for exclusive jurisdiction for the Personnel Commission over state employees, thus, depriving the Commission of jurisdiction. Carey v. UW Health, MEOC Case No. 19992097 (Ex. Dec. 8/17/99).

In a case involving allegations of retaliation for the exercise of a right protected by the ordinance, the Respondent, a school district, moved to dismiss the complaint for lack of subject matter jurisdiction. The Respondent’s contentions supporting dismissal fall into three general assertions. First, the Respondent argues that matters of employment, such as hiring and firing personnel, are matters of state wide concern and therefore such matters are beyond the purview of the city's local equal opportunities ordinance. Second, the Respondent maintains that it is an agent of the state and as such it is not subject to the Equal Opportunities Division's (EOD) jurisdiction. Third, the Respondent contends that, even if the EOD has jurisdiction, a recently enacted state law expressly divests the EOD of the authority to award compensatory or punitive damages against a school district. The Hearing Examiner found that the issue of employment discrimination constitutes both a statewide and a local concern. Since the Respondent failed to demonstrate a discernible conflict of laws, the Hearing Examiner concluded that the EOD is permitted to enforce the ordinance. In addition, while conceding that the EOD is without jurisdiction to issue punitive damages awards, the Hearing Examiner found that state law neither expressly nor impliedly withdraws power from the EOD to issue an award of compensatory damages against a school district. Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 06/09/11).

In this matter, the Respondent filed a motion similar to that which it filed in Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 6/9/11). In addition to the grounds stated in the earlier motion, in the present matter, the Respondent contended that the Consent Decree entered in State ex rel. Area Vocational, Technical and Adult Education District No. 4, by its Board v. Equal Opportunities Commission of the City of Madison (the MATC case) required similar treatment of the Respondent. The Hearing Examiner incorporated by reference his decision in Rhyne and found that the Respondent's argument concerning the Consent Decree in the MATC case was inadequate to deprive the Madison Department of Civil Rights, Equal Opportunities Division of jurisdiction in this matter. Specifically, there is no evidence of what motivated the parties to enter into the Consent Decree and the Respondent posited only a superficial similarity between it and the MATC. Accordingly, the Hearing Examiner dismissed the Respondent's motion. Banks v. Madison Metropolitan School District, MEOC Case No. 20102172 (Ex. Dec. 8/3/11).

220-240 PROHIBITED BASES OF EMPLOYMENT DISCRIMINATION

220 Age Discrimination

220.1 Coverage, Exceptions

220.11 Lower Age Limit

220.12 Upper Age Limit

Complainant was ostensibly terminated for acquiring property from her employer with an IOU, which violated store policy regarding payment of the full purchase price. Although other employees were involved in the transaction, Complainant--who was more than ten years older than her coworkers--was the only employee disciplined. Respondent maintained that Complainant was actually terminated for shopping on the clock, but the fact that Complainant alone was disciplined, while younger coworkers were spared, was sufficient to demonstrate age discrimination. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

The Hearing Examiner found that the Complainant had failed to meet her burden of proof on either claim of discrimination and therefore dismissed the complaint. The Complainant contended that the Respondent had discriminated against her on the basis of her age (she was approximately 15 years older than most of her coworkers) and on the basis of race by association (she had befriended one of the few African-American assembly workers). Schulz v. Ultratec, Inc., MEOC Case No. 21584 (Ex. Dec. 9/2/94).

220.13 Hazardous Occupations

220.14 Preemption

The Madison Equal Opportunities Commission may not interpret municipal statutes such as the Madison Equal Opportunities Ordinance cannot provide remedies that conflict with remedies provided under state or federal law. Municipal ordinances may not preempt state regulation in the same area. Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

Respondents moved to dismiss an allegation of discrimination on the basis of political beliefs (unlawful interference with unionization efforts) based on preemption by the National Labor Relations Act (NLRA). The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. The Hearing Examiner recognized that, had the Complainant's political beliefs been limited to vocal support for the idea of a union, it is possible that the Hearing Examiner would not find preemption. One key difference between the NLRA and the ordinance appears to exist along the line of activity as opposed to thought. Zitnick v. Capitol Lakes, MEOC Case No. 20092085 (Ex. Dec. 3/2/10).

The Respondent argued that the Federal Arbitration Act requires the Madison Department of Civil Rights, Equal Opportunities Division to either dismiss or stay the Complainant's allegations of age discrimination and retaliation. The Respondent requested that the Hearing Examiner order the parties to submit to mediation and arbitration pursuant to the Respondent's Employee Dispute Resolution Plan. The Hearing Examiner found that the Plan constituted a valid agreement to resolve disputes arising under the Plan and that it was neither procedurally nor substantively unconscionable. Thus, the Hearing Examiner ordered the parties to submit to mediation and arbitration. However, the Hearing Examiner stayed rather than dismissed the case to ensure that the Complainant had a forum available for review of the arbitrator's decision. Witten v. Firestone Complete Auto Care, MEOC Case No. 20092026 (Ex. Dec. 9/8/10).

In a case involving allegations of retaliation for the exercise of a right protected by the ordinance, the Respondent, a school district, moved to dismiss the complaint for lack of subject matter jurisdiction. The Respondent’s contentions supporting dismissal fall into three general assertions. First, the Respondent argues that matters of employment, such as hiring and firing personnel, are matters of state wide concern and therefore such matters are beyond the purview of the city’s local equal opportunities ordinance. Second, the Respondent maintains that it is an agent of the state and as such it is not subject to the Equal Opportunities Division’s (EOD) jurisdiction. Third, the Respondent contends that, even if the EOD has jurisdiction, a recently enacted state law expressly divests the EOD of the authority to award compensatory or punitive damages against a school district. The Hearing Examiner found that the issue of employment discrimination constitutes both a statewide and a local concern. Since the Respondent failed to demonstrate a discernible conflict of laws, the Hearing Examiner concluded that the EOD is permitted to enforce the ordinance. In addition, while conceding that the EOD is without jurisdiction to issue punitive damages awards, the Hearing Examiner found that state law neither expressly nor impliedly withdraws power from the EOD to issue an award of compensatory damages against a school district. Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 06/09/11).

In this matter, the Respondent filed a motion similar to that which it filed in Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 6/9/11). In addition to the grounds stated in the earlier motion, in the present matter, the Respondent contended that the Consent Decree entered in State ex rel. Area Vocational, Technical and Adult Education District No. 4, by its Board v. Equal Opportunities Commission of the City of Madison (the MATC case) required similar treatment of the Respondent. The Hearing Examiner incorporated by reference his decision in Rhyne and found that the Respondent's argument concerning the Consent Decree in the MATC case was inadequate to deprive the Madison Department of Civil Rights, Equal Opportunities Division of jurisdiction in this matter. Specifically, there is no evidence of what motivated the parties to enter into the Consent Decree and the Respondent posited only a superficial similarity between it and the MATC. Accordingly, the Hearing Examiner dismissed the Respondent's motion. Banks v. Madison Metropolitan School District, MEOC Case No. 20102172 (Ex. Dec. 8/3/11).

Respondent sought to have complaint alleging discrimination on the basis of conviction record in failing or refusing to hire or wrongful termination of employment dismissed for a lack of jurisdiction because of preemption of state statutes relating to the licensing of private security guards. (Wis. Stats. Sec. 440.2) Respondent argued that state licensing guidelines (which place no time limits on conviction record) override the Madison Equal Opportunity Ordinance, which stipulates that only conviction records within the last three years and substantially related to job duties may be considered by the employer. In the present matter, the conviction occurred well outside of the three-year period specified in the ordinance. Permits to become a private security person in Wisconsin are issued by the Department of Safety and Professional Services (DSPS), which is to apply the standards of the Wisconsin Fair Employment Act (FEA) (Wis. Stats. Secs. 111.31-111.395) requiring a determination that a conviction is substantially related to the duties of the job. As there is nothing in the record indicating that there has been any actual application of Wis. Stats. Sec. 440.26 to the facts in this matter, and, absent some determination on the part of the Department (DSPS), the Hearing Examiner finds that it is not possible to determine whether the Complainant was lawfully barred from employment by action of state law. Further, as the ordinance recognizes as a limitation convictions that prohibit an individual from obtaining required licenses, it does not appear that the ordinance would conflict with the provisions of Wis. Stats. Sec. 440.26 regardless of the time frame stated in either the FEA or the ordinance with respect to the conviction in question in this complaint. Respondent's motion to dismiss is denied. Barry v. Total Security Mgmt., MEOC Case No. 20122076 (Ex. Dec. 11/27/2012).

After the Investigator/Conciliator issued an Initial Determination of probable cause that the Respondent had discriminated against Complainant in employment on the basis of his conviction record, and attempts at conciliation failed, the matter was transferred to the Hearing Examiner for further proceedings.

At the Pre-Hearing Conference, the Complainant indicated that he wanted to file for judgment of the pleading based on the existing record, and shortly thereafter filed further supportive materials. Respondent filed both a response to Complainant and a request for dismissal of the complaint due to lack of standing. The Hearing Examiner dismissed both motions.

Complainant's request is based on the procedures of the Wisconsin Department of Workforce Development (DWD) Equal Rights Division (ERD), whose processes and procedures are entirely inapplicable to complaints filed with the Department of Civil Rights. Provisions of the Wisconsin Fair Employment Act Wis. Stats. 111.30 et seq. do not mandate any particular outcome for a complaint filed under the Madison Equal Opportunities Ordinance. Case law developed under different statutes may be useful in assisting a decision maker to the extent that similar purposes and similar language may be helpful in enlightening interpretation of a piece of legislation, but for the most part, decisions interpreting different laws do not have binding results on the interpretation of a law at different level of government. See McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 830 (Ct. App. 1988).

Respondent's motion is framed as a motion to dismiss due to Complainant's lack of standing because the record does not demonstrate that Complainant actually applied for employment, but given Respondent's arguments which address the sufficiency of the arguments in the record rather than the Department's jurisdiction, the Hearing Examiner sees the Respondent's motion as one for summary judgment. Respondent contends that the Initial Determination of probable cause was erroneous and that a hearing should not be required. The Rules of the Equal Opportunities Commission at rule 5.21 make clear that only a finding of no probable cause is appealable. The rules are structured in this manner to protect the due process rights of both parties, in that the Complainant has the opportunity to challenge a finding of no probable cause that would otherwise dispose of the Complainant's interests, while the Respondent's rights are protected by assuring it the right to defend itself at a hearing.

The Hearing Examiner treated both requests as forms of motion for summary judgment, and informed both parties that the Commission did not accept motions for summary judgment unless they go to the jurisdiction of the Department. This has been the position of the Department as far back as 1989. In the case of Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 04/05/89), the Hearing Examiner found that the Rules of the Equal Opportunities Commission state a preference to hearing once a complaint has been certified to hearing, and told the Complainant who had moved for summary judgment that such motions were not available. The Rhone decision has been followed by subsequent hearing Examiners. See Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

The Hearing Examiner found no merit in either party's motion, and proceeded to hearing. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

220.2 Hire

It was not age discrimination to select a younger job applicant over a 35-year-old with more experience because: (1) the job involved team teaching and the principal who made the hiring decision believed, based on information in the complainant's employment pool interview summary, that the younger teacher could interact more favorably with other faculty members; (2) the younger teacher was multilingual (as required by one of the job specifications) and had spent more time overseas than the complainant; and (3) the employer had hired at least 20 teachers at or above the complainant's experience level, including some recommended by the same principal who was involved in this case. Lazar v. Madison Metro. Sch. Dist., MEOC Case No. 2472 (Comm. Dec. 6/26/81, Ex. Dec. 12/16/80).

Although a job applicant's training and experience clearly exceeded that of the individual, who was hired, the employer's concerns about the applicant's working relations with the staff and her telephone manner justified its decision not to hire her as a telephone communications coordinator. Strachan v. Independent Living, No. 2778 (Ex. Dec. 8/24/82).

A complainant established a prima facie case of age discrimination by showing that (1) s/he was 18 years of age or older, (2) s/he applied for or worked at a job for which s/he was qualified, (3) s/he was affected by an adverse employment decision, and (4) the employer continued to seek applicants with her qualifications; . . . but these elements may be altered to fit each particular case (e.g., where the job is abolished after a complainant's discharge); . . .and a complainant need only show that age was a causative or determinative factor. State Medical Society v. MEOC (May), No. 82-CV-2560 (Dane County Cir. Ct., 3/2/83).

Where one of the complainant's own references said that the complainant (while extremely competent, very well educated and very well qualified) had interpersonal problems getting along with people and working well with people, the complainant was unable to show that the employer's belief that the younger applicant it hired could get along better with co-workers and others was a pretext for age discrimination. Lindas v. MATC, MEOC Case No. 20256 (Ex. Dec. 3/11/85).

The Respondent discriminated against the Complainant, an Asian-American woman, on the basis of her race by failing or refusing to hire her. The Complainant applied for a position as bus person but was not hired whereas persons of other races were hired during the same time frame. [Complainant's claim of discrimination on the basis of national origin failed because she presented no evidence that the Respondent knew that she was a Korean American] The Respondent was ordered to cease and desist from discriminating against the Complainant and other prospective employees. The Complainant was awarded $2,939.00 in back pay, $750.00 in emotional damages, attorney's fees and costs. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

220.3 Compensation, Benefits

220.4 Conditions of Employment

220.5 Termination-Age

A 61-year-old employee did not prove age discrimination where he was unable to perform essential lifting duties required of the job. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

Although an employee's new supervisor had never specifically warned her, either verbally or in writing, of any particular deficiencies regarding three workplace incidents or any other reservations he might have had about her attitude or work performance, the employee nevertheless failed to prove that the employer's articulated reasons for her discharge were a pretext for age discrimination; while her discharge without warning after approximately six years of service in the dining facility was a questionable employment practice, the complainant failed to show it was discriminatory. Starin v. Elks Club, MEOC Case No. 2871 (Ex. Dec. 9/14/82).

A 49-year-old woman manager who was abruptly terminated from her job and replaced by a younger woman failed to show the employer's articulated reasons were a pretext for age discrimination. The complainant failed to persuasively show that her male supervisor, who had previously promoted her, was engaged in a "youth movement" aimed at eliminating older women managers or that he replaced her because he was having an intimate relationship with the younger woman who succeeded her. Stenbroten v. Wis. Dairy Herd Improvement Coop, MEOC Case No. 2849 (Comm. Dec. 11/30/84, Ex. Dec. 6/1/84).

A 56-year-old coordinator showed that her age was a determining factor in the elimination of her position by establishing that: (1) her supervisor had expressed displeasure with her age; (2) alternate work was found for younger employees not performing as well as she; (3) she was not considered for other available positions; and (4) another employee over 40 was "laid off" and later replaced by someone younger. State Medical Society v. MEOC (May), supra.

The Hearing Examiner found the Complainant was terminated because she failed to meet four of six entry level requirements for her position, rather than because of her age. Moreover, the Complainant had been disciplined several times without improvement in her performance. The Commission affirmed. On the Complainant's appeal, the City's motion for declaratory judgment was granted when the Court found that it was the Complainant's poor work performance that resulted in dismissal. Gathing v. YMCA of Metropolitan Madison, Inc., & East YMCA of Madison, MEOC Case No. 21198 (Comm. Dec. 1/9/92, Ex. Dec. 7/11/91). Nancy Gathing v. Madison Equal Opportunities Commission, et al., 92 CV 0677 (Dane County Cir. Ct. 3/16/93).

Complainant, a fifty-eight (58) year old female who was terminated, filed a claim of discrimination against Respondent based on age and sex in regards to terms and conditions of employment and termination of employment. The hearing examiner concluded Respondent had discriminated against Complainant because her supervisor was overheard making disparaging comments relating to Complainant's age and because statistics indicated that the Respondent overwhelmingly promoted, hired and transferred individuals who were 35 years and under.

The hearing examiner did not find that Respondent discriminated against Complainant because of her sex despite Complainant's ability to establish a prima facie case. This was because statistics for promotions and terminations relating to sex were not as probative as compared to the age discrimination statistics. May v. State Medical Society, MEOC Case No. 2584 (Comm. Dec. 4/21/82, Ex. Dec. 10/20/81) See Painters Union Local 802 v. Madison Newspapers Inc.

Complainant claimed that she was terminated because of her age. She was sixty-two when Respondent terminated her employment. Complainant established that she was never disciplined for poor performance, that management-level employees, including the company president, had made derogatory remarks about her age, weight and appearance, and that she was replaced with someone much younger. Noting that Complainant only needed to show that age partly motivated her termination, the Hearing Examiner found that Respondent had discriminated against Complainant. Respondent offered one nondiscriminatory explanation-poor job performance-but this explanation was not entirely credible. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

220.9 Miscellaneous

221 Arrest or Conviction Record Discrimination

221.1 Coverage, Exceptions

The Complainant claimed that the Respondent's refusal to issue a policy for auto insurance was based on his previous arrest record. On Respondent's motion to dismiss, the Hearing Examiner found the Commission to be without jurisdiction, and dismissed the complaint. Hieb v. American Standard, MEOC Case No. 3255 (Comm. Dec. 12/3/92, Ex. Dec. 3/11/92).

Where the Respondent moved to dismiss the complaint for lack of jurisdiction alleging the Commission is without jurisdiction to address the allegation of conviction record discrimination because the Commission is preempted by state and federal law, the Examiner ruled that although not preempted by the Wisconsin Fair Employment Act, the Ordinance was preempted by the applicable federal statute that automatically disqualified an individual from employment who had been convicted of a crime involving injury to another person. Respondent provides physical and related care of elderly and/or developmentally disabled persons. Complainant was convicted of second degree sexual assault stemming from an allegedly consensual sexual relationship with a 15-year-old male. Pagel v. Elder Care of Dane County, MEOC Case No. 22442 (Ex. Dec. 10/31/96).

Following a hearing at which the Respondent did not appear, the Hearing Examiner determined that the Respondent wrongfully terminated the Complainant from employment based upon a felony more than three years after conviction. The Hearing Examiner ordered the Respondent to re-hire the Complainant, pay him all wages lost as the result of the unlawful firing, and pay him $15,000.00 for his emotional distress and anxiety resulting from the discriminatory employment action. Baxter v. Courier Personal Services WHII, MEOC Case No. 20082105 (Hearing Ex. Decision 11/3/09).

Respondent sought to have complaint alleging discrimination on the basis of conviction record in failing or refusing to hire or wrongful termination of employment dismissed for a lack of jurisdiction because of preemption of state statutes relating to the licensing of private security guards. (Wis. Stats. Sec. 440.2) Respondent argued that state licensing guidelines (which place no time limits on conviction record) override the Madison Equal Opportunity Ordinance, which stipulates that only conviction records within the last three years and substantially related to job duties may be considered by the employer. In the present matter, the conviction occurred well outside of the three-year period specified in the ordinance. Permits to become a private security person in Wisconsin are issued by the Department of Safety and Professional Services (DSPS), which is to apply the standards of the Wisconsin Fair Employment Act (FEA) (Wis. Stats. Secs. 111.31-111.395) requiring a determination that a conviction is substantially related to the duties of the job. As there is nothing in the record indicating that there has been any actual application of Wis. Stats. Sec. 440.26 to the facts in this matter, and, absent some determination on the part of the Department (DSPS), the Hearing Examiner finds that it is not possible to determine whether the Complainant was lawfully barred from employment by action of state law. Further, as the ordinance recognizes as a limitation convictions that prohibit an individual from obtaining required licenses, it does not appear that the ordinance would conflict with the provisions of Wis. Stats. Sec. 440.26 regardless of the time frame stated in either the FEA or the ordinance with respect to the conviction in question in this complaint. Respondent's motion to dismiss is denied. Barry v. Total Security Mgmt., MEOC Case No. 20122076 (Ex. Dec. 11/27/2012).

221.11 Definition of Arrest Record and Conviction Record

221.12 Underlying Act or Reason, Rather Than Arrest or Conviction

Where the Complainant, a black, African American male was arrested for allegedly passing forged checks was later barred from Respondent's store on two occasions because several of Respondent's employees who believed Complainant passed the bad checks also felt they had been harassed and intimidated by the Complainant, the Hearing Examiner found that although Complainant presented a prima facie case of discrimination, his exclusion from the store was a legitimate nondiscriminatory reason since Respondent's actions were based on the erroneous belief that Complainant had, in fact, passed forged checks and harassed and intimidated several employees of Respondent. Barlow v. Woodman's Food Market, MEOC Case No. 3334 (Ex. Dec. 8/29/96).

221.19 Miscellaneous

The Hearing Examiner found that termination of an employee for absence, even though the employee's absence was due to his arrest, does not constitute discrimination on the basis of arrest record. Complainant was absent from work on the weekend of June 25 and 26, as well as June 27, because he had been arrested after leaving work on June 24. Since weekend production lines at Oscar Mayer are operated by only as many workers as are actually necessary, any unexpected absences tend to result in a disruption of production operations. Both of the Complainant's absences were deemed unexcused and he was terminated pursuant to Oscar Mayer policy. The Commission affirmed the Examiner's Decision without comment. Bordson v. Oscar Mayer Food Corp., MEOC Case No. 20989 (Comm. Dec. 4/4/90, Ex. Dec. 9/29/89).

Complainant claimed that she was terminated from her employment due to her boyfriend's arrest. The Hearing Examiner found that the Commission was without jurisdiction because "arrest record by association" does not fit within the "by association" framework of race and sex cases decided under Title VII, which hold that the race or sex of the complainant is a factor in the discrimination. Additionally, the Common Council specifically adopted "by association" protection in the ordinance's housing section and did not extend it to other provisions. Ezrow v. PDQ, MEOC Case No. 21966 (Ex. Dec. 9/15/94).

Complainant was suspended from work after making threats to beat another employee with a bat. Employer investigated the threat incident and in the process discovered the full nature of a significant conviction record involving violence and sexual assault. Employer terminated Complainant for failing to disclose the full nature of his conviction record at the time of hire. Although the employer's investigation into the issue of whether Complainant had properly disclosed his conviction record was flawed, Complainant was unable to prevail at the pretext stage since nothing in the record suggested that the Complainant's race or conviction record was the true motive for Complainant's suspension and termination. Johnson v. Webcrafters, MEOC Case No. 20042097 (Ex. Dec. 3/30/06).

The Complainant alleged that the Respondent discriminated against him on the bases of arrest and conviction record when it failed to hire him as a dish washer and as a laundry worker. The Respondent denied discriminating against the Complainant and asserted that it had hired individuals with arrest and conviction records prior and subsequent to the Complainant's applications for employment. Additionally, there was evidence that an individual with an apparent conviction record was hired for an available dish washer position. Upon review of the evidence, the Hearing Examiner concluded that the Complainant had failed to demonstrate a causal connection between his arrest and conviction records and the Respondent's failure to hire him. The Hearing Examiner ordered that the case be dismissed. Wilson v. Madison Concourse Hotel, MEOC Case No. 20072249 (Ex. Dec. 05/18/12)

The Respondent did not discriminate against the Complainant on the basis of his conviction record because he did not apply for employment with the Respondent. It is not possible for the Hearing Examiner to conclude that the Complainant would be a qualified applicant even if he had applied for the position because the Complainant lacked some of the necessary certifications for the position in which he was interested. Given the record as a whole, the Hearing Examiner can find no basis for the Complainant's claim that the Respondent failed or refused to hire him because of his conviction record. Equally, there is no indication in the record that the Respondent took any steps to prevent or to discourage the Complainant from pursuing an application with the Respondent. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

221.2 The "Substantial Relationship" Standard

221.21 Generally

Complainant charged that Respondent discriminated against him on the basis of his conviction record when it did not hire him for a receptionist position. Respondent moved to dismiss the complaint on the grounds that a conviction for 2nd degree homicide was as a matter of law substantially related to the Complainant's prospective employment as a receptionist. The hearing examiner concluded that a hearing was necessary and could not find that the ordinance would allow for finding any particular conviction to automatically preclude employment in a specific position. Rogers v. New Horizons, MEOC Case No. 19982232 (Ex. Dec. 8/10/99).

221.22 Circumstances Not Substantially Related

221.23 Circumstances Substantially Related

221.3 Other Affirmative Defenses

221.9 Miscellaneous

The Hearing Examiner concluded that despite the Respondent's questionable record-keeping practices, the Complainant failed to demonstrate that he had been fired as a result of his arrest record. Mitchell v. Marge's Amoco, MEOC Case No. 21935 (Ex. Dec. 12/15/95).

Following a hearing at which the Respondent did not appear, the Hearing Examiner determined that the Respondent wrongfully terminated the Complainant from employment based upon a felony more than three years after conviction. The Hearing Examiner ordered the Respondent to re-hire the Complainant, pay him all wages lost as the result of the unlawful firing, and pay him $15,000.00 for his emotional distress and anxiety resulting from the discriminatory employment action. Baxter v. Courier Personal Services WHII, MEOC Case No. 20082105 (Hearing Ex. Decision 11/3/09).

222 Disability Discrimination

Complainant, a 42-year-old male, claimed that he was discriminated against in regard to his age when the Respondent allegedly charged a higher price for a ticket to a play to those under 60. The ticket included public bus fare to and from the play plus refreshments. The Examiner found that no discrimination occurred because of an implied exemption for the Madison Senior Center based on city support for the Center both as a matter of policies expressed in the ordinances and in financial appropriations for its operation. The Commission rejected the Examiner's reasoning, but found no discrimination since the Senior Center charged the same amount for its services regardless of age, and merely passed along a federal subsidy for bus fare for persons 60 and older. Schultz v. Madison Senior Center, MEOC Case No. 3188 (Comm. Dec. 5/24/90, Ex. Dec. 9/15/89).

Complainant alleged that the Respondents discriminated against him on the basis of his disability (depression and anxiety disorder) when it failed to accommodate his disability and terminated his employment. The Respondent asserted that the Complainant violated the Respondent's attendance policy, that he was moody and that he had quit. The Respondent failed to respond to the Complainant's Request for Admissions, and as a result, the Respondent is deemed to have admitted the allegations contained in the admissions. Accordingly, the Hearing Examiner held that the Respondent knew of the Complainant's disability and failed to extend clemency or forbearance for any possible violation by the Complainant of the Respondent's attendance policy. The Hearing Examiner found that the Complainant's disability was, at least in part, a motivating factor in the Respondent's termination of the Complainant. The Hearing Examiner ordered the Respondent to pay the Complainant's lost wages, damages for emotional distress, and attorney's fees. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. 3/12/10).

222.1 Coverage

222.11 Definition of Disability, Generally

A disabled person is someone who: (1) has a physical or mental impairment which makes achievement unusually difficult or limits the capacity to work; or (2) has a record of such impairment; or (3) is perceived as having such impairment. Stanton v. Dairy Equipment, MEOC Case No. 2540 (Ex. Dec. 6/9/82).

222.12 Perceived Disability

A lay person's testimony by itself does not support a conclusion of law that an individual was disabled; however, testimony other than expert medical testimony did support a conclusion that the person was perceived or regarded by the employer as disabled. Siebert v. Backey & Assoc., MEOC Case No. 2694 (Ex. Dec. 7/8/81).

An employee who was perceived by his employer to be disabled was nevertheless not discriminated against in regard to rehire where the evidence showed that his previous performance as a welder had been unsatisfactory and no jobs were available as a painter or janitor at the time he tried to return to work. Siebert v. Backey and Assoc., supra.

An employer who had otherwise lawfully discharged an employee, believing that episodes of fainting and dizziness on the job were not disability related, was not required to hold the employee's job open for two years until he was diagnosed as hypoglycemic. Rogers v. Stop-n-Go, MEOC Case No. 2437 (Ex. Dec. 7/16/81).

The Hearing Examiner found that the Complainant's failure to comply with the terms of a consensual medical leave of absence was the reason for his termination, rather than the Respondent's perception of the Complainant's serious drug abuse problem. In general, the Hearing Examiner determined the Complainant to be a less than credible witness on his own behalf. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

The Hearing Examiner found that the Complainant failed to demonstrate with competent medical evidence that she had an actual handicap/disability that required accommodation. The testimony supported a finding that the Respondent perceived the Complainant to be handicapped/disabled because of her conduct at the workplace and the manager's belief that she had a mental impairment. Despite this perception the Respondent terminated the Complainant for a specific instance of misconduct rather than as a result of any belief in the Complainant's handicap/disability. Joseph v. The Swiss Colony, MEOC Case No. 20984 (Ex. Dec.6/28/89).

The Complainant alleged that the Respondent unlawfully discriminated against her because of her disability-cocaine addiction-in failing to reasonably accommodate her disability and in discharging her from her employment. Both the Hearing Examiner and the Commission found that no discrimination occurred. The Circuit Court upheld the Commission's decision that proof of addiction must be made by an expert medical witness. Since there was no expert testimony proving the Complainant's addiction, the case was dismissed. Also, the Circuit Court upheld the Examiner's determination that there is no requirement for an employer to accommodate a perceived disability where no disability exists. Busto v. Wisconsin Power and Light, MEOC Case No. 20945 (Comm. Dec. 3/14/90, Ex. Dec. 9/25/89); State ex rel. Elizabeth Busto v. MEOC and WP&L, 90 CV 1594 (Dane County Cir. Ct. 1/9/91).

The Respondent discriminated against the Complainant on the basis of what it perceived to be a disability, namely a broken wrist, by changing the Complainant's position from Program Administrator to Residential Coordinator, though it presented no evidence that Complainant was unable to perform her duties. Respondent's subsequent termination of Complainant did not constitute retaliation because the Respondent had no knowledge of the complaint to MEOC when it took steps to terminate her for misconduct. The Commission dismissed the complaint, finding that the Complainant's broken wrist constituted a temporary condition and was therefore not a disability. Lewis v. Creative Community Living Services, Inc., MEOC Case No. 21063 (Comm. Dec. 4/14/93, Ex. Dec. 9/28/92).

The mention of a past injury does not create an awareness of a complainant's disability. A complainant must demonstrate that a respondent knew of the complainant's disability or regarded the complainant as having a disability. A respondent who regarded a complainant as having a disability effectively terminated her by not re-evaluating her job status after she drew unemployment benefits. Rosin v. Rite-Way Leasing Company, MEOC Case No. 19982206 (Comm. Dec. 4/22/02, Ex. Dec. 10/3/01).

The Complainant, an African American, walks with a pronounced limp.  He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises.  After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability.  The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

222.13 Permanent Versus Temporary Conditions

The Respondent discriminated against the Complainant on the basis of what it perceived to be a disability, namely a broken wrist, by changing the Complainant's position from Program Administrator to Residential Coordinator, though it presented no evidence that Complainant was unable to perform her duties. Respondent's subsequent termination of Complainant did not constitute retaliation because the Respondent had no knowledge of the complaint to MEOC when it took steps to terminate her for misconduct. The Commission dismissed the complaint, finding that the Complainant's broken wrist constituted a temporary condition and was therefore not a disability. Lewis v. Creative Community Living Services, Inc., MEOC Case No. 21063 (Comm. Dec. 4/14/93, Ex. Dec. 9/28/92).

222.14 Conditions Found to Be Disabilities

Back Injury Stanton v. Dairy Equipment, supra.

Back Injury (history of) Siebert v. Backey & Assoc., supra.

Eye Sensitivity Laitsch v. Llama Imports, Ltd., MEOC Case No. 2656 (Com. Dec. 12/10/81, Ex. Dec. 7/16/81).

Heart Attack McFayden v. MEOC, infra.

Height and Weight Pham v. Emer. Crises Center, infra.

Hypertension Rogers v. Stop-n-Go, infra.

Migraine Headaches Maxson v. MEOC (Means Serv.), 84 CV 4150 (Dane County Cir. Ct. 7/18/85). [NO LINK AVAILABLE]

Thumb and Wrist Injury Steinbring v. Oakwood

(history of) Lutheran Home, MEOC Case No. 2763 (Comm. Dec. 3/10/83, Ex. Dec. 2/11/82).

Note: For a more extensive listing of disabling conditions under state law, see Wis. Fair Employment & Housing Decision Digest V (Wisconsin Equal Rights Division).

222.15 Conditions Found Not to Be Disabilities

222.16 Preemption by Worker's Compensation Act

(See section 213.3)

222.19 Miscellaneous

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

The Complainant is disabled and has two service dogs to assist him. The Complainant and his dogs visited the Respondent's facility regularly for medical services. One of the Respondent's employees was attacked and severely injured by a wolf hybrid dog prior to her employment with the Respondent, and consequently suffers emotional stress from this incident. On several occasions, the Complainant's dogs and the Respondent's employee came into brief contact; the employee experienced a post traumatic flashback. Respondent then required the Complainant and his dogs to use a specific entrance to ensure they would not encounter the employee. The Complainant complained that this access arrangement discriminated against him in a public place of accommodation on the basis of his disability. The Hearing Examiner determined that the Respondent did not discriminate against the Complainant in violation of the ordinance and held that the Respondent's limited access to its building was a reasonable accommodation and did not limit the Complainant's full and equal enjoyment of the Respondent's goods, service and facilities. Nichols v. Mental Health Center of Dane County, Inc., MEOC Case No. 20053154 (Ex. Dec. 8/6/09, aff'd Comm. Dec. 4/14/10).

222.2 Particular Disabilities

222.21 Acquired Immune Deficiency Syndrome (AIDS)

222.22 Alcoholism, Drug Addition

The Hearing Examiner found that the Complainant's failure to comply with the terms of a consensual medical leave of absence was the reason for his termination, rather than the Respondent's perception of the Complainant's serious drug abuse problem. In general, the Hearing Examiner determined the Complainant to be a less than credible witness on his own behalf. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

The Complainant alleged that the Respondent unlawfully discriminated against her because of her disability-cocaine addiction-in failing to reasonably accommodate her disability and in discharging her from her employment. Both the Hearing Examiner and the Commission found that no discrimination occurred. The Circuit Court upheld the Commission's decision that proof of addiction must be made by an expert medical witness. Since there was no expert testimony proving the Complainant's addiction, the case was dismissed. Also, the Circuit Court upheld the Examiner's determination that there is no requirement for an employer to accommodate a perceived disability where no disability exists. Busto v. Wisconsin Power and Light, MEOC Case No. 20945 (Comm. Dec. 3/14/90, Ex. Dec. 9/25/89); State ex rel. Elizabeth Busto v. MEOC and WP&L, 90 CV 1594 (Dane County Cir. Ct. 1/9/91).

222.23 Back Problems, Lifting Restrictions

The fact that an individual returned from a short term medical leave of absence and stated that he was unable to lift heavy loads did not establish that he was disabled or perceived to be disabled. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

222.24 Epilepsy, Seizure Disorders

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

222.25 Visual, Hearing Impairments

222.3 Complainant's Burden of Proof

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

222.31 Generally

An adult who was four feet tall and weighed 65 pounds was not discriminated against on the basis of disability nor physical appearance where the employer established that her low interview scores were related to her lack of practical experience; although her education and ability to handle stress were somewhat underrated by the panel, she failed to show that the ratings were a pretext for discrimination. Pham v. Respite Emer. Crisis Center, MEOC Case No. 2676 (Ex. Dec. 8/26/81).

A shipping and receiving clerk who was discharged within a few months of having returned to work after a massive heart attack was not discriminated against on the basis of disability where he could perform the lifting or carrying requirements which were an essential part of his job. McFayden v. MEOC (University Bookstore), No. 81-CV-3744 (Dane County Cir. Ct., 11/15/82).

The Hearing Examiner found that the Complainant's failure to comply with the terms of a consensual medical leave of absence was the reason for his termination, rather than the Respondent's perception of the Complainant's serious drug abuse problem. In general, the Hearing Examiner determined the Complainant to be a less than credible witness on his own behalf. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

The Complainant failed to prevail on his discrimination claim based on the alleged disability, fractured hip and irritable colon, in regard to termination of employment. Due to lack of documents, records or testimony regarding the alleged disability, the Hearing Examiner was unable to conclude that the Complainant had a physical impairment within the meaning of the ordinance. Also, the Hearing Examiner found that it was the Complainant's unsatisfactory work performance that warranted his discharge. Studinski v. Madison Property Management, Inc., MEOC Case No. 21298 (Ex. Dec. 7/9/92).

In discouraging Complainant from seeking advancement within the company, and in failing to provide her with any opportunity to explain whether her congenital hip condition would affect her performance of duties associated with the position she desired, Respondent discriminated against Complainant based upon her disability. The position required interaction with local physicians and marketing experience. The successful candidate was allegedly chosen because she had professional marketing experience, but Complainant demonstrated that Respondent, through its director, repeatedly discouraged her from seeking advancement, steering her towards less visible positions. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

The Complainant, an African American, walks with a pronounced limp. He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises. After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability. The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

222.32 Employer's Knowledge of Disability

The fact that an individual returned from a short term medical leave of absence and stated that he was unable to lift heavy loads did not establish that he was handicapped or perceived to be handicapped. Wopat v. St. Vincent de Paul Society, MEOC Case No. 2551 (Ex. Dec. 10/7/80).

Where a store manager's doctor had previously diagnosed him as tired and overworked, it did not constitute disability discrimination to discharge him after he suffered a second episode of fainting and dizziness which incapacitated him and required him to be sent home; while the employer knew that he suffered from high blood pressure, high cholesterol and a weight problem, it had no reason to believe that any of these conditions had caused the fainting and dizziness; . . . and a doctor's diagnosis made two years after an employee had been discharged, although admissible at hearing as a hearsay exception, was not as critical to the findings as the diagnosis of the physician who had been seeing the employee close to the time of his discharge. Rogers v. Stop-n-Go, MEOC Case No. 2437 (Ex. Dec. 7/16/81).

The fact that an employee has difficulty completing job duties does not place an employer on notice that an employee has a disability or require the employer to make inquiries into the reasons for the employee's difficulties. If an employer does not know of an employee's disability, then any action it took could not have resulted from the employee's membership in a protected class. An employee who did not inform his employers of his disability was terminated because the employer believed he was falsifying data on reports. Vogt v. Best Buy Stores, L.P., MEOC Case No. 22749 (Ex. Dec. 3/26/01).

The perception of a disability by a supervisor imputes perception of a disability to a Respondent employer. A Complainant was discriminated against when she was terminated due to a perceived disability. Teich v. Center for Prevention and Intervention, MEOC Case No. 20002153 (Ex. Dec. 6/12/02, On Fees 8/5/02).

222.4 Employer's Burden of Proof; Affirmative Defenses

222.41 Generally

Where a job applicant had been authorized by her own physician and the employer's doctor to return to work for at least a three-month probationary period, the employer's refusal to rehire her as a nursing assistant because of past wrist and thumb injuries was disability discrimination; . . . and the employer's claim that she was not rehired because of her past absenteeism was not credible where she had never been warned about it and had been offered rehire by the employer in positions other than nursing assistant. Steinbring v. Oakwood Lutheran Home, supra.

In the typical disability accommodation case, the accommodation at issue is one which would enable an individual to perform his or her essential job functions; . . . and an employer is not required to pay another employee to actually perform such essential functions on a regular basis for the handicapped individual, or to transfer that individual to a new position. McFayden v. MEOC (University Bookstore), supra.

As a general proposition, municipal ordinances may contain bases of discrimination more inclusive than the bases of discrimination listed in Section 66.432, Wis. Stats. and 101.22, Wis. Stats. Atty. Gen. Opinion, OAG-46-85 (12/17/85).

The MEOC found that Respondent discriminated against Complainant when it terminated Complainant for violating the company dress code, which prohibited eyebrow rings. Respondent appealed the decision, and the Dane County Circuit Court reversed the discrimination finding. Complainant and the MEOC appealed. The Court of Appeals affirmed, holding that enforcement of the dress code served legitimate nondiscriminatory business purposes. Regarding the issue of proving and/or disproving "reasonable business purposes," the Court of Appeals held that because the MEOC had historically imposed upon complainants the burden of disproving articulated "reasonable business purposes," it could not impose upon this Respondent the burden of proving "reasonable business purposes" as affirmative defenses. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

222.42 Inability to Perform Job-Related Responsibilities

222.43 Requirements of Case-By-Case Evaluation

222.5 Employer's Duty to Accommodate

The hearing examiner found that Complainant, a receiving clerk at Respondent's warehouse, was not discriminated against by Respondent when Respondent gave Complainant a reasonable accommodation after Complainant suffered a heart attack and was later retired as permanently disabled. The accommodation allowed Complainant to have a thirty (30) pound lifting and carrying restriction in the warehouse, but Respondent was unsuccessful in ascertaining how long Complainant's accommodation would be needed after serval attempts to receive the information from Complainant. The hearing examiner ruled that the accommodation was an undue hardship and the discharge was non-discriminatory in nature. McFadyen v. University Bookstore, MEOC Case No. 2539 (Comm. Dec. 6/29/81, Ex. Dec. 2/3/81).

An employer does not owe a duty of reasonable accommodation to people it does not employ. A complainant who applied for a job was not entitled to engaging in an interactive process for determining accommodations when no decision had been made to hire her. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

A respondent employer does not incur an automatic duty to initiate reasonable accommodations because an employee has a mental disability. The severity and nature of the disability must be taken into account when determining an employer's duty. Mutchler v. The Disney Store, MEOC Case No. 19982193 (Ex. Dec. 9/25/02).

Complainant alleged that the Respondents discriminated against him on the basis of his disability (depression and anxiety disorder) when it failed to accommodate his disability and terminated his employment. The Respondent asserted that the Complainant violated the Respondent's attendance policy, that he was moody and that he had quit. The Respondent failed to respond to the Complainant's Request for Admissions, and as a result, the Respondent is deemed to have admitted the allegations contained in the admissions. Accordingly, the Hearing Examiner held that the Respondent knew of the Complainant's disability and failed to extend clemency or forbearance for any possible violation by the Complainant of the Respondent's attendance policy. The Hearing Examiner found that the Complainant's disability was, at least in part, a motivating factor in the Respondent's termination of the Complainant. The Hearing Examiner ordered the Respondent to pay the Complainant's lost wages, damages for emotional distress, and attorney's fees. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. 3/12/10).

222.6 Proof of Medical Facts

An employee's medical history of treatment for a back injury (which the employer was aware of) was protected by the ordinance's prohibition against disability discrimination. Stanton v. Dairy Equipment, supra.

222.9 Miscellaneous

A handicapped employee's discharge for failing to call in (although he was physically able to) on three consecutive days when he was absent and later failing to provide adequate reasons for this conduct was not discrimination where the employer made no exceptions to this rule for non-disabled employees. Stanton v. Dairy Equipment, supra.

Respondent discriminated against the Complainant on the basis of a diagnosed physical disability, severe urinary incontinence. The Complainant requested and was ultimately granted a leave of absence in order to attempt to have this condition surgically corrected. However, before having the surgery, Complainant received a letter from her supervisors outlining their dissatisfactions with Complainant's job performance. Respondent had made no previous complaints regarding her performance. In a written reply, Complainant denied these allegations. She was subsequently terminated. Nelson v. Weight Loss Clinic of America, Inc. et al., MEOC Case No. 20684 (Ex. Dec. 9/29/89).

223 Marital Status Discrimination

223.1 Definition; Spousal Identity

A job applicant's marital status was not a factor in her failure to be hired as an Outreach Worker where the (nonprofit) employer showed that the person selected possessed non-discriminatory qualities which were in line with the stated purpose of the organization's funding; . . . and basing a hiring decision on the needs of the competing applicant with two children was not discriminatory as there was no evidence of either applicant's marital status and because "parental status" was not a protected class. Sanchez v. Neighborhood Youth Corps., MEOC Case No. 2192A (Ex. Dec. 11/23/76).

An employer's unwritten work rule prohibiting (any) employees from associating with married (co-) employees of the opposite sex outside of work-related matters was not discriminatory on the basis of marital status. Fed. Rural. Elec. Ins. v. MEOC, et al., 131 Wis. 2d. 189 (1986).

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of his marital status when it denied the Complainant employment because of his wife's employment. The Hearing Examiner held that the Respondent's policy of not hiring relatives or close friends of persons who were employed by Respondent's competitors did not constitute discrimination on the basis of marital status. Gustafson v. WPS, MEOC Case No. 20539 (Ex. Dec. 5/19/87).

223.2 Exceptions; Insurance Coverage

223.9 Miscellaneous

The regulation and control of a savings and loan's lending practices have been preempted by the State of Wisconsin in Chapter 215, Wis. Stats., by establishing a comprehensive and all-encompassing scheme regarding savings and loan association practices . . . and the application of the City of Madison's local credit anti-discrimination ordinance (prohibiting discrimination on the basis of marital status in regard to refusal to grant a loan) to the Respondent's credit practices was contrary to the spirit of the state's structure of all aspects of credit and lending by savings and loan associations and was without authority and in conflict with the state comprehensive plan. Anchor Savings & Loan v. MEOC (Schenk), 120 Wis. 2d 391, 355 N.W.2d 234 (1984).

224 National Origin and Ancestry Discrimination

224.1 Coverage; Discrimination Between National Origin and Ancestry

224.2 Harassment Because of National Origin

224.3 Cases

The Hearing Examiner dismissed the complaint, finding that although the Complainant proved that he applied for employment and was not hired, he was unable to prove that Respondent's loss of his application was related to his national origin, ancestry or disability, or that the Respondent did not actually lose his application. Colon v. Famous Footwear, MEOC Case No. 20747 (Ex. Dec. 9/7/88).

The Examiner found the Respondent discriminated against the Complainant, a black male from Nigeria, on the basis of his race and national origin in failing to grant him a promotion. Respondent's failure to investigate and update Complainant's work record though it updated the file of the successful applicant-- a white female less senior to Complainant--constituted discrimination. The Respondent cited the Complainant's Nigerian accent as one of the deciding factors in not promoting him.

The Examiner found this constituted national origin discrimination, since the accent would not have interfered with the Complainant's work. The Complainant was awarded back pay plus $15,827.59 in costs and attorney's fees. In a supplemental decision, Complainant was also awarded front pay.

The Commission, in overruling the Examiner's decision, found that the Respondent demonstrated legitimate, nondiscriminatory reasons for refusing to promote Complainant. Although it was determined that the person making the employment decision had little first hand experience of Complainant's working abilities at the time of application, this only demonstrated poor business sense on the part of MUHL and did not constitute discrimination. Reviewing testimony, the Commission also determined that the Complainant's accent did create a communication difficulty with customers as well as co-workers and that clear oral communication was a necessary job requirement. Oviawe v. Madison United Hospital Laundry. Ltd., MEOC Case No. 20723 (Comm. Dec. 8/3/90, Ex. Dec. 9/29/89).

After hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the bases of her race, color and ancestry when it failed to hire her for a teaching position. The Hearing Examiner dismissed a claim of discrimination based upon the Complainant's sex and a claim that the Respondent had retaliated against the Complainant for her filing of an internal complaint of discrimination. The Hearing Examiner awarded the Complainant $25,860 in back pay and $25,000 compensatory damages for emotional distress, and costs and reasonable attorney's fees. The Commission reversed the Hearing Examiner and found that the Complainant had not proven her claim of discrimination and dismissed the complaint. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The hearing examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the hearing examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the hearing examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

224.9 Miscellaneous

The Respondent discriminated against the Complainant, an Asian-American woman, on the basis of her race by failing or refusing to hire her. The Complainant applied for a position as bus person but was not hired whereas persons of other races were hired during the same time frame. [Complainant's claim of discrimination on the basis of national origin failed because she presented no evidence that the Respondent knew that she was a Korean American] The Respondent was ordered to cease and desist from discriminating against the Complainant and other prospective employees. The Complainant was awarded $2,939.00 in back pay, $750.00 in emotional damages, attorney's fees and costs. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

225 Physical Appearance Discrimination

225.1 Coverage, Generally

A four-foot tall, 65-pound female who applied for a position at an emergency crisis center was not discriminated against on the basis of her physical appearance where she had expressed concerns about her ability to deal with certain clients at the center. Pham v. Respite Emer. Crisis Center, MEOC Case No. 2676 (Ex. Dec. 8/26/81).

Employee requirements relating to physical appearance are permitted when such requirements are uniformly applied . . . to employees in a business establishment for a reasonable business purpose [see Sec. 3.23(2)(k), Madison General Ordinances] . . . and a "reasonable business purpose" in the context of the physical appearance anti-discrimination prohibitions is broader than the business purpose exceptions allowed under the statutes prohibiting discrimination based on such factors as age or disability. State ex rel. McDonald's Restaurant (Karaffa) v. MEOC, No. 83-1571 (Ct. App. 8/28/84).

The Complainant alleged discrimination based on sexual orientation (perceived homosexuality) and his physical appearance (wearing an earring and a small braid on the back of his neck), when he was told he was not needed at the temporary agency where he had been placed by a referral agency. Respondent asserts instead that the Complainant was inappropriately dressed for business purposes. The Hearing Examiner determined that the Respondent had discriminated against the Complainant based on physical appearance. The Respondent was ordered to cease and desist from further acts of discrimination. The Complainant was entitled to wages lost in the sum of $4.95. The charges based on sexual orientation were dismissed. Regan v. Lyons Mortgage Co. MEOC Case No. 20846 (Ex. Dec. 1/31/89).

The Hearing Examiner determined that the Respondent had not discriminated against the Complainant, a male driver who wore makeup and jewelry, on the bases of sex, sexual orientation and physical appearance, when it disciplined him for an apparent violation of an agreement settling an earlier discrimination action. The Examiner did conclude that the Respondent had retaliated against the Complainant in violation of the ordinance for issuing a disciplinary letter. The Examiner ordered the Respondent to withdraw the disciplinary letter and to stop retaliating against the Complainant, but awarded no monetary damages nor attorney's fees.

The Commission found that in addition to retaliation, the Complainant had demonstrated that he had been discriminated against on the basis of his physical appearance. The Commission also reversed the Hearing Examiner's determination that attorney's fees for the Complainant's earlier consultations with attorneys was not awardable, and remanded the case to the Hearing Examiner for the determination of appropriate attorney's fees. The Commission concurred with the Hearing Examiner's conclusion that emotional damages were not appropriate in this instance, but specifically declined to adopt the Examiner's rationale. Maxwell v. Union Cab Cooperative, MEOC Case No. 21028 (Comm. Dec. 7/10/92, Ex. Dec. 12/31/91); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, No. 95-0190 (Ct. App. 9/20/95); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, No. 93-0657 (Ct. App. 3/24/94); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison, 92 CV 3260 (Dane County Cir. Ct. 12/1/94).

225.2 Hire

225.3 Termination-Physical Appearance

An outside porter discharged for violating an employer's requirement to be clean shaven failed to rebut the employer's articulated purpose for the rule that a beard would result in an increased risk of food poisoning. State ex. rel. McDonald's Restaurant v. MEOC (Karaffa), supra.

An employee who was disciplined, suspended and effectively discharged in part for having worn skirts with hemlines which the employer considered too long was found not to have been discriminated against on the basis of physical appearance where she failed to carry her burden of showing that the articulated safety reason for the adoption of the rule was a pretext for physical appearance discrimination. Quinn-Gruber v. Wis. Physician's Serv., MEOC Case No. 2877 (Comm. Dec, 1/27/83, Ex. Dec. 9/27/82).

For the purposes of the Ordinance, prescribing and proscribing employee attire both have the same meaning. An employee was not discriminated against on the basis of physical appearance when she was terminated for wearing facial jewelry in violation of the Respondent's policy. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

The MEOC found that Respondent discriminated against Complainant when it terminated Complainant for violating the company dress code, which prohibited eyebrow rings. Respondent appealed the decision, and the Dane County Circuit Court reversed the discrimination finding. Complainant and the MEOC appealed. The Court of Appeals affirmed, holding that enforcement of the dress code served reasonable nondiscriminatory business purposes.

The MEOC maintained that appealing to conservative customer preferences was not reasonable, but the appellate court concluded that attracting and maintaining customers plainly depended upon customer preferences and customer satisfaction. In response to another argument advanced by the MEOC-that Respondent could not describe with sufficient precision the conservative image it maintained-the Court of Appeals held that whether Respondent defined "conservative" with precision was unrelated to whether Respondent could reasonably have chosen to promote its conservative image. Finally, the Court held that one could not rationally distinguish between retail and office settings when determining whether dress codes serve some "reasonable business purpose." The Court stated that requiring cleanliness, uniforms, or prescribed attire is acceptable when intended to further some reasonable goal that benefits the business. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

225.4 Terms and Conditions

225.9 Miscellaneous

226 Race Discrimination (see also 230.1)

226.1 Coverage; Generally

Respondent discriminated against the Complainant on the basis of race by association. Complainant, a white woman, maintained social relations with Black and Hispanic men. The Hearing Examiner found Respondent failed to promote the Complainant because of such associations when Respondent failed to prove that the successful candidate for the position was at least as qualified as the Complainant. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

The Hearing Examiner found that the Complainant had failed to meet her burden of proof on either claim of discrimination and therefore dismissed the complaint. The Complainant contended that the Respondent had discriminated against her on the basis of her age (she was approximately 15 years older than most of her coworkers) and on the basis of race by association (she had befriended one of the few African-American assembly workers). Schulz v. Ultratec, Inc., MEOC Case No. 21584 (Ex. Dec. 9/2/94).

226.2 Hire

A prima facie case may also be established by showing that a policy or practice of the employer (e.g., an applicant test) has the effect of excluding a disproportionately high number of persons of the complainant's race. Jones v. Madison Serv. Corp., MEOC Case No. 2574 (Ex. Dec. 11/24/81).

While some of an employer's reasons for selecting a white over a black for a permanent laborer position were not believable, there were legitimate factors which justified hiring the white instead of the otherwise equally qualified black. Donahue v. MG&E, MEOC Case No. 2560 (Comm. Dec. 9/10/81, Ex. Dec. 2/9/81).

Where two employees were otherwise equally qualified for a Claims Processor job, it was not discriminatory to hire the white applicant where the black applicant had a negative job reference from a previous employer; . . . and it was also not discriminatory to reject the same black applicant for a subsequent position based on the negative reference and the applicant's failure to list on her application the employer responsible for the reference. Thompson v. Wis. Life, MEOC Case No. 2479 (Ex. Dec. 10/13/81).

Where a complainant did not show that he met the minimum qualifications for the job he applied for and did not otherwise raise an inference of race discrimination, his complaint was dismissed for failure to establish a prima facie case. Fields v. Roadway Express, MEOC Case No. 2716 (Comm. Dec. 7/26/82, Ex. Dec. 3/3/82).

A black initially selected for a staff position as a neighborhood coordinator and who was replaced by a white prior to the actual starting date of the job was not discriminated against on the basis of his race where he had performed poorly in the interim as a volunteer on related work. State ex rel. Adams v. MEOC, (Northport Packers), No. 82-CV-1637 (Dane County Cir. Ct., 6/9/83).

The Hearing Examiner dismissed Complainant's claim that her application was not considered because of her race, finding that the Respondent had neither seen nor spoken to the Complainant and therefore, at the time of the decision not to hire, had no knowledge of the Complainant's race. Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 4/5/89, on liability 7/31/89).

The Hearing Examiner found that Respondent did not discriminate against Complainant when it failed to hire him. Complainant's rude conduct, not his race, resulted in the decision not to hire. Rose v. Kippcast, MEOC Case No. 20851 (Ex. Dec. 9/29/89).

The Complainant, a Black male, failed to prevail on his claim that he was not hired for the position of housekeeping because of his race when he failed to produce sufficient support for the contention that he had 15 years of related work experience. Toomer v. Meriter Hospital, MEOC Case No. 21582 (Ex. Dec. 11/10/92).

After hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the bases of her race, color and ancestry when it failed to hire her for a teaching position. The Hearing Examiner dismissed a claim of discrimination based upon the Complainant's sex and a claim that the Respondent had retaliated against the Complainant for her filing of an internal complaint of discrimination. The Hearing Examiner awarded the Complainant $25,860 in back pay and $25,000 compensatory damages for emotional distress, and costs and reasonable attorney's fees. The Commission reversed the Hearing Examiner and found that the Complainant had not proven her claim of discrimination and dismissed the complaint. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

The Respondent discriminated against the Complainant, an Asian-American woman, on the basis of her race by failing or refusing to hire her. The Complainant applied for a position as bus person but was not hired whereas persons of other races were hired during the same time frame. [Complainant's claim of discrimination on the basis of national origin failed because she presented no evidence that the Respondent knew that she was a Korean American] The Respondent was ordered to cease and desist from discriminating against the Complainant and other prospective employees. The Complainant was awarded $2,939.00 in back pay, $750.00 in emotional damages, attorney's fees and costs. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

The Complainant, an African American male, failed to demonstrate that the Respondent did not hire him because of his race. The Complainant used "testing" evidence consisting of an inquiry made by a white friend but the Hearing Examiner found that the "test" conditions had not been controlled sufficiently to make the test reliable, i.e., there was no information indicating that the Complainant and his friend had spoken to the same people, asked the same questions and followed up in the same manner. Reid v. PDQ, MEOC Case No. 21680 (Ex. Dec. 7/1/94).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).

The Respondent did not discriminate against the Complainant when it did not offer the Complainant employment. Hiring others who were not similarly situated and who possessed superior credentials does not constitute discrimination. Rolack v. Speedway Self Service, MEOC Case No. 22354 (2nd Ex. Dec. 2/11/00).

When poor recordkeeping and mismanagement are the likeliest reasons why someone is not hired, there will be no finding of discrimination. The Complainant, an African-American male, did not demonstrate the Respondent did not hire him on the basis of his race. Rolack v. Pizza Hut, MEOC Case No. 22355 (2nd Ex. Dec. 2/11/00).

The Respondent's stated reason for not continuing the application process, that the Complainant failed to produce required professional documentation, is a legitimate, nondiscriminatory explanation for not continuing the application process. The Complainant fails to point to evidence or facts that are sufficient to rebut the Respondent's nondiscriminatory explanation for its decision to terminate the Complainant's application. The Complainant admittedly had not submitted much of the material required by the Respondent as part of the application process. There is no assertion that the material required by the Respondent was discriminatory or that the requirement to provide the information was either discriminatory or was discriminatorily applied. Complainant failed to demonstrate by a preponderance of the evidence a prima facie case that he was discriminated against in employment based on race. Had the Complainant initially made a prima facie case of discrimination, this failure to carry his burden of proof at this stage would result in a finding of no discrimination as well. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

226.3 Conditions of Employment, Harassment Because of Race

An employer was liable for isolated racial slurs made by a supervisory employee. Vance v. Eastex Packaging, MEOC Case No. 20107 (Ex. Dec. 5/21/85).

Where racial harassment by a non-supervisory co-employee was alleged, to establish the employer's liability the complainant had to show:

(a) the racial harassment occurred;

(b) the employer knew or should have known about the racial harassment;

(c) the employer failed to take reasonable steps to redress or eliminate the racial harassment. Guyton v. Rolfsmeyer, MEOC Case No. 20424 (Comm. Dec. 7/18/86, Ex. Dec. 4/28/86).

. . . and where the employer took reasonable steps to redress or eliminate the racial harassment based on what the employer knew or should have known, the complainant failed to establish the employer's liability for racial harassment. Guyton v. Rolfsmeyer, supra.

An employee was not insulated from the battles of the work place, no matter how unfair, where he could not show that his race was a factor in his treatment in regard to: (1) training; (2) a compensation and salary differential; (3) loss of supervisory authority; or (4) treatment he received as the employer's affirmative action officer. Morgan v. Community Action Comm., MEOC Case No. 2642 (Ex. Dec. 2/12/82).

Where an employer had taken reasonable steps to redress or eliminate racial harassment based on what the employer knew or should have known, it was not race discrimination to have discharged a black employee who engaged in a physical altercation with the non-supervisory, white co-employee he had accused of perpetrating the racial harassment. The black employee initiated the physical altercation that ensued as a result of a verbal argument with the white employee, the white employee was also discharged and the black employee failed to show that his discharge was a result of the employer's failure to have (previously) adequately disciplined the white employee for the claimed racial harassment. Guyton v. Rolfsmeyer, supra.

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Reporting harassment (in this instance by nonsupervisory coworkers) or demonstrating that an employer reasonably knew or should have known is an essential element in a claim of racial harassment. One of Complainant's nonsupervisory coworkers harassed him because of his race and/or color, but Complainant has not met his burden of proof to establish that it is more likely than not that he reported nonsupervisory co-worker harassment to management. Failing to demonstrate by the greater weight of the credible evidence that either he reported the harassment to management or that management should have reasonably known of the harassment, the Complainant fails to meet his burden of proof with respect to this claim. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

A single incident involving Respondent supervisor's insensitive, hurtful, and racially biased statement to Complainant, in the context of an extensive personal history of sympathetic or friendly relations between the two and pre-dating Complainant's employment with Respondent, is insufficient to establish a pattern or practice of supervisory harassment. The ordinance does not establish a per se standard in which even a single incident can establish violation of the ordinance. Even this single incident when considered in combination with a similar but more ambiguous incident between Complainant and a second Respondent supervisor does not rise to the level of a hostile workplace that would permit the Hearing Examiner to find a persistent pattern or practice of harassing conduct. The two isolated and individual incidents do not establish illegal discrimination under the terms of the ordinance. The Complainant was not subject to harassment on the basis of his race or color by a manager of the Respondent. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

Complainant's general complaints fail to specify the actual method or manner of harassment and thus do not establish that the Complainant was subjected to a pervasive pattern or practice of patently offensive language or conduct of an explicitly racial nature stemming from the supervisors at the Complainant's workplace. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

In the case of harassment by a customer, it must be demonstrated that the employer either knew or reasonably should have known of the harassment and failed to take reasonable steps to eliminate the conduct. The Hearing Examiner finds that there is insufficient support in the record to conclude that the Complainant complained to Respondent management about discriminatory language or treatment at the hands of customers, leading Hearing Examiner to conclude that Complainant may have been harassed by customers of the Respondent because of his race or color, but he failed to report those incidents. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

226.4 Promotion, Compensation, Terms of Employment

Although a black data entry operator had more general supervisory experience, it was not race discrimination for his employer to select a white data entry operator for a supervisory position who had a significantly higher production and lower error ratio where the employer had traditionally relied on these criteria as the sole determinative factors in such promotions. Robinson v. Electronic Data Systems, MEOC Case No. 2559 (Ex. Dec. 1/7/81).

Complainant failed to prevail on her claim of race discrimination in regard to promotion. The Complainant, who is Black, alleged that she should have been promoted from her Employee Relations Assistant II position sooner than she actually was. She claimed that criticism of her communications skills was racially motivated and affected her promotional opportunities. The Complainant did not, however, adequately rebut the Respondent's articulated reasons that the Complainant was not promoted in May of 1985 primarily because her job duties and responsibilities had not changed sufficiently to warrant promotion (the Complainant was promoted in 1986). The Commission affirmed the Hearing Examiner's decision in its entirety. McCarter v. Wisconsin Power and Light, MEOC Case No. 20471 (Comm. Dec. 3/26/87, Ex. Dec. 12/29/86).

The Hearing Examiner found that the Complainant had failed to prove that the Respondent's failure to promote him was based upon his race. The Hearing Examiner determined that other applicants were more qualified, and the areas in which the Complainant perceived that he was more qualified were not essential to the job. Lynes v. Marquip, Inc., MEOC Case No. 21797 (Ex. Dec. 12/12/94).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

The Hearing Examiner concluded that the Complainant's (a Black Dominican) demotion and the requirement that he produce a doctor's excuse for his absence were not predicated on either his race or national origin/ancestry but were reasonable and non-discriminatory exercises of management authority. The Hearing Examiner found that he was without jurisdiction to consider Complainant's claim regarding termination because the Complainant had not timely appealed a finding of no probable cause with respect to this allegation. De Leon v. Woodman's Food Market - West, MEOC Case No. 22080 (Ex. Dec. 6/11/97).

African-American construction worker brought action against his employer, claiming that his employer discriminated against him based upon his race and color. The employer allegedly displaced the worker from certain equipment, denying him overtime opportunities. The worker argued that this action constituted race-based discrimination with respect to compensation and the conditions and privileges of employment. The Hearing Examiner found that the employer had neither displaced the worker nor exhibited any racial animus. The worker had voluntarily stepped aside for another, more experienced employee who needed additional overtime hours. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).

The Complainant received the same or a better rate of pay than other similarly situated employees regardless of his race or color, and the record does not support a claim that the Complainant's race or color played any role in the rate of his pay. Nothing in the record establishes that the Complainant was either paid less than comparably situated White employees or that he was denied any limited opportunity to advance or to train for advancement because of his race or color. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

226.5 Termination-Race

In establishing a prima facie case of discriminatory discharge, it is not always necessary for a complainant to show that s/he was replaced or that the replacement was of a different race. Morgan v. Community Action Comm., supra.

A black employee failed to show that he was discriminated against on the basis of race in regard to discharge. The evidence showed that his discharge was due to his absence for three work days without calling in, and the complainant failed to show that the respondent's articulated reason was a pretext for race discrimination. Vance v. Eastex Packaging, supra.

A black employee proved race was a motivating factor in his discharge where he showed that a number of the employer's articulated reasons for terminating him were not credible and that the employer did not afford him the same level of due process as a white employee had been afforded for a comparable infraction. More specifically, the complainant showed that he was not late for work and that he was not hung over or drunk as asserted by the respondent. Further, the complainant was not given an opportunity to rebut the accusations against him whereas a white employee who had been accused of smoking marijuana while working was afforded an opportunity to rebut those accusations and no action was taken against him. Sanders v. U-Haul Company of Western Wisconsin, MEOC Case No. 20288 (Ex. Dec. 5/22/85).

It was not race discrimination to discharge a black "temporary" employee without prior warnings for a work-related offense where the only white employee shown to be given progressive discipline prior to discharge was a "permanent" worker shown to be subject to a separate set of disciplinary rules. Goldsberry v. ChemLawn, MEOC Case No. 2967 (Ex. Dec. 11/21/83).

. . . but it was discrimination to summarily discharge a black employee while white employees who had committed comparable or more serious violations were terminated, if at all, only after progressive discipline. Morgan v. Community Action Comm., supra.

A laid off a black employee failed to show that a less senior white employee who was retained had the same job description and duties. Davis v. Alpine Rentals, MEOC Case No. 2473 (Ex. Dec. 7/16/80).

A black employee who was otherwise a good employee was nevertheless not discriminated against where he was discharged for violating his employer's unwritten requirement of calling on the day of an unanticipated absence; . . . and a different application of this rule by supervisors in other departments did not establish disparate treatment where the employer showed that each department was autonomous and operated without upper management interference. Jackson v. Madison Club, MEOC Case No. 2715 (Ex. Dec. 9/24/81).

Where the employer's work rule stated that fighting could lead to dismissal, a black employee who was discharged by the employer without investigation along with the white employee with whom he fought did not show race discrimination and his claim of self defense was rejected. Hargons v. Gardner Baking, MEOC Case No. 2619 (Comm. Dec. 11/9/81, Ex. Dec. 4/29/81).

Although a black employee's absence and tardiness record was far from exemplary, it was discrimination to discharge him where white employees with worse records were retained and where supervisors were inconsistent in reporting absences; . . . and the employer's claim that the black employee also performed poorly in his job was found to be pretextual. Fitzgerald v. Hillhaven, MEOC Case No. 2757 (Ex. Dec. 2/18/82).

Complainant alleged that the Respondent discriminated against him because of his race with respect to the terms, conditions, and benefits of his employment by engaging in racial harassment, and that he was discharged from his employment because of his race. The Hearing Examiner determined that the evidence failed to support Complainant's racial discrimination claim. It was Complainant's conduct in swearing at Respondent that resulted in his termination. Magee v. John Neal Company. Inc. et al., MEOC Case No. 20777 (Ex. Dec. 8/29/89).

When Respondent failed to appear at the hearing, the Hearing Examiner found, based on the Complainant's testimony, that the Complainant was terminated from Respondent's employment under circumstances for which White employees were not terminated. Perez v. Affiliated Carriage Systems, MEOC Case No. 20938 (Comm. Dec. 6/3/92, Ex. Dec. 12/30/91) Affiliated Carriage Systems, Inc., v. Equal Opportunities Commission of the City of Madison, 92 CV 2714 (Dane County Cir. Ct. 2/25/93).

The Hearing Examiner found that the Respondent did not discriminate against the Complainant on the basis of race; several instances of problems with co-workers were found to have no racial component, and Respondent made reasonable efforts to end racial harassment that did occur. Morgan v. Hazelton Labs, MEOC Case No. 21005 (Ex. Dec. 4/2/93).

The Hearing Examiner found that the Complainant's employment was terminated as a result of her poor work performance and the Respondent's perception that she was regularly violating the provisions of her work contract, and not because of her race or sex. Baker v. Capital Services Inc., MEOC Case No. 21489 (Ex. Dec. 5/7/93).

The Complainant prevailed on her discrimination claim based on race and sex in regard to termination from employment. The Respondent alleged that Complainant was terminated due to violation of its telephone restrictions. The Hearing Examiner found that a White male employee was not terminated under similar circumstances. However, the Respondent was not found to have discriminated against Complainant on the basis of race or sex in failing to offer her a position performing floor care and by following her and another co-worker around their assigned areas, as she was not qualified for the floor care position, and Respondent was exercising its normal supervisory authority by checking on her work. The Respondent failed to appear at the hearing. The Complainant was awarded $16,666.80 in back pay, $2,000.00 in compensatory damages and reinstatement. Franklin v. Capital Services, MEOC Case No. 21490 (Ex. Dec. 5/14/93).

The Complainant, an African American male, was not terminated from his employment or disciplined more harshly than others not of his race because of his race but because he had significantly violated the Respondent's attendance policy. The white employees to whom the Complainant pointed to show discrimination were not similarly situated to the Complainant. Maas v. Woodman's Food Markets, Inc., MEOC Case No. 21724 (Ex. Dec. 8/4/94).

The Respondent was found to have discriminated against the Complainant, a black male, on the basis of race in regard to employment termination. It was proven that the Respondent treated Complainant differently with respect to discipline. Complainant was awarded back pay, front pay, prejudgment interest, and reasonable costs and attorney's fees. On appeal, the Commission upheld the Examiner's ruling. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. The Court found that the Commission's use of the "in part" test for determining discrimination was appropriate. The Court of Appeals affirmed the judgment below stating that it need not determine whether the substantial evidence test or the "in part" test was appropriate because the level of proof of discrimination was sufficient under either test. The Court of Appeals remanded the complaint to the Commission for further determination of damages. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

Respondent did not discriminate against the Complainant on the basis of his race when it terminated his employment because of its legitimate suspicions about the Complainant's possible theft from the company. The Complainant's attempt to compare his treatment to that of other white employees drew on too narrow a group for comparison. McKoy v. Prange Way, MEOC Case No. 21639 (Ex. Dec. 1/31/95).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The hearing examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the hearing examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the hearing examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

Complainant, a black male, failed to show that Respondent terminated him because of his race. The hearing examiner concluded that Complainant's inability and sometimes refusal to perform standard tasks of clerks such as cleaning restrooms, and slicing meat was the basis for the termination. The hearing examiner also found that Complainant was not terminated because of his race because two (2) white employees were terminated by Respondent near the time frame as Complainant for similar reasons. Harper v. Open Pantry Food Marts, MEOC Case No. 2771 (Comm. Dec. 8/31/82, Ex. Dec. 4/13/82).

Defendant's motion to dismiss was granted when Complainant, a black male, failed to establish a primae facie case concerning allegations that he was terminated because of his race. The hearing examiner determined that Complainant's five (5) written disciplinary warnings and numerous verbal warnings for various infractions were the motivating factors for terminating the Complainant. The Commission later adopted the hearing examiner's reasoning. Rumph v. Ohio Medical Products, MEOC Case No. 2946 (Comm. Dec. 8/4/83, Ex. Dec. 3/24/83).

African-American construction worker brought action against his employer, alleging that his employer discriminated against him based upon his race and color when his employer fired him. The Hearing Examiner found that the worker was mistaken about having been fired. After having been replaced aboard certain equipment, the worker simply departed and never returned. The employer later contacted the worker and clearly invited him back, but the worker declined. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).

The Complainant (black/African-American) alleged that the Respondent suspended him and later terminated his employment on account of his race and color. The Hearing Examiner concluded that the Complainant failed to establish a nexus between his membership in a protected class and the adverse actions he suffered. In this regard, the Complainant primarily argued that, in the year following his termination, the Respondent hired a number of individuals outside of his protected class. The Hearing Examiner held that this fact, without more, cannot result in a finding that the Respondent's actions towards the Complainant were racially motivated. Rather, at most, the record supports finding that the Respondent's actions were symptomatic of a lapse in business judgment. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11, 2nd Ex. Dec. 11/30/11, Comm. Dec. 05/23/12).

Complainant alleges that unfair treatment during his work tenure, and his eventual termination, was due to race and sex discrimination on the part of supervisory staff. The Hearing Examiner found that Complainant's employment was terminated because his attitude and actions caused his supervisors and coworkers, both African American and white, male and female, to no longer be able to work with the Complainant. The Complainant's inability to work with others or to work towards resolution of outstanding issues required his termination. Neither the Complainant's sex nor his race or color were motivating factors in his termination. Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (Ex. Dec. 7/3/2013).

At the time of the Complainant's termination, Respondent employed at least one other African American in the position of Delivery Driver. While the Hearing Examiner does find the Respondent's failure to document its termination decision troubling, the Hearing Examiner concludes that the Complainant fails to present sufficient evidence for the Hearing Examiner to conclude that his race or color was a motivating factor in the Respondent's decision to terminate Complainant. Complainant has failed to carry his burden of proof as to either the existence of a causal connection between his race or color and his termination, or that if such a causal connection has been made that the Respondent's explanation is pretextual. The Hearing Examiner concludes that the Complainant's termination was not motivated by his race or color. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

226.9 Miscellaneous

A complainant may establish a prima facie case of discrimination by showing that s/he was treated differently than others in similar situations. Monroe v. Swiss Colony, MEOC Case No. 2534 (Ex. Dec. 9/5/80); . . . the burden then shifts to the employer to produce evidence to rebut this showing; the complainant retains the ultimate burden of showing that the employer's evidence is a pretext for discrimination. Morgan v. Community Action Comm., MEOC Case No. 2642 (Ex. Dec. 2/12/82); Goldsberry v. ChemLawn, MEOC Case No. 2967 (Ex. Dec. 11/21/83).

In a mixed-motive case, it is sufficient to prove liability for race discrimination by showing that race was a motivating factor relied on by the employer even where the employer also relied on some nondiscriminatory motives. Sanders v. U-Haul Company of Western Wisconsin, MEOC Case No. 20288 (Ex. Dec. 5/22/85).

No race discrimination was found in regard to job assignments of a female Native American employed as a steam fitter apprentice where the Respondents job assignment actions were based on her sex. Whiteagle v. Badger Mechanical, MEOC Case No. 20133 (Comm. Dec. 1/31/86, 8/6/86, Ex. Dec. on liability 6/14/85, on damages 9/25/85, on remand 4/28/86).

African-American construction worker brought action against his employer, alleging that his employer discriminated against him based upon his race and color. The employer allegedly displaced the worker from certain equipment, denying him overtime opportunities. Thereafter, the employer allegedly fired the worker. Based upon the record, the Hearing Examiner found that the employer had neither displaced the worker, nor fired him, nor showed any racial animus. The worker was evidently mistaken about having been fired, and although the employer invited him back, the worker declined. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).

An employer's failure to undertake, conduct and complete an adequate investigation of a racial discrimination claim may not create a per se violation of the ordinance. However, this failure to investigate, coupled with the employer's conduct and proposed resolution, which included a forced face to face meeting between accuser and accused and a refusal to consider a transfer of either the Complainant or the supervisor, was the basis for a finding of liability of either discrimination on the basis of race or retaliation for the exercise of rights protected by the ordinance. The retaliation claim was based on the ordinance's prohibition of coercing, intimidating, or otherwise discriminating against a person for an exercise of rights protected by the ordinance. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

The racial composition of the rest of the Respondent's workplaces does not overcome the finding that the Complainant's race was a motivating factor in her treatment, even where the composition evinces equal opportunity hiring for minorities. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

The Complainant, an African American, walks with a pronounced limp. He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises.  After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability.  The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary.  Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The Complainant, a black, African-American male, was denied the opportunity to rent a truck and was told to leave the Respondent's store after a dispute with the Respondent's acting manager. Testers, not of the Complainant's race and color, helped demonstrate that the Respondent's actions were likely motivated by the Complainant's race and color. The Hearing Examiner awarded the Complainant $15,000.00 in damages for emotional distress based, in part, on the testimony of a treating physician. The Respondent was also ordered to pay the Complainant's costs and fees including a reasonable attorney's fee. Jackson v. UHAUL, MEOC Case No. 20093107 (Ex. Dec. 02/08/12)

227 Religion Discrimination

227.1 Coverage; Generally

227.2 Exception Allowing Religious Associations to Give Preference to Adherents to Their Creed

227.3 Constitutional Issues

227.4 Employer's Duty to Accommodate

Complainant alleged that the Respondents discriminated against him on the basis of his disability (depression and anxiety disorder) when it failed to accommodate his disability and terminated his employment. The Respondent asserted that the Complainant violated the Respondent's attendance policy, that he was moody and that he had quit. The Respondent failed to respond to the Complainant's Request for Admissions, and as a result, the Respondent is deemed to have admitted the allegations contained in the admissions. Accordingly, the Hearing Examiner held that the Respondent knew of the Complainant's disability and failed to extend clemency or forbearance for any possible violation by the Complainant of the Respondent's attendance policy. The Hearing Examiner found that the Complainant's disability was, at least in part, a motivating factor in the Respondent's termination of the Complainant. The Hearing Examiner ordered the Respondent to pay the Complainant's lost wages, damages for emotional distress, and attorney's fees. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. 3/12/10).

227.5 Harassment Because of Creed

227.6 Cases

227.9 Miscellaneous

228 Sex Discrimination

228.1 Coverage, Exceptions

A sex discrimination complainant will prevail by showing directly that a discriminatory reason likely motivated the employer or showing directly that the employer's stated reasons for its actions are not believable. Madison Gen. Hosp. v. MEOC (Dayton), No. 81-CV-1925 (Dane County Cir. Ct., 7/9/82).

228.11 Sex as a Bona Fide Occupational Qualifications (BFOQ)

Sex (female) was a BFOQ for a medical technologist position at a clinic run by two male doctors where they established that it was necessary to have a female on duty to accommodate the privacy wishes of some of their patients. Robbins v. Walsh Clinic, MEOC Case No. 2512 (Comm. Dec. 2/20/81, Ex. Dec. 10/10/80).

Bona fide occupational qualification exceptions are to be granted only in rare circumstances, and the burden is on the employer to establish that a BFOQ exists or is necessary; where an employer alleges that a BFOQ is required because of ability to perform on the basis of sex, an employer must how that: (1) the BFOQ is reasonably necessary to the normal operation of the business; and (2) the essence of the business would be undermined by not hiring members of one sex exclusively; . . . in cases where an employer alleges that a BFOQ is required because of its perception of customer privacy interests; the employer must show, in addition to (1) and (2) above, that the nature of the business makes it infeasible to assign job responsibilities in a selective manner to avoid collision with the privacy rights of the customers; . . . and, while a women's apparel store discriminatorily refused to hire a male applicant for a sales clerk job, it would have been legitimate not to schedule him at those times when no female clerks would have been available to enter and inspect the dressing rooms. Bodle v. Midwest Fashions, MEOC Case No. 2781 (Ex. Dec. 4/5/82).

228.12 Pregnancy, Childbirth, Maternity Leave or Related Medical Condition

The Complainant alleged that the Respondent discriminated against her on account of her sex (pregnancy/maternity) in her terms and conditions of employment (reduction of hours and harassment) and in the termination of her employment (refusal to rehire). The Hearing Examiner concluded that the facts and evidence did not support a finding of discrimination. Specifically, the Hearing Examiner found that, while the Complainant's reduction in work hours corresponded with her pregnancy, the reduction could reasonably be explained by the Respondent's seasonal requirements. Further, a female employee that was not a member of the Complainant's protected class also suffered a reduction in hours at the same time as the Complainant. The Hearing Examiner found that despite a less than cordial working relationship between the Complainant and her manager, the Complainant had not been subjected to a hostile work environment because of her pregnancy/maternity. The Hearing Examiner also found that the Complainant failed to adequately follow up with the Respondent about returning to work after a confrontation with her manager and again after the birth of her child. Had the Complainant better communicated with the Respondent, it is likely that she would have been permitted to return to work. Robinson v. Bridges Golf Course, MEOC Case No. 20092058 (Ex. Dec. 07/27/12).

228.13 "Sex Plus"

The Hearing Examiner applied a "sex plus" theory to bring complainant's claim of discrimination based upon her status as a pregnant employee under the Commission's jurisdiction. Though the Common Council adopted Title VII protections before Title VII included the Pregnancy Discrimination Act, the federal courts had interpreted Title VII to encompass the "sex plus" theory. Ultimately the Hearing Examiner concluded that the Complainant failed to establish that the Respondent's failure to promote her resulted from her pregnancy or her sex. Dickson v. Woodman's, MEOC Case No. 21919 (Ex. Dec. 10/23/95).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).

The Complainant alleged that the Respondent discriminated against her on account of her sex (pregnancy/maternity) in her terms and conditions of employment (reduction of hours and harassment) and in the termination of her employment (refusal to rehire). The Hearing Examiner concluded that the facts and evidence did not support a finding of discrimination. Specifically, the Hearing Examiner found that, while the Complainant's reduction in work hours corresponded with her pregnancy, the reduction could reasonably be explained by the Respondent's seasonal requirements. Further, a female employee that was not a member of the Complainant's protected class also suffered a reduction in hours at the same time as the Complainant. The Hearing Examiner found that despite a less than cordial working relationship between the Complainant and her manager, the Complainant had not been subjected to a hostile work environment because of her pregnancy/maternity. The Hearing Examiner also found that the Complainant failed to adequately follow up with the Respondent about returning to work after a confrontation with her manager and again after the birth of her child. Had the Complainant better communicated with the Respondent, it is likely that she would have been permitted to return to work. Robinson v. Bridges Golf Course, MEOC Case No. 20092058 (Ex. Dec. 07/27/12).

228.2 Hire

It was sex discrimination to reject a female applicant for a truck driver position because of her refusal to demonstrate she could lift heavy boxes where males were not asked to do so. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/23/80), aff'd, No. 80-1906 (Wis. Sup. Ct., 3/20/82 and 4/6/82).

A male who was initially selected for a staff position as a neighborhood coordinator but was later replaced by a female prior to the actual starting date of the job was not discriminated against on the basis of his sex where he had performed poorly in the interim as a volunteer on related work. State ex rel. Adams v. MEOC, (Northport Packers), No. 82-CV-1637 (Dane County Cir. Ct., 6/9/83).

A complainant who volunteered during her interview for a warehouse delivery job that she would leave for another job in as soon as six months if she were called failed to show that she was discriminated against on account of her sex. She failed to show as pretextual the employer's articulated reason that a male was hired because the employer believed he would stay longer. Wroblewski v. Rock-A-Bye Youth Center, MEOC Case No. 20206 (Ex. Dec. 1/24/85).

The Hearing Examiner awarded the Complainant relief when Respondent failed to appear at the pre-hearing conference. The Complainant presented evidence that when she contacted Respondent to apply for employment as a general laborer, painter, and construction helper, the Respondent refused to consider her application because she is female, without having considered her qualifications for the position. Baremore v. Allen and Procknow, MEOC Case No. 20619 (Ex. Dec. 4/1/87).

Complainant alleged that he was not recalled to employment because of his sex. However, it was Complainant's poor attendance record during a past temporary position with Respondent that ultimately led to the decision not to hire. Allen v. Wisconsin Bell, MEOC Case No. 20804 (Ex. Dec. 8/1/89).

After hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the bases of her race, color and ancestry when it failed to hire her for a teaching position. The Hearing Examiner dismissed a claim of discrimination based upon the Complainant's sex and a claim that the Respondent had retaliated against the Complainant for her filing of an internal complaint of discrimination. The Hearing Examiner awarded the Complainant $25,860 in back pay and $25,000 compensatory damages for emotional distress, and costs and reasonable attorney's fees. The Commission reversed the Hearing Examiner and found that the Complainant had not proven her claim of discrimination and dismissed the complaint. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

Complainant, a female, established a prima facie case of discrimination on the basis of sex when the evidence showed Respondent failed to assign her to a light labor position while assigning a male to that position. Complainant was clearly more qualified for almost any type of construction or laborer position than the male who received the assignment thereby leading no credibility to Respondent's argument that it was required to match the qualifications of the two applicants and to consider the work requirements involved. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).

228.3 Sexual Harassment

The Hearing Examiner determined that the Complainant's claims of racial and sexual harassment were not supported on the record. Specifically the Examiner determined that once the Respondent's manager was given sufficiently specific allegations to investigate, a complete and thorough investigation was made. The Complainant could not testify to any specific acts of harassment occurring after the manager's investigation and warning in the workplace that harassment would not be tolerated. Stinson v. Bell Laboratory, MEOC Case No. 20762 (Comm. Dec. 12/14/89, Ex. Dec. 3/17/89).

The Complainant's allegation of sexual harassment was dismissed for lack of evidence because the Complainant's testimony was deemed unreliable by the Respondent and the Hearing Examiner. Joseph v. The Swiss Colony, MEOC Case No. 20984 (Ex. Dec.6/28/89).

Respondent brought a motion to dismiss for lack of jurisdiction because Complainant failed to utilize the sexual harassment policy that was adopted shortly before her leaving the employment of the Respondent. The Hearing Examiner determined that there is no requirement of exhaustion of internal procedures recognized in sexual harassment law. Whether the Complainant properly rejected use of the Respondent's sexual harassment policy can be a factor in determining whether her leaving employment was reasonable under the circumstances. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99).

It is reasonable and essential for an employer to have an opportunity to conduct an internal investigation into allegations of harassment. Termination upon receiving notice of possible harassment is unwarranted. An employer did not fail to provide an environment free of sexual harassment when it acted promptly upon being notified of possible harassment. Pflaum v. Union Transfer and Storage, Inc., MEOC Case No. 20002092 (ex. Dec. 4/5/02).

228.4 Compensation, Benefits, Equal Pay

A female college teacher showed that her initial salary was discriminatorily set below that for a male with a similar educational background where the college relied solely on such backgrounds in determining the salary groupings; but she was unable to show that her step level within that grouping was also set discriminatorily where she did not meet the college's criteria of relevant work experience for a higher step level, and males who also had work experience similar to hers were set at the same level. Meyer v. MATC, MEOC Case No. 2603 (Comm. Dec. 11/9/81, Ex. Dec. 6/16/81).

228.5 Promotion, Job Assignments

A female applicant who was at least equally qualified and had more seniority than the male who was selected for a supervisory position established that her sex was a factor in the decision by showing that the employer traditionally used seniority as the determining factor where two applicants for promotion were equally qualified; . . . and the employer's argument that the male had more supervisory experience was a pretext for discrimination where another male who did not meet the minimum supervisory qualifications was seriously considered for the job. Madison Gen. Hosp. v. MEOC (Dayton), supra.

A Respondent was found to have discriminated against the Complainant on the basis of sex in regard to job assignments. The Complainant, a female Native American, was employed by the Respondent as a steam fitter apprentice. The Complainant's supervisor testified that he had not assigned the Complainant to certain job duties because he "didn't feel it was her place to be down in that tunnel anyway" and because he "did not want to put a girl in the hole down there." The Complainant also was not assigned to work with a journey person partner as frequently as male apprentices were. Whiteagle v. Badger Mechanical, MEOC Case No. 20133 (Comm. Dec. 1/31/86, 8/6/86, Ex. Dec. on liability 6/14/85, on damages 9/25/85, on remand 4/28/86).

The Complainant filed a discrimination complaint against the Respondent on the basis of sex alleging she was treated differently from male employees. The complaint was later amended to include retaliation for filing the complaint when she was discharged from employment. The Respondent discriminated against the Complainant in regard to terms and conditions, but the Complainant's violation of work policy was a non-retaliatory reason for discharge from employment. The Complainant was awarded $5,000.00 in compensatory damages for emotional distress, attorney's fees and costs. Because of procedural irregularities, the Commission remanded the termination portion of the complaint: 1) to the investigator for issuance of an initial determination with respect to the allegation of retaliatory termination, and 2) to the Hearing Examiner for consideration of and decision on the allegation that the Complainant's termination was based upon her sex. (The case was settled before either the Investigator's or Hearing Examiner's decisions on remand.) The Commission affirmed the Hearing Examiner's decision, finding discrimination relating to discipline, provision of training and permitting a hostile work environment to exist. The Commission concluded that the Complainant's claim of reduced promotional opportunities was not proven. The Commission affirmed the Hearing Examiner's award of $5,000 for emotional damages and the order for costs and attorney's fees. Hagland v. Bancroft Dairy, MEOC Case No. 20909 (Comm. Dec. 11/11/93, 12/15/93, Ex. Dec. 4/15/93, Ex. Dec. on admissibility of results of polygraph examination 12/22/80).

The Hearing Examiner applied a "sex plus" theory to bring complainant's claim of discrimination based upon her status as a pregnant employee under the Commission's jurisdiction. Though the Common Council adopted Title VII protections before Title VII included the Pregnancy Discrimination Act, the federal courts had interpreted Title VII to encompass the "sex plus" theory. Ultimately the Hearing Examiner concluded that the Complainant failed to establish that the Respondent's failure to promote her resulted from her pregnancy or her sex. Dickson v. Woodman's, MEOC Case No. 21919 (Ex. Dec. 10/23/95).

The hearing examiner determined that Complainant, a female, was discriminated against based on her sex when she did not receive a promotional position as a supervisor for security and parking, and a male who was less qualified was promoted instead. Respondent's reasons for failing to promote Complainant were found to be a pretext because Complainant had more work and job related experience than the male who received the promotion.

The hearing examiner also ruled that if the Complainant and the male who received the promotion were viewed as equally qualified, the seniority rule would still cause the Complainant to receive the promotion because Complainant had been at the job longer than the male who received the promotion. Dayton v. Madison Gen. Hospital, MEOC Case No. 2535 (Comm. Dec. 3/5/81, Ex. Dec. 10/17/80).

228.6 Termination-Sex

228.61 Termination Because of Sex, Generally

Complainant was ostensibly terminated for acquiring property from her employer with an IOU, which violated store policy regarding payment of the full purchase price. Although other employees were involved in the transaction, Complainant—who was the only female involved—was the only employee disciplined. Respondent maintained that Complainant was actually terminated for shopping on the clock, but the fact that Complainant alone was disciplined, while male coworkers were spared, was sufficient to demonstrate sex discrimination. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

A female apprentice failed to show that an employer's articulated reasons for her layoff (discharge) were a pretext for sex discrimination. The employer's articulated reasons were that two male apprentices had been retained because they had far more substantial welding backgrounds than the complainant and the complainant also had once been warned about removing scrap metal from salvage for personal use without the employer's permission. Whiteagle v. Badger Mechanical, supra.

Even though an employer failed to recall a female construction worker but recalled less senior male employees and hired some new male employees with specific skills, the female employee failed to overcome the employer's allegations that she was a less skillful employee than those males who had been recalled or subsequently hired. Bruhn (Laufenberg) v. Badger Expediting, MEOC Case No. 2826 (Ex. Dec. 4/1/82).

Complainant, a male, proved that the Respondent discriminated against him on the basis of sex in discharging him from his employment. The Hearing Examiner held that discrimination was proved by evidence that approximately a week before Complainant's discharge, his female supervisor was heard to say "There are too many males in this program and something has to be done," and that when asked what she meant by that statement, said "You know how you men are," together with evidence that Complainant was not adequately supervised or instructed with respect to his job duties. The Commission affirmed the Hearing Examiner's decision on Respondent's appeal, and Dane County Circuit Court affirmed the decision, finding it was supported by substantial evidence in the record. Scott v. United Neighborhood Centers, MEOC Case No. 20464 (Comm. Dec. 1/7/87, Ex. Dec. 7/31/86), United Neighborhood Center v. City of Madison EOC and Scott, 87 CV 744 (Dane County Cir. Ct. l/21/88).

Complainant, a fifty-eight (58) year old female who was terminated, filed a claim of discrimination against Respondent based on age and sex in regards to terms and conditions of employment and termination of employment. The hearing examiner concluded Respondent had discriminated against Complainant because her supervisor was overheard making disparaging comments relating to Complainant's age and because statistics indicated that the Respondent overwhelmingly promoted, hired and transferred individuals who were 35 years and under.

The hearing examiner did not find that Respondent discriminated against Complainant because of her sex despite Complainant's ability to establish a prima facie case. This was because statistics for promotions and terminations relating to sex were not as probative as compared to the age discrimination statistics. May v. State Medical Society, MEOC Case No. 2584 (Comm. Dec. 4/21/82, Ex. Dec. 10/20/81) See Painters Union Local 802 v. Madison Newspapers Inc.

Complainant alleges that unfair treatment during his work tenure, and his eventual termination, was due to race and sex discrimination on the part of supervisory staff. The Hearing Examiner found that Complainant's employment was terminated because his attitude and actions caused his supervisors and coworkers, both African American and white, male and female, to no longer be able to work with the Complainant. The Complainant's inability to work with others or to work towards resolution of outstanding issues required his termination. Neither the Complainant's sex nor his race or color were motivating factors in his termination. Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (Ex. Dec. 7/3/2013).

228.62 Termination Because of Pregnancy, Childbirth, Maternity Leave or Related Medical Condition

When the Respondent did not appear at hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the basis of her sex when it terminated her employment approximately two weeks after she gave birth. The Respondent was ordered to pay back pay of $9,000, compensatory damages for emotional distress of $10,000, punitive damages of $20,000 and costs and reasonable attorney's fees. In a separate decision, the Hearing Examiner awarded attorney's fees of $1,560 and costs of $96. Balch v. Snapshots, Inc. of Madison, MEOC Case No. 21730 (Ex. Dec. on liability 10/14/93, on damages 12/9/93).

The Complainant alleged that the Respondent discriminated against her on account of her sex (pregnancy/maternity) in her terms and conditions of employment (reduction of hours and harassment) and in the termination of her employment (refusal to rehire). The Hearing Examiner concluded that the facts and evidence did not support a finding of discrimination. Specifically, the Hearing Examiner found that, while the Complainant's reduction in work hours corresponded with her pregnancy, the reduction could reasonably be explained by the Respondent's seasonal requirements. Further, a female employee that was not a member of the Complainant's protected class also suffered a reduction in hours at the same time as the Complainant. The Hearing Examiner found that despite a less than cordial working relationship between the Complainant and her manager, the Complainant had not been subjected to a hostile work environment because of her pregnancy/maternity. The Hearing Examiner also found that the Complainant failed to adequately follow up with the Respondent about returning to work after a confrontation with her manager and again after the birth of her child. Had the Complainant better communicated with the Respondent, it is likely that she would have been permitted to return to work. Robinson v. Bridges Golf Course, MEOC Case No. 20092058 (Ex. Dec. 07/27/12).

Respondent knew of Complainant's pregnancy via workplace talk though Complainant did not self-identify. Respondent was held not to have discriminated against Complainant because he did not recall Complainant back to work after an agreed-upon layoff. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

229 Sexual Orientation Discrimination

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of her sexual orientation (lesbian) in failing to extend her limited term employment or to hire her for several positions on either the adult or children's psychiatric units. The Hearing Examiner was persuaded by the Respondent's explanation that other employees and applicants were more qualified than the Complainant for these positions. The Complainant also contended that her LTE position had been prematurely terminated. The Hearing Examiner found that her position had expired and that she had not lost any shifts to which she may have otherwise been entitled. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec. 11/11/97, on motion to dismiss 2/19/96).

Complainant was discriminated against by Respondent when she was refused employment due to Respondent's perception of Complainant's sexual orientation. The Respondent had hired a less qualified applicant and denied further hiring procedures on the basis of a higher-level supervisor's perception that Complainant was a lesbian and hiring a lesbian would "disrupt the office." Ashford v. Magna Publishing, MEOC Case No. 22719 (Ex. Dec. 3/27/00), aff'd by Magna Publishing v. MEOC (Ashford), No. 00-CV-2908 (Dane County Cir. Ct., 7/26/01).

Although the Complainant, a homosexual male, is protected by the Equal Opportunities Ordinance, Sec. 3.23, because of his sexual orientation, Respondent did not discriminate against him on this basis upon discharging him from employment. The Hearing Examiner concluded that Complainant's extreme and undesirable public behavior at a work- related convention was the Respondent's non-discriminatory reason for terminating Complaint's employment. Goad v. Ahrens Cadillac/Oldsmobile, Inc., MEOC Case No. 20022061 (Comm. Dec. 12/26/06, Ex. Dec. 8/6/06).

230 Other Protected Classes

230.1 Color

230.2 Source of Income

230.3 Less Than Honorable Discharge

230.4 Political Beliefs

The term "political beliefs" is not so vague or uncertain that the ordinance should be declared unconstitutional; . . . nor is the term "political beliefs" limited to those convictions and conclusions related to governmental policy; politics is present wherever there is a power struggle between competing interest groups for valued social goods or resources; . . . however, each and every manifestation of a political belief is not protected against discrimination. Northport Apts. v. MEOC (Carey), No. 80-CV-2680 (Dane County Cir. Ct., 3/12/81).

Respondents' moved to dismiss complaints of discrimination on the basis of political belief (trade unionism) based on preemption by federal law. The Complainants had filed unfair labor practice complaints at approximately the same time as their Commission complaints. The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. Moyer, Carey and Kaatz v. Thrift Painting and Genesis Companies Inc., MEOC Case Nos. 22440, 22441, 22447, 22448, 22449, and 22450 (Ex. Dec. 7/7/97).

230.5 Student Status

240 Retaliation

240.1 Coverage

An employee or job applicant's good faith opposition to practices believed to be discriminatory is protected by the Ordinance even though some opposition may not reach the formal complaint stage or even though an underlying formal complaint may be withdrawn or found to be without merit; . . . but opposition which takes the form of illegal activity is generally not protected. Perez v. Kupfer Iron Wks., MEOC Case No. 2700 (Comm. Dec. 6/10/82, Ex. Dec. 2/8/82).

"Good faith" may be established by, among other methods, an initial determination of probable cause. Id.

The Respondent discharged the Complainant partially based on several incidents of misconduct, not by reason of race. Respondent did not discriminate in regard to discipline, terms and conditions of employment and termination in retaliation against the Complainant for filing a complaint. The Respondent was ordered to cease and desist from retaliation against the Complainant. Reinstatement was not ordered because the Complainant did not seek it. Complainant was awarded $3,332.72 in back pay, $4,000.00 as compensation for emotional injuries and attorney's fees and costs. Morgan v. Hazelton Labs, MEOC Case No. 21005 (Ex. Dec. 4/2/93).

The Hearing Examiner determined that the Respondent had not discriminated against the Complainant, a male driver who wore makeup and jewelry, on the bases of sex, sexual orientation and physical appearance, when it disciplined him for an apparent violation of an agreement settling an earlier discrimination action. The Examiner did conclude that the Respondent had retaliated against the Complainant in violation of the ordinance for issuing a disciplinary letter. The Examiner ordered the Respondent to withdraw the disciplinary letter and to stop retaliating against the Complainant, but awarded no monetary damages nor attorney's fees. The Commission found that in addition to retaliation, the Complainant had demonstrated that he had been discriminated against on the basis of his physical appearance. The Commission also reversed the Hearing Examiner's determination that attorney's fees for the Complainant's earlier consultations with attorneys was not awardable, and remanded the case to the Hearing Examiner for the determination of appropriate attorney's fees. The Commission concurred with the Hearing Examiner's conclusion that emotional damages were not appropriate in this instance, but specifically declined to adopt the Examiner's rationale. Maxwell v. Union Cab Cooperative, MEOC Case No. 21028 (Comm. Dec. 7/10/92, Ex. Dec. 12/31/91); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell 95-0190 (Ct. App. 9/20/95); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, 93-0657 (Ct. App. 3/24/94); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison, 92 CV 3260 (Dane County Cir. Ct. 12/1/94).

The Commission upheld the Hearing Examiner's conclusion that the Respondent had retaliated against the Complainant as a result of its perception that the Complainant had opposed sexual harassment by one of the Respondent's supervisors. The Hearing Examiner determined that the fact that the Respondent was mistaken that the sexual harassment complaint came from the Complainant did not bar a finding of retaliation. The Court affirmed the Commission's decision, finding specifically that a claim of retaliation for "perceived" protected activity is encompassed by the ordinance. Dischler v. Boldt Construction, Inc., MEOC Case No. 21545 (Comm. Dec. 11/29/94, Ex. Dec. 7/11/94); Oscar Boldt Construction Company v. City of Madison et al. 94 CV 3781 (Dane County Cir. Ct. 5/11/95 oral dec. affirming Comm. Dec.).

Complainant filed a charge of discrimination based on sexual harassment and retaliation against the Respondent in his individual capacity. The hearing examiner granted Respondent's motion to dismiss as to sexual harassment finding that the ordinance employment section does not support claims against persons in their individual capacities. The hearing examiner denied the motion as to retaliation finding that the ordinance retaliation section was intended to cover individuals, as well as employer actions.

On appeal, the Dane County Circuit Court ruled that the ordinance retaliation section does not permit retaliation claims against individuals, keeping in line with interpretations of Wisconsin and federal employment statutes.

The Complainant also alleged emotional distress damages stemming from alleged acts of sexual harassment and retaliation, the hearing examiner found that the MEOO is not preempted by the Wisconsin Worker's Compensation Act's (WCA) exclusivity provision. Therefore, parties may seek remedy under either the WCA or the ordinance or both. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99). Hovde v. Equal Opportunities Commission of the City of Madison, 00 CV 0803 (Dane County Cir. Ct. 2/20/01).

The hearing examiner concluded that the ordinance worked in harmony with the state's Fair Employment Act (FEA) and did not interfere with or violate the letter or spirit of the FEA and should not be preempted by state law. Meeker v. Hovde Realty, Inc./James Hovde, MEOC Case No. 22034 (Ex. Dec. on jurisdiction 4/28/97, 8/10/99).

The Hearing Examiner found the Respondent liable for discharging the Complainant, a long term, high level executive, partly in retaliation for exercising rights protected by the ordinance when the Complainant complained to upper management about his supervisor's use of racist, sexist, and homophobic language. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

240.2 Standard of Proof

After hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the bases of her race, color and ancestry when it failed to hire her for a teaching position. The Hearing Examiner dismissed a claim of discrimination based upon the Complainant's sex and a claim that the Respondent had retaliated against the Complainant for her filing of an internal complaint of discrimination. The Hearing Examiner awarded the Complainant $25,860 in back pay and $25,000 compensatory damages for emotional distress, and costs and reasonable attorney's fees. The Commission reversed the Hearing Examiner and found that the Complainant had not proven her claim of discrimination and dismissed the complaint. Villarreal v. Madison Metropolitan School District, MEOC Case No. 21122 (Comm. Dec. 6/28/94, Ex. Dec. 12/27/93, Ex. Interim Dec. 1/22/93).

240.21 Prima Facie Case

An employee alleging that his discharge was retaliation established a prima facie case by showing that: (1) he filed a formal complaint with the MEOC; (2) he was discharged for activity directly related to pursuing that complaint; and (3) he had a good faith belief that his complaint was valid. Perez v. Kupfer Iron Wks., supra.

Complainant's retaliation claim, though somewhat supported inferentially by testimony in the record, did not overcome the Respondent's evidence that it dismissed the Complainant because of misconduct and poor performance rather than for any retaliatory motive. The Commission affirmed the Hearing Examiner's decision in its entirety. Stinson v. Bell Laboratory, MEOC Case No. 20762 (Comm. Dec. 12/14/89, Ex. Dec. 3/17/89).

The elements of a prima facie case of retaliation include showing that the matter complained of is within the subject matter of the Ordinance, that a complainant had reasonable grounds to complain that a complainant made complaints to appropriate Respondent personnel, and reason to believe the retaliatory action occurred as a result of the complaint. A complainant was retaliated against when he was terminated after complaining of racial comments and no grounds for termination existed. Flowers v. The Charlton Group, MEOC Case No. 20002129 (Ex. Dec. 9/17/02).

Employer suspended Complainant pursuant to allegations that Complainant had struck another worker and also violated a policy against eating in the food preparation area of a bakery facility. Because the Complainant's alleged misconduct was more severe than allegations he had previously raised against co-workers not of his race, Complainant was unable to show that he was similarly situated to the co-workers that Complainant cited in previous ancillary incidents. In addition, Respondent's investigation and suspension were proportional to those it had previously used with previous incidents of violence involving employees not of Complainant's race. Woods v. Sara Lee Bakery, MEOC Case No. 20042176 (Ex. Dec. 4/25/2006).

The Complainant (black/African-American) alleged that the Respondent suspended him and later terminated his employment on account of his race and color. The Hearing Examiner concluded that the Complainant failed to establish a nexus between his membership in a protected class and the adverse actions he suffered. In this regard, the Complainant primarily argued that, in the year following his termination, the Respondent hired a number of individuals outside of his protected class. The Hearing Examiner held that this fact, without more, cannot result in a finding that the Respondent's actions towards the Complainant were racially motivated. Rather, at most, the record supports finding that the Respondent's actions were symptomatic of a lapse in business judgment. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11, 2nd Ex. Dec. 11/30/11, Comm. Dec. 05/23/12).

240.22 Employer Knowledge of Oppositional Activity

240.23 Establishing a Causal Connection Between the Oppositional Activity and the Adverse Employment Action

. . . and a job applicant established the causal requirement that she was not hired as a result of her complaint activity by showing that the employer violated its own practices and rules in order to hire someone else. Lazar v. Madison Metro. Sch. Dist., MEOC Case No. 2472 (Comm. Dec. 6/26/81, Ex. Dec. 12/16/80).

240.3 Cases

An employer's refusal to hire a job applicant because of her pending complaint with the MEOC was retaliation even though refusal was based on the advice of the employer's attorney; . . . but having previously asked the applicant if she would drop her charge in exchange for full-time employment did not establish retaliation where the person who had asked was not involved in the applicant's subsequent rejection for the position. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/20/78).

Where a respondent made an unconditional offer to re-employ a Complainant, who had filed a discrimination claim that included a discriminatory discharge allegation and where the complainant accepted the respondent's offer in a reasonable time, the respondent's failure to then re-employ the complainant was unlawful retaliation. Whiteagle v. Badger Mechanical, No. 20133 (MEOC, 1/31/86).

An employer's rationale for rejecting a job applicant who had previously filed a discrimination complaint was a pretext for retaliation where the applicant showed that the person hired was less experienced, not properly licensed, and did not appear on the certified list of candidates. Lazar v. Madison Metro. Sch. Dist., supra.

Where an employee agreed to pay his co-worker one third of any monetary recovery in exchange for the co-worker's testimony which the employee believed to be truthful, his resulting discharge for allegedly attempting to bribe a witness was retaliation. Perez v. Kupfer Iron Wks., supra.

The Commission rejected the Complainant's various age discrimination claims, but initially ruled the Complainant had been retaliated against both during her employment and in regard to her discharge. She was awarded reinstatement and full back pay (among other remedies). Hilgers v. Laboratory Consulting, Inc., MEOC Case No. 20277 (Comm. Dec. 11/18/85, 11/10/86, 3/29/89, Ex. Dec. 4/11/85, 7/12/85) Laboratory Consulting, Inc., v. Hilgers and MEOC and City of Madison, 85CV 6300 (Dane County Cir. Ct. 8/20/86); Hilgers v. Laboratory Consulting, Inc. and MEOC, and Laboratory Consulting, Inc. v MEOC and City of Madison, 86 CV 6488 and 86 CV 6673 (Dane County Cir. Ct. 8/24/87); Hilgers v. Laboratory Consulting, Inc. and MEOC, and Laboratory Consulting, Inc. v MEOC and City of Madison, No. 87-2266 (Ct. App. 12/22/88).

The Hearing Examiner found the Respondent liable for discharging the Complainant, a long term, high level executive, partly in retaliation for exercising rights protected by the ordinance when the Complainant complained to upper management about his supervisor's use of racist, sexist, and homophobic language. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

240.9 Miscellaneous

250 Affirmative Action

An employer's alleged internal affirmative action goal of hiring a male applicant over a comparably qualified female applicant to balance its teaching staff was not justified where the employer could not show that the imbalance was the result of its past discrimination toward men. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/20/78).

260 Particular Employment Actions

260.1 Constructive Discharge

The Hearing Examiner concluded that the Complainant had voluntarily terminated her employment and that she had not been constructively terminated as a result of racial harassment. The Hearing Examiner found that the Complainant was dissatisfied with the unhealthy and uncooperative working environment and quit to be rid of sniping and bickering, rather than because of racial harassment. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

After having been passed over for promotion, Complainant—who believed she had been discriminated against based upon her congenital hip condition—eventually came into conflict with her manager. The manager repeatedly suggested that Complainant was using her disability for career advancement, of which she disapproved. Believing she could not continue working for Respondent, Complainant ultimately left her position with the company.

Complainant maintained that she was constructively terminated from her employment based upon her disability. Although her credibility was somewhat shaken by certain allegations that proved untrue, Complainant demonstrated that under the circumstances, her belief that she was constructively terminated was reasonable. The work environment created by her manager was sufficiently hostile that Complainant was forced to discharge herself. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

260.9 Miscellaneous


300 HOUSING DISCRIMINATION

310 Coverage, Exceptions

The Respondents were found to have discriminated against the Complainant, a lesbian, on the basis of sexual orientation in regard to housing when the Respondents withdrew their offer to rent a room in a shared house to the Complainant after determining that she was a lesbian. The Complainant was awarded $1,000.00 in punitive damages, $2,000.00 in emotional damages, $300 for loss of security deposit, and attorney's fees and costs. On appeal to the Commission, the Examiner's decision was vacated based on the fact that room-sharing decisions were not covered by the ordinance. Complainant appealed the Commission's decision to the Circuit Court, which determined that the Commission's decision was not supported by the clear and unambiguous language of the ordinance. The Court vacated the Commission's decision and remanded to the Commission for the Commission's consideration of the Respondent's appeal from the Hearing Examiner's decision. Sprague v. Rowe & Hacklander-Ready, MEOC Case No. 1462 (Comm. Dec. on attorney's fees 2/9/98, Comm. Dec. 7/10/92, 2/10/94, Ex. Dec. 12/27/91) State of Wisconsin ex rel. Caryl Sprague v. City of Madison et al. 93 CV 113 (Dane County Cir. Ct., 8/19/93, 9/30/94).

In a housing discrimination claim, the Complainant asserted the Respondent denied his housing application due to his conviction record in violation of the ordinance. MGO sec. 39.03 (4) et seq. The Hearing Examiner found that the Respondent violated the ordinance by conducting a regular criminal records search without first informing the Complainant; conducting a regular criminal records search without making a uniform record of the results of that search; and conducting a regular criminal records search without maintaining uniform written records of the search for two years. The Hearing Examiner also noted that the fact that the Respondent later presented a potentially legitimate reason not to rent to the Complainant did not insulate him from his discriminatory reasons for rejecting the Complainant's housing application. The Hearing Examiner awarded the Complainant $300.00 in economic damages and $4,000.00 in damages for emotional distress, embarrassment, humiliation and the loss of dignity resulting from the Respondent's violation of ordinance. Larry v. Peterson, MEOC Case No. 20051069 (Ex. Dec. 7/8/08, Ex. Dec. atty. fees 9/2/09 aff'd Comm. Dec. 3/23/10).

311 Who May File a Complaint

311.1 Covered Individuals Generally

311.2 Testers

311.9 Miscellaneous

312 Against Whom a Complaint May Be Filed

In a housing discrimination claim, the Complainant's request for damages against a third party, not under the control of the named Respondent, should have been filed against the appropriate third party. Terry v. YWCA Madison, MEOC Case No. 20051011 (Ex. Dec. 10/08/07; Ex. Dec. Costs & Fees 1/4/08; Comm. Dec. Final Order 9/19/08). See Commission Decision and Final Order in Terry, No. 20051011, wherein Commission ordered Respondent to pay Complainant $93.00 in costs pursuant to stipulation between parties, but agreed with Hearing Examiner's determination that no legal fees are appropriate based on Complainant's unsubstantiated claim for same and pro se status. (Comm. Dec. 9/19/08; Ex. Dec. Costs and Fees 1/4/08).

312.1 Generally

In a housing discrimination claim, the Complainant's request for damages against a third party, not under the control of the named Respondent, should have been filed against the appropriate third party. Terry v. YWCA Madison, MEOC Case No. 20051011 (Ex. Dec. 10/08/07; Ex. Dec. Costs & Fees 1/4/08; Comm. Dec. Final Order 9/19/08). See Commission Decision and Final Order in Terry, No. 20051011, wherein Commission ordered Respondent to pay Complainant $93.00 in costs pursuant to stipulation between parties, but agreed with Hearing Examiner's determination that no legal fees are appropriate based on Complainant's unsubstantiated claim for same and pro se status. (Comm. Dec. 9/19/08; Ex. Dec. Costs and Fees 1/4/08).

312.5 Respondent's Responsibility for Acts of Agents

312.9 Miscellaneous

320 Cases

320.1 Disability Discrimination

The Hearing Examiner concluded that the ordinance at the time did not extend its protection against housing discrimination on the basis of handicap/disability to require a housing provider to accommodate a tenant's alleged disability. Omachinski v. Seireg, MEOC Case No. 1395 (Ex. Dec. 5/2/89).

When Complainant applied for housing and was refused, Complainant claimed that it was because of his 5th grade level reading ability and his difficulty in writing. The hearing examiner concluded that Complainant's per se disability relating to his reading and writing difficulty was not the motive for refusing to lease to Complainant. Complainant's unfavorable references from previous landlords was the motive for refusing to rent to the Complainant and thus the hearing examiner concluded that the Complainant was not discriminated against. Gray v. Kennedy Heights, MEOC Case No. 1224 (Ex. Dec. 7/7/81).

320.2 Race Discrimination

The Respondent was found to have discriminated against the Complainant, a black male born in Nigeria, on the basis of race and national origin, with regard to housing. The Respondent indicated to the Complainant that a particular unit had been rented out and was no longer available, but showed that same unit to a number of white individuals and indicated it was still available. In addition, before finally agreeing to rent Complainant another unit, the Respondent asked two white renters whether they were willing to live with a black person.

During the Complainant's tenancy in housing owned by the Respondent, the Complainant and other tenants paid their rent late and their rent checks bounced. The Respondent accommodated white renters who paid their rent late but was unwilling to do the same for the Complainant. In addition, the Respondent wrote to Complainant's roommates and frequently called them regarding Complainant's late rental payments, but did not call or write to the roommates of white tenants when their rent was overdue. Ossia v. Rush, MEOC Case No. 1377 (Ex. Dec. 6/7/88).

The Hearing Examiner concluded that the Respondents had discriminated against the Complainants on the basis of their race but not their lawful source of income, when the Respondents' rental agent failed to notify the Complainants of the process used for applying for an apartment. The Hearing Examiner rejected the Respondents' contention that the Complainants were not qualified renters, finding that the Respondents' rental agent did not possess sufficient information to make such a determination when she apparently concluded that the Complainants could not afford the apartment. The Examiner awarded each Complainant $7,500 in emotional damages and ordered the Respondents to obtain Fair Housing training. The Examiner awarded the Complainants their reasonable actual attorney's fees and costs in the amount of $9,043.46. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

The Hearing Examiner determined that the Complainant had been discriminated against by the Respondent when the Respondent's manager failed or refused to offer him a room for the night at the Respondent's motel. The Respondent's manager did not recall the incident but the Complainant's testimony was fully corroborated by a companion. The Complainant was awarded $2,000 for emotional damages. The Commission affirmed the Hearing Examiner's determination of liability but reduced the damage award to $600, finding that the record did not support the $2,000 recommended by the Hearing Examiner. Steele v. Highlander Motor Inn et al., MEOC Case No. 3326 (Comm. Dec. 8/31/95, Ex. Dec. on liability 3/24/95, on attorney's fees 1/25/96).

Complainant alleged that he was discriminated against because of his race when Respondent, an agent of Complainant's landlord, used racial epithets against the Complainant after Complainant physically attacked Respondent after an argument. After the incident between the parties, Complainant was then evicted by the landlord. The hearing examiner determined that this was not a violation of the MEOO because Respondent's use of racial epithets and the eviction that later followed was a response to the physical attack that the Respondent was subjected to by the Complainant. Lewis v. Lewitzke, MEOC Case No. 1160 (Ex. Dec. 9/11/79).

320.3 Sex Discrimination; Marital Status Discrimination

Two males each were discriminated against on the basis of sex where they were treated differently than female rental prospects. The landowner told the complainants that she believed that couples (a male and a female) or women in general were cleaner than two or more males, and she engaged in other actions which discouraged the two males while she encouraged female prospects and ultimately rented to a female (and her son). Bahr, et al v. Hinken, MEOC Case Nos. 1306 and 1307 (Comm. Dec. 3/4/86, Ex. Dec. 11/8/85).

320.4 Sexual Orientation Discrimination

The Complainant failed to prevail on his claims of discrimination based on sexual orientation in regard to housing. The Complainant and two other males volunteered for the Fair Housing Council as rental housing testers, in an effort to gather information on discrimination in rental housing. The Complainant believed that he was treated differently from the heterosexual testers. The Hearing Examiner dismissed the complaint because the Complainant failed to prove the Respondent was aware of his sexual orientation. Lyne v. Dayton Pinckney Associates, et al., MEOC Case No. 1553 (Ex. Dec. 6/4/93).

The Respondents were found to have discriminated against the Complainant, a lesbian, on the basis of sexual orientation in regard to housing when the Respondents withdrew their offer to rent a room in a shared house to the Complainant after determining that she was a lesbian. The Complainant was awarded $1,000.00 in punitive damages, $2,000.00 in emotional damages, $300 for loss of security deposit, and attorney's fees and costs. On appeal to the Commission, the Examiner's decision was vacated based on the fact that room-sharing decisions were not covered by the ordinance. Complainant appealed the Commission's decision to the Circuit Court, which determined that the Commission's decision was not supported by the clear and unambiguous language of the ordinance. The Court vacated the Commission's decision and remanded to the Commission for the Commission's consideration of the Respondent's appeal from the Hearing Examiner's decision. Sprague v. Rowe & Hacklander-Ready, MEOC Case No. 1462 (Comm. Dec. on attorney's fees 2/9/98, Comm. Dec. 7/10/92, 2/10/94, Ex. Dec. 12/27/91) State of Wisconsin ex rel. Caryl Sprague v. City of Madison et al. 93 CV 113 (Dane County Cir. Ct., 8/19/93, 9/30/94).

320.9 Other Discrimination

Although the term "political beliefs" includes belief in tenant unionism, a landlord did not discriminate on that basis by refusing to re-rent to a tenant who participated in a then illegal rent strike.Northport Apts. v. MEOC (Carey), No. 80-CV-2680 (Dane County Cir. Ct., 3/12/81).

The Respondent was found to have discriminated against the Complainant, a black male born in Nigeria, on the basis of race and national origin, with regard to housing. The Respondent indicated to the Complainant that a particular unit had been rented out and was no longer available, but showed that same unit to a number of white individuals and indicated it was still available. In addition, before finally agreeing to rent Complainant another unit, the Respondent asked two white renters whether they were willing to live with a black person. During the Complainant's tenancy in housing owned by the Respondent, the Complainant and other tenants paid their rent late and their rent checks bounced. The Respondent accommodated white renters who paid their rent late but was unwilling to do the same for the Complainant. In addition, the Respondent wrote to Complainant's roommates and frequently called them regarding Complainant's late rental payments, but did not call or write to the roommates of white tenants when their rent was overdue. Ossia v. Rush, MEOC Case No. 1377 (Ex. Dec. 6/7/88).

In a housing discrimination claim, the Complainant asserted the Respondent denied his housing application due to his conviction record in violation of the ordinance. MGO sec. 39.03 (4) et seq. The Hearing Examiner found that the Respondent violated the ordinance by conducting a regular criminal records search without first informing the Complainant; conducting a regular criminal records search without making a uniform record of the results of that search; and conducting a regular criminal records search without maintaining uniform written records of the search for two years. The Hearing Examiner also noted that the fact that the Respondent later presented a potentially legitimate reason not to rent to the Complainant did not insulate him from his discriminatory reasons for rejecting the Complainant's housing application. The Hearing Examiner awarded the Complainant $300.00 in economic damages and $4,000.00 in damages for emotional distress, embarrassment, humiliation and the loss of dignity resulting from the Respondent's violation of ordinance. Larry v. Peterson, MEOC Case No. 20051069 (Ex. Dec. 7/8/08, Ex. Dec. atty. fees 9/2/09 aff'd Comm. Dec. 3/23/10).

The Complainant alleged that the Respondent discriminated against him on the basis of his conviction record when it rejected his application for Section 8 housing. The Respondent asserted that it was the Complainant's credit history and not his conviction record that prompted the denial of his application. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent knew about the Complainant's conviction record and that it acted upon that knowledge, at least in part, in denying his application for housing. As a result, the Hearing Examiner ordered the Respondent to pay the Complainant's emotional distress damages totaling $10,000 and to pay his costs and attorney's fees. Midstokke v. Southridge Village Apartments, MEOC Case No. 20071119 (Ex. Dec. 02/21/12, aff'd Comm. Dec. 08/13/12).

330 Testing

The Complainant failed to prevail on his claims of discrimination based on sexual orientation in regard to housing. The Complainant and two other males volunteered for the Fair Housing Council as rental housing testers, in an effort to gather information on discrimination in rental housing. The Complainant believed that he was treated differently from the heterosexual testers. The Hearing Examiner dismissed the complaint because the Complainant failed to prove the Respondent was aware of his sexual orientation. Lyne v. Dayton Pinckney Associates, et al., MEOC Case No. 1553 (Ex. Dec. 6/4/93).

340 Advertising

There is little doubt that the Respondent's job posting violates the prohibitions of Sec. 39.03(8)e Mad. Gen. Ord. in that it states a blanket prohibition from employment for any individual with a felony conviction in the last 7 years. By contrast, Sec. 39.03(8)(i)3b indicates that an employer may not consider a conviction record it if is more than 3 years old, and may consider a conviction record of less than 3 years if the conviction to be considered is substantially related to the duties of one's job. The Hearing Examiner proposes an order requiring the Respondent to cease and desist from publication of its illegal preference. The Hearing Examiner is sympathetic to the difficulty the Respondent faces in conforming its conduct including its advertising to the wide range of requirements that face a multi-state enterprise. However, there are many such employers subject to the jurisdiction of the Commission who manage to comply fully with the requirements of the ordinance. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

390 Miscellaneous


400 PUBLIC ACCOMMODATIONS

410 Coverage

Under federal public accommodations law, an establishment seeking an exemption as a private club must show, among other factors, that its membership admission process is selective. United States v. Trustees of the Fraternal Order of Eagles, 472 F. Supp. 1174 (E.D. Wis., 1979). Note: The Madison Ordinance references the Wisconsin public accommodations statute (sec. 942.04) which exempts bona fide private organizations. Merely being a private organization does not appear to be sufficient to meet the exemption.

The ordinance prohibitions against marital status and sexual orientation discrimination in regard to public accommodations were not intended to prohibit a membership organization (the YMCA) from denying family membership benefits to two lesbians living together as an (alternative) family with two children. Consequently, while one complainant and her two children were eligible for a family membership and a second complainant was eligible for a single membership, both complainants and the two children were not eligible for the same family membership where the respondent used a "tax code" definition to determine eligibility. Olson and Popp v. YMCA, MEOC Case No. 3110 (Comm. Dec. 10/10/85, Ex. Dec. 3/21/85).

The Respondent was found to have discriminated against the Complainant's child on the basis of disability, cerebral palsy, in regard to denial of admission to a place of public accommodation. The Respondent refused to provide care for the Complainant's child, alleging the child was below the estimated level of development given by the Complainant upon enrollment to day care. The Hearing Examiner found that day care was a public place of accommodation. Krasnick v. Solner, MEOC Case No. 3190 (Ex. Dec. 10/27/88 on evidence).

The Hearing Examiner found the Commission had jurisdiction over Complainant's claim since the baseball league was not selective as to who could participate and was therefore a public place of accommodation and within the jurisdiction of the ordinance. Further, a public place of accommodation is not limited to a physical space. Stubblefield v. Hewitt, Minor League Director & Little League Baseball, Inc., MEOC Case No. 3283 (Ex. Dec. 4/2/92).

The Complainant, a male, filed a discrimination complaint based on a denial of enrollment to a Chimera Self-Defense program because of his sex. Chimera is a self-defense program offered through the Rape Crisis Center that is exclusively open to females. On Respondent's Motion to Dismiss, the Hearing Examiner found that Respondent is a public place of accommodation, not a "private, nonprofit" organization, because of the non-selective screening process, public advertisement and public accessibility. The Commission upheld the Hearing Examiner's decision without discussion. The Circuit Court affirmed the Commission's decision, finding that the Respondent's contention that it was exempt as a private organization would lead to the absurd result of exempting all "private nonprofit" organizations. Schultz v. Rape Crisis Center - Chimera Self-Defense, MEOC Case No. 3200 (Comm. Dec. 1/9/92, Ex. Dec. 8/1/91, on remand 10/6/94) Rape Crisis Center, Inc. v. City of Madison, MEOC and Schultz, 92 CV 648 (Dane County Cir. Ct. 8/19/92).

The Complainant filed a complaint on behalf of her daughter alleging discrimination in the provision of a place of public accommodation or amusement on the basis of sex. The complaint alleges that she was harassed and assaulted by two male students on her school bus, and the bus driver neither assisted her nor took steps to assure her equal enjoyment of a public place of accommodation or amusement. On Respondents motion to dismiss, the Hearing Examiner concluded that the Commission is without jurisdiction based upon the fact that a private contractual bus service cannot be said to operate as a place of public accommodation or amusement. The private bus service offered by the Respondent lacked the characteristics of a public place of accommodation because its service was geographically limited as well as limited to specific students on the bus route. Williams v. Madison Metropolitan School District and Verona Bus Service Inc., MEOC Case No. 3303 (Ex. Dec. 8/26/92).

The Examiner determined the Respondent not to be a public place of accommodation because the Respondent bases its decisions on issuance of insurance upon actuarial standards relating to risk factors and not on membership in a protected class per se. Further, discrimination in the issuance of insurance is regulated by the Office of the Commissioner on Insurance. The Commission upheld the Hearing Examiner's decision. Hieb v. American Standard, MEOC Case No. 3255 (Comm. Dec. 12/3/92, Ex. Dec. 3/11/92).

The Respondent filed a Motion to Dismiss the complaint arguing that the issues presented by the complaint had been previously decided in Olson and Popp v. YMCA, MEOC Case No. 3110 (Comm. Dec. 10/10/85, Ex. Dec. 3/21/85) which held that a lesbian couple could not bring a complaint for marital status and sexual orientation discrimination against a public accommodation for denial of a family membership where the Respondent used the definition of "family" found in the U.S. Tax Code. The Hearing Examiner decided that the allegation of marital status discrimination was barred by the Olson and Popp decision but that the allegations of sexual orientation discrimination were sufficiently different from those in Olson and Popp to permit the Complainant to pursue her complaint. Petzold v. Princeton Club, MEOC Case No. 3252 (Ex. Dec. 2/15/94 and 5/10/94).

The Complainant alleged that the Respondent discriminated against him on the basis of his political beliefs and sex in housing, employment, public accommodations and in the provision of City services or facilities. Specifically, the Complainant claimed he was discriminated against because Respondent's board of directors was all female or considered feminist. The hearing examiner found that service on Respondent's board of directors was not a public place of accommodation or amusement because the Respondent has highly selective criteria for selecting a director. In addition, there was no evidence that Complainant had standing because there was no indication in the record that he applied for a director position.

The Complainant further alleged that the Commission had jurisdiction to enforce the non-discrimination provisions of a City of Madison contract for the provision of service with the Respondent in the area of domestic prevention and intervention. The hearing examiner found no support in the ordinance for such jurisdiction and indicated that such was a matter that should be taken up before the Common Council or with the Community Services Commission.

The hearing examiner did not address the allegation of housing discrimination as that matter was pending in the Dane County Circuit Court.

The Complainant also alleged a violation of the City facility and Services portion of the ordinance. The hearing examiner found that the Complainant had failed to established standing for the alleged violation because Complainant never requested the services that were the subject of the City facilities and services.

The Complainant also contended that he was discriminated against when he was not allowed to work as a volunteer on Respondent's crisis line because of his sex. The hearing examiner determined that the ordinance does not cover volunteer positions because there is no exchange of compensation as in an employer-employee situation.

The Complainant also alleged discrimination in advertisement when the Respondent identified itself as a feminist organization on its recruitment advertising. The hearing examiner found that this was not a violation of the ordinance because it was a mechanism for the Respondent to identify itself, not to prevent non-feminists from applying for positions within the Respondent's organization. On appeal, the Commission agreed with the hearing examiner's decision. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. 8/20/99, Ex. Dec. 3/26/99).

The Complainant filed charges against Respondent for alleged discrimination because of her handicap/disability when one of Respondent's members failed to provide her a ride as provided by the Respondent's program. Respondent claimed that the Commission did not have jurisdiction, because it was an umbrella organization and did not directly provide the services and only its members did.

The hearing examiner found that the Commission did have jurisdiction because the actual service of providing rides to the public from taverns is considered a public place of accommodation or amusement because it is provided without qualification other than a person's status as a driver and being impaired by alcohol. Additionally, the hearing examiner found that the members of Respondent's organization acted as agents for the Respondent in the provision of this service. Jones v. Safe Rider Program, MEOC Case No. 19983045 (Ex. Dec. 4/6/99).

In order for an organization to be exempt from the ordinance's regulating public places of accommodation or amusement it must be a bona fide, private, nonprofit organization. The hearing examiner concluded that the Respondent was not exempt because Respondent did not exercise a high degree of selectivity in providing its services, even though it may have been highly selective with respect to its membership. Moreover, despite the exclusion of males from Respondent's services the Respondent was deemed to be a public place because it held its services open to the public without significant limitation. Schenk v. Women's Transit Authority, MEOC Case No. 3377 (Comm. Dec. 8/9/01, 2nd Ex. Dec. 1/26/01), dismissed on procedural grounds, No. 01-CV-2439 (Dane County Cir. Ct., 6/10/02).

A cease and desist order is appropriate when a place of public accommodation or amusement denies someone service on the basis of sex but that person does not suffer economic or emotional injury. Complainant was denied a ride on the basis of sex and was discriminated against by Respondent, but did not seek any other mode of transportation. Schenk v. Women's Transit Authority, MEOC Case No. 3377 (Comm. Dec. 8/9/01, 2nd Ex. Dec. 1/26/01), dismissed on procedural grounds, No. 01-CV-2439 (Dane County Cir. Ct., 6/10/02).

Complainant alleged that Respondent discriminated against it because of its political beliefs when Respondent refused to publish a specific advertisement for Complainant. Respondent moved for dismissal claiming that a newspaper is not a public place of accommodation. The hearing examiner concluded that how a newspaper is marketed is one of the primary factors in deciding whether a newspaper is a public place of accommodation or amusement, along with examining each paper on a case by case basis. Painters Union Local 802 v. Madison Newspapers, Inc., MEOC Case No. 3165 (Ex. Dec. 5/23/87) See Madison Newspapers, Inc. V. EOC, City of Madison, et al.

A cease and desist order is appropriate when a place of public accommodation or amusement denies someone service on the basis of sex but that person does not suffer economic injury. Complainants must establish a connection between actual emotional distress and the denial of service in order to show emotional injury. Emotional injury that directly springs from a denial service must be distinguished from a long standing animosity towards a group designed to benefit from that service. Complainant was denied a ride on the basis of sex and was discriminated against by Respondent, but did not seek any other mode of transportation. Rathmann v. Women's Transit Authority, MEOC Case No. 3391 (Comm. Dec. 8/9/01, 2nd Ex. Dec. 1/26/01), dismissed on procedural grounds, No. 01-CV-2439 (Dane County Cir. Ct., 6/10/02).

When a Respondent's facially-neutral policy is not applied to a member of one race while being applied equally to all other races, a claim will not stand. The failure to apply the policy does not create a hostile environment in a place of public accommodation or amusement. The Complainant was asked to remove his hat while a patron of another race was not asked to remove his hat. Lewis v. Delaney's Charcoal Steaks, MEOC Case No. 19993093 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01).

Patrons of one race who claim discrimination by association with someone of another race and who did not suffer racially-motivated derogatory actions do not have a valid claim of discrimination. Complainants were with someone who was asked to remove his hat while a patron of another race was not asked to remove his hat. Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993110 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993111 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993118 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Hahn v. Delaney's Charcoal Steaks, MEOC Case No. 19993099 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Berning v. Delaney's Charcoal Steaks, MEOC Case No. 19993102 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Berning v. Delaney's Charcoal Steaks, MEOC Case No. 19993104 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01); Berning v. Delaney's Charcoal Steaks, MEOC Case No. 19993103 (Comm. Dec. 1/18/02, Ex. Dec. 2/1/01).

Being informed of alleged discrimination after the fact to someone else does not constitute the level of involvement necessary for a claim of discrimination. Complainant was told hours later of an incident that Complainant was not physically present at and did not suffer any deprivation or differing treatment from Respondent. Berning Lewis v. Delaney's Charcoal Steaks, MEOC Case No. 19993100 (Ex. Dec. 2/1/01).

Protection against sexual harassment is inferred from the Madison Equal Opportunities Ordinance's requirement not to discriminate in terms and conditions of employment, housing, or enjoyment of a public place. The fact that sexual harassment does not specifically appear in MGO Sec. 3.23(5) does not mean the Commission has no jurisdiction over sexual harassment claims brought under the ordinance. Lions v. Capital Fitness, MEOC Case No. 20003060 (Ex. Dec. 5/22/01).

An operator of a public place of accommodation may not raise a defense of denying entry based on the belief that an individual is violating a city ordinance if the ordinance gives the operator no power to enforce it or will suffer no penalty as a result. Respondents denied entry to a service dog on the basis that they believed the dog violated a Madison ordinance designed to prohibit dog owners from bringing dogs to specific Madison parks. Hafner v. Last Coast Producing Corp. et. al., MEOC Case No. 20003184 (Ex. Dec. 1/14/02).

After seeing advertisements soliciting volunteer drivers for transportation services for women, Complainant brought an action against the transportation service provider, claiming the organization had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication promoting discriminatory public services. The Complainant argued that the organization was discriminating against men. The organization moved to dismiss the complaint, claiming its advertisements were constitutionally protected speech.

Whether the advertisements represented commercial speech was the main issue. Commercial speech would receive some First Amendment protection; noncommercial speech would receive full First Amendment protection. The Equal Opportunities Commission did not have any authority to regulate noncommercial speech.

The Hearing Examiner determined that the advertisements were noncommercial because they neither proposed nor encouraged economic transaction. Because the organization was seeking volunteer drivers for free transportation services, its advertisements were fully protected under the First Amendment. Consequently, the Hearing Examiner dismissed the complaint. The Complainant appealed to the Commission, and the Commission adopted the Hearing Examiner's decision in its entirety. Rathmann v. Women's Transit Authority, MEOC Case No. 20013061 (Ex. Dec. 10/17/2003, Comm. Dec. 2/26/2004).

After seeing advertisements soliciting volunteer drivers for rape-prevention ride services, Complainants brought identical actions against the organization that provided the services, claiming the organization had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The Complainants argued that the organization was discriminating against men. The organization moved to dismiss the complaint, claiming its advertisements were constitutionally protected speech.

Whether the advertisements represented commercial speech was the main issue. Commercial speech would receive some First Amendment protection; noncommercial speech would receive full First Amendment protection. The Equal Opportunities Commission did not have any authority to regulate noncommercial speech.

The Hearing Examiner determined that the advertisements were noncommercial because they neither proposed nor encouraged economic transaction. Because the organization was seeking volunteer drivers for free transportation services, its advertisements were fully protected under the First Amendment. Consequently, the Hearing Examiner dismissed the complaints. Goodman v. Women's Transit Authority, MEOC Case No. 20013059 (Ex. Dec. 10/17/2003); Rathmann v. Women's Transit Authority, MEOC Case No. 20013061 (Ex. Dec. 10/17/2003); Perry v. Women's Transit Authority, MEOC Case No. 20013068 (Ex. Dec. 10/17/2003).

After seeing advertisements for allegedly discriminatory services, Complainants brought identical actions against the newspaper that published the advertisements, claiming the paper had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The advertisements fell into two categories: those promoting self-defense courses for women, and those soliciting volunteer drivers for transportation services catering to women. The Complainants argued that men were being discriminated against.

The Hearing Examiner ruled that because the advertisements soliciting volunteer drivers neither proposed nor encouraged commercial activity, they represented noncommercial speech and were fully protected under the First Amendment. Allegations concerning these advertisements were therefore dismissed. The self-defense program and the related advertisements were more problematic because program participants usually paid tuition. Ultimately, the Hearing Examiner could not determine whether the program indeed represented "commercial" activity. Consequently, via Interim Decision and Order on Jurisdiction, the Hearing Examiner sought additional evidence from the parties.

The newspaper demonstrated that the self-defense program was nonprofit and noncommercial. Tuition payments partially defrayed costs associated with the program, but mainly discouraged participants from withdrawing early, before completing the program. Costs were consistently greater than total program revenues, and the program was clearly not intended for profit. Because the program was noncommercial, the related advertisements represented noncommercial speech and were protected under the First Amendment. With his Final Decision and Order on Jurisdiction, the Hearing Examiner dismissed all remaining allegations against the newspaper. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003, Ex. Dec. 1/12/2004); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 1/12/2003, Ex. Dec. 10/17/2003).

After seeing advertisements for allegedly discriminatory services, Complainants brought identical actions against the newspaper that published the advertisements, claiming the paper had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The advertisements fell into two categories: those promoting self-defense courses for women, and those soliciting volunteer drivers for transportation services catering to women. The Complainants argued that men were clearly being discriminated against. The newspaper moved to dismiss the complaint, asserting that the Equal Opportunities Commission lacked jurisdiction because the Hearing Examiner could not judge the constitutionality of the Equal Opportunities Ordinance, which was arguably coming into conflict with the First Amendment.

The main question was whether the advertisements represented commercial speech, meaning they would not receive full First Amendment protection. The Hearing Examiner ruled that because the advertisements soliciting volunteer drivers did not contemplate commercial activity, they were protected under the First Amendment and beyond the reach of the Equal Opportunities Commission. The self-defense courses and the related advertisements were more problematic because participants usually paid for the courses. Ultimately, the Hearing Examiner could not discern from the record whether this activity, which seemed commercial, was indeed commercial. Because it was unclear whether the self-defense courses were intended for profit, the Hearing Examiner, via Interim Decision and Order on Jurisdiction, sought additional evidence. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003, Ex. Dec. 1/12/2004); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 1/12/2003, Ex. Dec. 10/17/2003).

After having been ejected from tavern, allegedly because the bartender disapproved of his service animal, patron filed discrimination complaint alleging that the Respondent had violated the Equal Opportunities Ordinance, MGO Sections 3.23(5) and 3.23(6), which protect against disability discrimination within places of public accommodation. The Respondent moved for dismissal, arguing that the Equal Opportunities Commission lacked jurisdiction over the complaint because MGO Section 7.08(6)(o), which establishes sanitation requirements for taverns, unambiguously states that animals are prohibited within taverns, except guide dogs accompanying blind persons. This particular patron was not blind. Essentially, the Respondent wanted the seeing-eye dog limitation read into the Equal Opportunities Ordinance.

The Hearing Examiner determined that this narrow reading would eviscerate certain broad protections afforded disabled individuals under the Ordinance, which does not distinguish between seeing-eye dogs and other service animals. In reaching his decision, the Hearing Examiner also considered other factors: the Ordinance had been adopted more recently than the tavern sanitation provision, and served the much broader social purpose of protecting against discrimination. In contrast, the tavern sanitation rule served the narrow purpose of regulating food storage and service. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07)).

In denying Complainant's attempt to be admitted with his dog and served at Respondent's bar, a place of public accommodation, Respondent denied him a reasonable accommodation for his mental and emotional disabilities. The Hearing Examiner found that while the dog is not a service animal, it qualifies as a reasonable accommodation under the ordinance since Complainant demonstrated that the dog had received training and was generally obedient, and that the dog's presence benefited Complainant in a way that ameliorated his disabilities. Respondent did not show that admitting the dog would change the nature of its business or present a danger. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07)).

In response to the Respondent's motion to dismiss for lack of subject jurisdiction, the Hearing Examiner ruled that the ordinance's prohibition of discrimination in public places of accommodation and amusement covered not only a total denial of service, but extended to less favorable treatment claims. Thompson v. Burlington Coat Factory, MEOC Case No. 20053210 (Ex. Dec. 9/11/06).

The Complainant is disabled and has two service dogs to assist him. The Complainant and his dogs visited the Respondent's facility regularly for medical services. One of the Respondent's employees was attacked and severely injured by a wolf hybrid dog prior to her employment with the Respondent, and consequently suffers emotional stress from this incident. On several occasions, the Complainant's dogs and the Respondent's employee came into brief contact; the employee experienced a post traumatic flashback. Respondent then required the Complainant and his dogs to use a specific entrance to ensure they would not encounter the employee. The Complainant complained that this access arrangement discriminated against him in a public place of accommodation on the basis of his disability. The Hearing Examiner determined that the Respondent did not discriminate against the Complainant in violation of the ordinance and held that the Respondent's limited access to its building was a reasonable accommodation and did not limit the Complainant's full and equal enjoyment of the Respondent's goods, service and facilities. Nichols v. Mental Health Center of Dane County, Inc., MEOC Case No. 20053154 (Ex. Dec. 8/6/09, aff'd Comm. Dec. 4/14/10).

420 Cases

A school violated the public accommodations law when a band it sponsored refused admission to a female applicant because of her sex. Ulsrud v. MATC, MEOC Case No. 3038 (Comm. Dec. 1/18/77, Ex. Dec. 9/9/76).

The Respondent, a tavern, was found to have discriminated against the Complainant on the basis of his race in public accommodations. After the Complainant, a black male, had purchased several drinks for other black patrons of Respondent, he was not allowed to purchase a drink for himself and was spoken to in racially derogatory terms by a bartender. Allison v. Golden Pheasant, MEOC Case No. 3196 (Ex. Dec. 12/30/88).

The Hearing Examiner determined that "Ladies' Night" promotions violate the ordinance's prohibition against discrimination on the basis of sex in the provision of a public place of accommodation or amusement. The Examiner found that the Respondent's offer to women of two drinks for the price of one, while men paid the full price, constituted payment of a higher price by men. The Examiner awarded the Complainant $50 for his emotional injury stemming from the act of discrimination. Wilker v. Bermuda's Night Club, MEOC Case No. 3221 (Ex. Dec. 7/10/89).

The Hearing Examiner determined that a bartender's calling a patron "white boy" and ordering him from the premises represented discrimination on the basis of race in provision of a public place of accommodation or amusement. The Hearing Examiner awarded the Complainant $1,000 in compensatory damages for embarrassment and humiliation along with his costs and attorney's fees. The Commission upheld the finding of discrimination but reduced the damage award to $750. The Commission found that the Complainant's return to the bar on several occasions showed that the lower amount was appropriate to the actual level of embarrassment suffered by the complainant. Meyer v. Purlie's Cafe South, MEOC Case No. 3282 (Comm. Dec. 10/5/94, Ex. Dec. 4/6/94 on attorney's fees: Ex. Dec. 3/20/95).

The Hearing Examiner determined that the Complainant had been discriminated against by the Respondent when the Respondent's manager failed or refused to offer him a room for the night at the Respondent's motel. The Respondent's manager did not recall the incident but the Complainant's testimony was fully corroborated by a companion. The Complainant was awarded $2,000 for emotional damages. The Commission affirmed the Hearing Examiner's determination of liability but reduced the damage award to $600, finding that the record did not support the $2,000 recommended by the Hearing Examiner. Steele v. Highlander Motor Inn et al., MEOC Case No. 3326 (Comm. Dec. 8/31/95, Ex. Dec. on liability 3/24/95, on attorney's fees 1/25/96).

The Hearing Examiner concluded that there had been a misunderstanding between the parties rather than a discriminatory refusal of service and therefore the complaint must be dismissed. The Complainant, an African-American, was assisting his friend in negotiations to purchase a car. The negotiations became heated and both the Complainant and Respondent's sales manager used hostile and threatening, though non-racial, language. The Respondent asked the Complainant and his friend to leave the premises in order to avoid further physical confrontation. Hackett v. Russ Darrow, MEOC Case No. 3356 (Ex. Dec. 8/5/97).

In response to the Respondent's motion to dismiss for lack of subject jurisdiction, the Hearing Examiner ruled that the ordinance's prohibition of discrimination in public places of accommodation and amusement covered not only a total denial of service, but extended to less favorable treatment claims. Thompson v. Burlington Coat Factory, MEOC Case No. 20053210 (Ex. Dec. 9/11/06).

The Complainant, an African American, walks with a pronounced limp.  He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises.  After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability.  The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

The Complainant is disabled and has two service dogs to assist him. The Complainant and his dogs visited the Respondent's facility regularly for medical services. One of the Respondent's employees was attacked and severely injured by a wolf hybrid dog prior to her employment with the Respondent, and consequently suffers emotional stress from this incident. On several occasions, the Complainant's dogs and the Respondent's employee came into brief contact; the employee experienced a post traumatic flashback. Respondent then required the Complainant and his dogs to use a specific entrance to ensure they would not encounter the employee. The Complainant complained that this access arrangement discriminated against him in a public place of accommodation on the basis of his disability. The Hearing Examiner determined that the Respondent did not discriminate against the Complainant in violation of the ordinance and held that the Respondent's limited access to its building was a reasonable accommodation and did not limit the Complainant's full and equal enjoyment of the Respondent's goods, service and facilities. Nichols v. Mental Health Center of Dane County, Inc., MEOC Case No. 20053154 (Ex. Dec. 8/6/09, aff'd Comm. Dec. 4/14/10).

Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when it required the Complainants to obtain their food via the restaurant's drive-thru, while serving white patrons inside the establishment. The Respondent failed to respond to the Notice of Hearing and, as a result, the Hearing Examiner entered a default judgment in favor of the Complainants. Nor did the Respondent appear at a hearing to determine the Complainants' damages. As to the issue of damages, the Hearing Examiner held that the Complainants' testimony regarding their emotional distress was sufficiently compelling to justify an aggregate award of $20,000. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages and attorney's fees, although the Hearing Examiner expressed doubt as to the propriety of the amount of said attorney's fees.Briggs v. Popeyes Chicken & Biscuits Restaurant, MEOC Case Nos. 20083073, 20083074 (Ex. Dec. 3/19/10).

Complainants allege that the Respondent discriminated against them on the basis of their race (African-American) in the provision of a public place of accommodation or amusement. Subsequent to an Initial Determination of Probable Cause, the Hearing Examiner issued a Notice of Hearing and Scheduling Order on December 14, 2009. The Notice of Hearing required the Respondent to provide an answer within 10 days of its receipt. The Respondent did not file an answer to the Notice of Hearing until May 11, 2010. On January 11, 2010, the Complainants filed a motion seeking a default judgment for the Respondent's failure to timely answer the Notice of Hearing. On May 24, 2010, the Hearing Examiner held a hearing on the Complainant's motion. The Hearing Examiner was not persuaded by the Respondent's assertion that it did not receive the Notice of Hearing. The Hearing Examiner held that the inquiry ends once there is evidence that a notice was received at the last known address provided by the parties. Nevertheless, the Hearing Examiner found that an entry of default judgment was not supported by the record. In lieu of a default judgment, the Hearing Examiner granted the Complainants additional time to conduct discovery; and ordered the Respondent to pay the Complainants' reasonable costs and fees including a reasonable attorney's fee for the time expended in bringing and pursuing their motion. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011).

The Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when its taxi driver dropped them off short of their destination. The Complainants asserted that the Respondent's taxi driver, who is white and Caucasian, exhibited an irrational fear that the Complainants would harm him due to the stereotype that black, African American men are prone to violence. The Respondent maintained that its driver simply followed its curb-to-curb policy regarding drop-offs and that, given the Complainants' complete silence during the ride, its driver was justified in fearing for his safety. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent's proffered, non-discriminatory reasons for its driver's actions were not credible and a pretext for racial discrimination. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages totaling $35,000 and to pay their costs and attorney's fees. The Hearing Examiner also issued sanctions for the Respondent's failure to timely file an answer to the Notice of Hearing.Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012).

The Complainant, a black, African-American male, was denied the opportunity to rent a truck and was told to leave the Respondent's store after a dispute with the Respondent's acting manager. Testers, not of the Complainant's race and color, helped demonstrate that the Respondent's actions were likely motivated by the Complainant's race and color. The Hearing Examiner awarded the Complainant $15,000.00 in damages for emotional distress based, in part, on the testimony of a treating physician. The Respondent was also ordered to pay the Complainant's costs and fees including a reasonable attorney's fee. Jackson v. UHAUL, MEOC Case No. 20093107 (Ex. Dec. 02/08/12)

490 Miscellaneous

Where an employee referred to a customer in a racially derogatory manner and refused to serve him, the customer was entitled to a cease and desist order regarding such conduct in the future. Peterson v. Fisca Oil, MEOC Case No. 3040 (Ex. Dec. 8/22/78).

An owner's abusive racial remarks toward a customer were discriminatory, but the remedy was limited to a cease and desist order where the customer had precipitated the argument. Joe v. Sunny Knoll Liquor, MEOC Case No. 3070 (Ex. Dec. 9/18/81).

After seeing advertisements soliciting volunteer drivers for transportation services for women, Complainant brought an action against the transportation service provider, claiming the organization had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication promoting discriminatory public services. The Complainant argued that the organization was discriminating against men. The organization moved to dismiss the complaint, claiming its advertisements were constitutionally protected speech.

Whether the advertisements represented commercial speech was the main issue. Commercial speech would receive some First Amendment protection; noncommercial speech would receive full First Amendment protection. The Equal Opportunities Commission did not have any authority to regulate noncommercial speech.

The Hearing Examiner determined that the advertisements were noncommercial because they neither proposed nor encouraged economic transaction. Because the organization was seeking volunteer drivers for free transportation services, its advertisements were fully protected under the First Amendment. Consequently, the Hearing Examiner dismissed the complaint. The Complainant appealed to the Commission, and the Commission adopted the Hearing Examiner's decision in its entirety. Rathmann v. Women's Transit Authority, MEOC Case No. 20013061 (Ex. Dec. 10/17/2003, Comm. Dec. 2/26/2004).

After seeing advertisements soliciting volunteer drivers for rape-prevention ride services, Complainants brought identical actions against the organization that provided the services, claiming the organization had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The Complainants argued that the organization was discriminating against men. The organization moved to dismiss the complaint, claiming its advertisements were constitutionally protected speech.

Whether the advertisements represented commercial speech was the main issue. Commercial speech would receive some First Amendment protection; noncommercial speech would receive full First Amendment protection. The Equal Opportunities Commission did not have any authority to regulate noncommercial speech.

The Hearing Examiner determined that the advertisements were noncommercial because they neither proposed nor encouraged economic transaction. Because the organization was seeking volunteer drivers for free transportation services, its advertisements were fully protected under the First Amendment. Consequently, the Hearing Examiner dismissed the complaints. Goodman v. Women's Transit Authority, MEOC Case No. 20013059 (Ex. Dec. 10/17/2003); Rathmann v. Women's Transit Authority, MEOC Case No. 20013061 (Ex. Dec. 10/17/2003); Perry v. Women's Transit Authority, MEOC Case No. 20013068 (Ex. Dec. 10/17/2003).

After seeing advertisements for allegedly discriminatory services, Complainants brought identical actions against the newspaper that published the advertisements, claiming the paper had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The advertisements fell into two categories: those promoting self-defense courses for women, and those soliciting volunteer drivers for transportation services catering to women. The Complainants argued that men were being discriminated against.

The Hearing Examiner ruled that because the advertisements soliciting volunteer drivers neither proposed nor encouraged commercial activity, they represented noncommercial speech and were fully protected under the First Amendment. Allegations concerning these advertisements were therefore dismissed. The self-defense program and the related advertisements were more problematic because program participants usually paid tuition. Ultimately, the Hearing Examiner could not determine whether the program indeed represented "commercial" activity. Consequently, via Interim Decision and Order on Jurisdiction, the Hearing Examiner sought additional evidence from the parties.

The newspaper demonstrated that the self-defense program was nonprofit and noncommercial. Tuition payments partially defrayed costs associated with the program, but mainly discouraged participants from withdrawing early, before completing the program. Costs were consistently greater than total program revenues, and the program was clearly not intended for profit. Because the program was noncommercial, the related advertisements represented noncommercial speech and were protected under the First Amendment. With his Final Decision and Order on Jurisdiction, the Hearing Examiner dismissed all remaining allegations against the newspaper. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003, Ex. Dec. 1/9/2004); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 1/12/2003, Ex. Dec. 10/17/2003).

After seeing advertisements for allegedly discriminatory services, Complainants brought identical actions against the newspaper that published the advertisements, claiming the paper had violated the Equal Opportunities Ordinance, which prohibits the publication of any written communication indicating that certain persons will be unlawfully discriminated against within places of public accommodation. The advertisements fell into two categories: those promoting self-defense courses for women, and those soliciting volunteer drivers for transportation services catering to women. The Complainants argued that men were clearly being discriminated against. The newspaper moved to dismiss the complaint, asserting that the Equal Opportunities Commission lacked jurisdiction because the Hearing Examiner could not judge the constitutionality of the Equal Opportunities Ordinance, which was arguably coming into conflict with the First Amendment.

The main question was whether the advertisements represented commercial speech, meaning they would not receive full First Amendment protection. The Hearing Examiner ruled that because the advertisements soliciting volunteer drivers did not contemplate commercial activity, they were protected under the First Amendment and beyond the reach of the Equal Opportunities Commission. The self-defense courses and the related advertisements were more problematic because participants usually paid for the courses. Ultimately, the Hearing Examiner could not discern from the record whether this activity, which seemed commercial, was indeed commercial. Because it was unclear whether the self-defense courses were intended for profit, the Hearing Examiner, via Interim Decision and Order on Jurisdiction, sought additional evidence. Goodman v. Isthmus Publishing Company, Inc., MEOC Case No. 20013060 (Ex. Dec. 10/17/2003); Perry v. Isthmus Publishing Company, Inc., MEOC Case No. 20013067 (Ex. Dec. 10/17/2003).

After having been ejected from tavern, allegedly because the bartender disapproved of his service animal, patron filed discrimination complaint alleging that the Respondent had violated the Equal Opportunities Ordinance, MGO Sections 3.23(5) and 3.23(6), which protect against disability discrimination within places of public accommodation. The Respondent moved for dismissal, arguing that the Equal Opportunities Commission lacked jurisdiction over the complaint because MGO Section 7.08(6)(o), which establishes sanitation requirements for taverns, unambiguously states that animals are prohibited within taverns, except guide dogs accompanying blind persons. This particular patron was not blind. Essentially, the Respondent wanted the seeing-eye dog limitation read into the Equal Opportunities Ordinance.

The Hearing Examiner determined that this narrow reading would eviscerate certain broad protections afforded disabled individuals under the Ordinance, which does not distinguish between seeing-eye dogs and other service animals. In reaching his decision, the Hearing Examiner also considered other factors: the Ordinance had been adopted more recently than the tavern sanitation provision, and served the much broader social purpose of protecting against discrimination. In contrast, the tavern sanitation rule served the narrow purpose of regulating food storage and service. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07)).

The Complainant, an African American, walks with a pronounced limp.  He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises.  After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability.  The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

The Complainant is disabled and has two service dogs to assist him. The Complainant and his dogs visited the Respondent's facility regularly for medical services. One of the Respondent's employees was attacked and severely injured by a wolf hybrid dog prior to her employment with the Respondent, and consequently suffers emotional stress from this incident. On several occasions, the Complainant's dogs and the Respondent's employee came into brief contact; the employee experienced a post traumatic flashback. Respondent then required the Complainant and his dogs to use a specific entrance to ensure they would not encounter the employee. The Complainant complained that this access arrangement discriminated against him in a public place of accommodation on the basis of his disability. The Hearing Examiner determined that the Respondent did not discriminate against the Complainant in violation of the ordinance and held that the Respondent's limited access to its building was a reasonable accommodation and did not limit the Complainant's full and equal enjoyment of the Respondent's goods, service and facilities. Nichols v. Mental Health Center of Dane County, Inc., MEOC Case No. 20053154 (Ex. Dec. 8/6/09, aff'd Comm. Dec. 4/14/10).


500 OTHER COVERED ACTIVITIES

510 Discrimination in the Provision of Credit

520 Discrimination in Access to City Facilities

The Complainant alleged that the Respondent discriminated against him on the basis of his political beliefs and sex in housing, employment, public accommodations and in the provision of City services or facilities. Specifically, the Complainant claimed he was discriminated against because Respondent's board of directors was all female or considered feminist. The hearing examiner found that service on Respondent's board of directors was not a public place of accommodation or amusement because the Respondent has highly selective criteria for selecting a director. In addition, there was no evidence that Complainant had standing because there was no indication in the record that he applied for a director position.

The Complainant further alleged that the Commission had jurisdiction to enforce the non-discrimination provisions of a City of Madison contract for the provision of service with the Respondent in the area of domestic prevention and intervention. The hearing examiner found no support in the ordinance for such jurisdiction and indicated that such was a matter that should be taken up before the Common Council or with the Community Services Commission.

The hearing examiner did not address the allegation of housing discrimination as that matter was pending in the Dane County Circuit Court.

The Complainant also alleged a violation of the City facility and Services portion of the ordinance. The hearing examiner found that the Complainant had failed to established standing for the alleged violation because Complainant never requested the services that were the subject of the City facilities and services.

The Complainant also contended that he was discriminated against when he was not allowed to work as a volunteer on Respondent's crisis line because of his sex. The hearing examiner determined that the ordinance does not cover volunteer positions because there is no exchange of compensation as in an employer-employee situation.

The Complainant also alleged discrimination in advertisement when the Respondent identified itself as a feminist organization on its recruitment advertising. The hearing examiner found that this was not a violation of the ordinance because it was a mechanism for the Respondent to identify itself, not to prevent non-feminists from applying for positions within the Respondent's organization. On appeal, the Commission agreed with the hearing examiner's decision. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. 8/20/99, Ex. Dec. 3/26/99).


600 PROOF - STANDARDS AND BURDENS

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

The record in this matter is extremely sparse, especially from the perspective of the Complainant, who pursued this complaint pro se. While the Hearing Examiner may extend certain procedural requirements to assist an unrepresented party, the Hearing Examiner may not reduce the standards of proof to assist an unrepresented party. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

610 Proof of Discrimination

Complainant, a heterosexual male who wore shoulder length hair and casual clothes, failed to present a prima facie case on any of his claims for discrimination in the terms and conditions of employment on the bases of sex, sexual orientation and physical appearance, and termination on the bases of sex and sexual orientation. Mullen v. Answer Madison-TDS, MEOC Case No. 21815 (Comm. Dec. 3/13/97, Ex. Dec. 4/12/96).

Complainant claimed that she was terminated because of her age. She was sixty-two when Respondent terminated her employment. Respondent offered one nondiscriminatory explanation-poor job performance-but Respondent produced very little credible evidence supporting the explanation. For her part, Complainant established that she was never disciplined for poor performance, that management-level employees, including the company president, had made derogatory remarks about her age, weight and appearance, and that she was replaced with someone much younger. On this evidence, the Hearing Examiner found that Respondent had discriminated against Complainant. The Hearing Examiner noted that under the EOC framework, Complainant only needed to show that age partly motivated her termination. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Commission affirmed dismissal of Complainant's race and retaliation claims against Respondent at hearing when the Complainant refused to call any witness or otherwise submit any evidence in support of her discrimination claims, despite the Hearing Examiner's repeated promptings to proceed. Duff v. JC Penney Stores, MEOC Case No. 20032069 (Comm. Dec. 8/25/06).

The Complainant, an African American, walks with a pronounced limp.  He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises.  After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability.  The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

The Complainant has a disability in the form of epilepsy. He has a dog accompany him and he relies upon the dog to alert him to seizures and respond to him when he experiences a seizure. The Complainant filed a claim alleging that the Respondent discriminated against him in a public place of accommodation based primarily upon his disability and his use of a service dog by ordering him and the dog out of Respondent's premises. After hearing, the Hearing Examiner determined that the primary issue in the case was whether the Complainant met his burden of proof, not whether he was disabled or if his dog was a service animal or provided a reasonable accommodation (although the Hearing Examiner addressed these issues). The Hearing Examiner determined that the Complainant's version of events was contradictory and vague and thus, unlikely. The Hearing Examiner found that the Respondent's version of the same events was more credible and corroborated by a restaurant manager, thus concluding that the Complainant failed to carry his burden of proof and dismissing his complaint. Bottila v. McDonalds, MEOC Case No. 20073203 (Ex. Dec. 7/27/09).

Complainant might still prevail even if the Respondent presents a legitimate, nondiscriminatory explanation, if he can produce evidence that demonstrates the Respondent's explanation is either not credible or represents a pretext for an otherwise discriminatory reason. In this case, Complainant in presenting his claim of discrimination based on race and gender seeks to disprove the explanation presented by the Respondent rather than assuming the responsibility to demonstrate that the Respondent has discriminated against him. Even if the Complainant can successfully demonstrate that the Respondent's explanation is not credible, that, of itself, fails to demonstrate that he the Respondent affirmatively discriminated against him. In focusing his presentation not on presenting affirmative evidence supporting his claims of discrimination, but on disproving the Respondent's explanation, Complainant has essentially skipped over the first step in the McDonnell Douglas framework, thereby denying the Hearing Examiner the opportunity to determine if a prima facie claim has been demonstrated, as well as eliminating the burden on the Respondent to demonstrate a legitimate, nondiscriminatory reason for its actions. See McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973)). Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (Ex. Dec. 7/3/2013).

The Respondent did not discriminate against the Complainant on the basis of his conviction record because he did not apply for employment with the Respondent. It is not possible for the Hearing Examiner to conclude that the Complainant would be a qualified applicant even if he had applied for the position because the Complainant lacked some of the necessary certifications for the position in which he was interested. Given the record as a whole, the Hearing Examiner can find no basis for the Complainant's claim that the Respondent failed or refused to hire him because of his conviction record. Equally, there is no indication in the record that the Respondent took any steps to prevent or to discourage the Complainant from pursuing an application with the Respondent. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

Reporting harassment (in this instance by nonsupervisory coworkers) or demonstrating that an employer reasonably knew or should have known is an essential element in a claim of racial harassment. One of Complainant's nonsupervisory coworkers harassed him because of his race and/or color, but Complainant has not met his burden of proof to establish that it is more likely than not that he reported nonsupervisory co-worker harassment to management. Failing to demonstrate by the greater weight of the credible evidence that either he reported the harassment to management or that management should have reasonably known of the harassment, the Complainant fails to meet his burden of proof with respect to this claim. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

A single incident involving Respondent supervisor's insensitive, hurtful, and racially biased statement to Complainant, in the context of an extensive personal history of sympathetic or friendly relations between the two and pre-dating Complainant's employment with Respondent, is insufficient to establish a pattern or practice of supervisory harassment. The ordinance does not establish a per se standard in which even a single incident can establish violation of the ordinance. Even this single incident when considered in combination with a similar but more ambiguous incident between Complainant and a second Respondent supervisor does not rise to the level of a hostile workplace that would permit the Hearing Examiner to find a persistent pattern or practice of harassing conduct. The two isolated and individual incidents do not establish illegal discrimination under the terms of the ordinance. The Complainant was not subject to harassment on the basis of his race or color by a manager of the Respondent. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

Complainant's general complaints fail to specify the actual method or manner of harassment and thus do not establish that the Complainant was subjected to a pervasive pattern or practice of patently offensive language or conduct of an explicitly racial nature stemming from the supervisors at the Complainant's workplace. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

In the case of harassment by a customer, it must be demonstrated that the employer either knew or reasonably should have known of the harassment and failed to take reasonable steps to eliminate the conduct. The Hearing Examiner finds that there is insufficient support in the record to conclude that the Complainant complained to Respondent management about discriminatory language or treatment at the hands of customers, leading Hearing Examiner to conclude that Complainant may have been harassed by customers of the Respondent because of his race or color, but he failed to report those incidents. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

611 Direct Evidence of Discrimination

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Statements offered as direct evidence of discriminatory intent must illustrate discriminatory bias beyond the need for inference. A Complainant was not discriminated against in her transfer when a co-worker used language that could not be deemed discriminatory without presumptions. Peterson v. Madison Metropolitan School District, MEOC Case No. 22728 (Ex. Dec. 11/16/01).

The Commission affirmed dismissal of Complainant's race and retaliation claims against Respondent at hearing when the Complainant refused to call any witness or otherwise submit any evidence in support of her discrimination claims, despite the Hearing Examiner's repeated promptings to proceed. Duff v. JC Penney Stores, MEOC Case No. 20032069 (Comm. Dec. 8/25/06).

The Complainant, an African American, walks with a pronounced limp.  He alleged discrimination in a public place of accommodation or amusement based on race and disability against Respondent, an automobile dealership. Allegedly, the Respondent refused to service the Complaint's car, made disparaging remarks about his race and mobility, and requested he leave the premises.  After hearing, the hearing examiner determined that there was no proof of actual disability without expert medical testimony, and held when Respondent is equally credible as Complainant, Complainant needs additional evidence to demonstrate a perceived disability.  The hearing examiner also found insufficient evidence in the record that the Complainant was denied service or equal enjoyment of a public place of accommodation or amusement because of racial discrimination, despite his suspicions to the contrary. Marchell Mack v. Kayser Automotive Group, MEOC Case No. 20043144 (Ex. Dec. 9/18/07, aff'd Comm. Dec. 4/1/08).

612 Proof of Intent Utilizing the McDonnell-Douglas v. Green Framework

In the case of a claim presented by indirect evidence, the Hearing Examiner will apply the McDonnell Douglas/Burdine burden shifting approach to determine whether discrimination has occurred. See McDonnell Douglas Corp. v. Green (411 U.S. 792 (1973); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

612.1 General Considerations

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97) Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

Complainant alleges that unfair treatment during his work tenure, and his eventual termination, was due to race and sex discrimination on the part of supervisory staff. The Hearing Examiner found that Complainant's employment was terminated because his attitude and actions caused his supervisors and coworkers, both African American and white, male and female, to no longer be able to work with the Complainant. The Complainant's inability to work with others or to work towards resolution of outstanding issues required his termination. Neither the Complainant's sex nor his race or color were motivating factors in his termination. Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (Ex. Dec. 7/3/2013).

Complainant's general complaints fail to specify the actual method or manner of harassment and thus do not establish that the Complainant was subjected to a pervasive pattern or practice of patently offensive language or conduct of an explicitly racial nature stemming from the supervisors at the Complainant's workplace. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

In the case of harassment by a customer, it must be demonstrated that the employer either knew or reasonably should have known of the harassment and failed to take reasonable steps to eliminate the conduct. The Hearing Examiner finds that there is insufficient support in the record to conclude that the Complainant complained to Respondent management about discriminatory language or treatment at the hands of customers, leading Hearing Examiner to conclude that Complainant may have been harassed by customers of the Respondent because of his race or color, but he failed to report those incidents. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

612.2 Complainant's Prima Facie Case

In the absence of proof of a significant disparity in the hiring of blacks and whites by the Respondent, Complainant failed to prove any pattern of discrimination by Respondent. Rose v. Kippcast, MEOC Case No. 20851 (Ex. Dec. 9/29/89).

Complainant, a lesbian, alleged that because of her sexual orientation the Respondent terminated her employment earlier than expected and failed or refused to hire her, despite the fact she believed she was qualified. Respondent moved to dismiss because Respondent claimed the alleged acts of discrimination occurred outside of the 300 day statute of limitations.

The hearing examiner granted and denied the motion in part. The hearing examiner ruled that the alleged acts of discrimination relating to actions occurring before the Respondent had knowledge of the Complainant's sexual orientation were barred because knowledge of the protected class is an essential element of Complainant's primae facie case. The hearing examiner permitted claims arising after Respondent's knowledge of Complainant's sexual orientation that were outside of the 300 day limit to proceed, because Complainant successfully alleged a continuing course of conduct on part of the Respondent. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec.11/11/97, on motion to dismiss 2/19/96).

The Complainant (black/African-American) alleged that the Respondent suspended him and later terminated his employment on account of his race and color. The Hearing Examiner concluded that the Complainant failed to establish a nexus between his membership in a protected class and the adverse actions he suffered. In this regard, the Complainant primarily argued that, in the year following his termination, the Respondent hired a number of individuals outside of his protected class. The Hearing Examiner held that this fact, without more, cannot result in a finding that the Respondent's actions towards the Complainant were racially motivated. Rather, at most, the record supports finding that the Respondent's actions were symptomatic of a lapse in business judgment. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11, 2nd Ex. Dec. 11/30/11, Comm. Dec. 05/23/12).

A single incident involving Respondent supervisor's insensitive, hurtful, and racially biased statement to Complainant, in the context of an extensive personal history of sympathetic or friendly relations between the two and pre-dating Complainant's employment with Respondent, is insufficient to establish a pattern or practice of supervisory harassment. The ordinance does not establish a per se standard in which even a single incident can establish violation of the ordinance. Even this single incident when considered in combination with a similar but more ambiguous incident between Complainant and a second Respondent supervisor does not rise to the level of a hostile workplace that would permit the Hearing Examiner to find a persistent pattern or practice of harassing conduct. The two isolated and individual incidents do not establish illegal discrimination under the terms of the ordinance. The Complainant was not subject to harassment on the basis of his race or color by a manager of the Respondent. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

612.3 Respondent's Burden to Articulate Legitimate, Non-Discriminatory Reason

An employer need only articulate reasons why its regulation of employees' physical appearance meets the exception specified in the Ordinance for "reasonable business purpose"; the employee must then prove that those reasons are invalid. State ex rel. McDonald's Restaurant v. MEOC (Karaffa), supra; also, City of Madison v. Rennebohm's Drug Store (Marks), CV179P319 (Dane County Cir. Ct., 7/19/77).

The Hearing Examiner concluded that the Complainant's (a Black Dominican) demotion and the requirement that he produce a doctor's excuse for his absence were not predicated on either his race or national origin/ancestry but were reasonable and non-discriminatory exercises of management authority. The Hearing Examiner found that he was without jurisdiction to consider Complainant's claim regarding termination because the Complainant had not timely appealed a finding of no probable cause with respect to this allegation. De Leon v. Woodman's Food Market - West, MEOC Case No. 22080 (Ex. Dec. 6/11/97).

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of her sexual orientation (lesbian) in failing to extend her limited term employment or to hire her for several positions on either the adult or children's psychiatric units. The Hearing Examiner was persuaded by the Respondent's explanation that other employees and applicants were more qualified that the Complainant for these positions. The Complainant also contended that her LTE position had been prematurely terminated. The Hearing Examiner found that her position had expired and that she had not lost any shifts to which she may have otherwise been entitled. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec.11/11/97, on motion to dismiss 2/19/96).

Although the Complainant, a homosexual male, is protected by the Equal Opportunities Ordinance, Sec. 3.23, because of his sexual orientation, Respondent did not discriminate against him on this basis upon discharging him from employment. The Hearing Examiner concluded that Complainant's extreme and undesirable public behavior at a work- related convention was the Respondent's non-discriminatory reason for terminating Complaint's employment. Goad v. Ahrens Cadillac/Oldsmobile, Inc., MEOC Case No. 20022061 (Comm. Dec. 12/26/06, Ex. Dec. 8/6/06).

The Respondent's stated reason for not continuing the application process, that the Complainant failed to produce required professional documentation, is a legitimate, nondiscriminatory explanation for not continuing the application process. The Complainant fails to point to evidence or facts that are sufficient to rebut the Respondent's nondiscriminatory explanation for its decision to terminate the Complainant's application. The Complainant admittedly had not submitted much of the material required by the Respondent as part of the application process. There is no assertion that the material required by the Respondent was discriminatory or that the requirement to provide the information was either discriminatory or was discriminatorily applied. Complainant failed to demonstrate by a preponderance of the evidence a prima facie case that he was discriminated against in employment based on race. Had the Complainant initially made a prima facie case of discrimination, this failure to carry his burden of proof at this stage would result in a finding of no discrimination as well. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

612.4 Complainant's Proof of Pretext

Complainant charged that she was terminated by Respondent because of her race. The hearing examiner dismissed the charge when Complainant failed to rebut Respondent's evidence that the termination was due to Complainant's insubordination and disruptive behavior at the work place. The hearing examiner concluded that Respondent's reasons for terminating the Complainant were legitimate and non-discriminatory bases for termination. Hardin v. Swiss Colony, Inc., MEOC Case No. 2323 (Ex. Dec. 10/13/77).

The hearing examiner determined that Complainant, a female, was discriminated against based on her sex when she did not receive a promotional position as a supervisor for security and parking, and a male who was less qualified was promoted instead. Respondent's reasons for failing to promote Complainant were found to be a pretext because Complainant had more work and job related experience than the male who received the promotion.

The hearing examiner also ruled that if the Complainant and the male who received the promotion were viewed as equally qualified, the seniority rule would still cause the Complainant to receive the promotion because Complainant had been at the job longer than the male who received the promotion. Dayton v. Madison Gen. Hospital, MEOC Case No. 2535 (Comm. Dec. 3/5/81, Ex. Dec. 10/17/80).

When a Respondent employer claims a Complainant suffered an adverse action when a job requirement was not met, but had already postponed or waived that requirement to allow the Complainant to work, that claim is pretextual. Teich v. Center for Prevention and Intervention, MEOC Case No. 20002153 (Ex. Dec. 6/12/02, On Fees 8/5/02).

The retroactive manipulation of written records concerning items at the heart of a litigation is a strong indicator of a Respondent's pretext. A Respondent amended its minutes in order to remove language that would expose it to liability. Teich v. Center for Prevention and Intervention, MEOC Case No. 20002153 (Ex. Dec. 6/12/02, On Fees 8/5/02).

612.5 Complainant's Ultimate Burden of Proof

Though Respondent failed to appear, Complainant's claim based on race was dismissed because the Complainant presented no evidence showing he was treated differently from other employees not of his race. The Hearing Examiner found Respondent did discriminate against the Complainant on the basis of previous conviction record and age. Brooks v. I.S.S. and Ed Hasmer, MEOC Case No. 21535 (Ex. Dec. 5/13/93).

Complainant alleged he was discriminated against in the terms and conditions of his employment because of his sex (male), sexual orientation (heterosexual male) and physical appearance (he wore a shoulder length ponytail and casual clothing) in that he was given a different job position while his supervisory duties and his authority to make personnel decisions were eliminated. Complainant also alleged that he was terminated because of his sex, sexual orientation, and physical appearance.

The hearing examiner ruled that it is encumbent for a Complainant to establish by a preponderance of the evidence the substance of his/her claims and that the failure to do so precludes the establishment of a prima facie case. Here, the Complainant did not establish a prima facie case on any of his allegations of discrimination; in the alternative, even if alleged, the Respondent's actions in changing his job title and duties, and in terminating him were not pretextual but were justified by legitimate nondiscriminatory business reasons. Mullen v. Answer Madison-TDS, MEOC Case No. 21815 (Comm. Dec. 3/13/97, Ex. Dec. 4/12/96).

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The hearing examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the hearing examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the hearing examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

The Commission affirmed dismissal of Complainant's race and retaliation claims against Respondent at hearing when the Complainant refused to call any witness or otherwise submit any evidence in support of her discrimination claims, despite the Hearing Examiner's repeated promptings to proceed. Duff v. JC Penney Stores, MEOC Case No. 20032069 (Comm. Dec. 8/25/06).

During the investigative phase of a complaint, the Complainant is entitled to an inference of credibility in that factual disputes must be resolved in favor of the Complainant. However, at the hearing stage, the Complainant must demonstrate that her testimony is to be believed over that of the Respondent by a preponderance of the evidence. Failing that, the complaint will be dismissed. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

613 Burden of Proof in Mixed Motive Cases

The Respondent was found to have discriminated against the Complainant, a black male, on the basis of race in regard to employment termination. It was proven that the Respondent treated Complainant differently with respect to discipline. Complainant was awarded back pay, front pay, prejudgment interest, and reasonable costs and attorney's fees. On appeal, the Commission upheld the Examiner's ruling. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. The Court found that the Commission's use of the "in part" test for determining discrimination was appropriate. The Court of Appeals affirmed the judgment below stating that it need not determine whether the substantial evidence test or the "in part" test was appropriate because the level of proof of discrimination was sufficient under either test. The Court of Appeals remanded the complaint to the Commission for further determination of damages. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

614 Complainant's Burden of Proof on Damages

The Complainant must prove damages resulting from discrimination by a preponderance of the evidence. Such damages may include monetary amounts for back pay, front pay, and emotional distress. The Complainant also has the burden to set forth credible evidence of efforts made to mitigate damages caused by a discriminatory act. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

In a claim of housing discrimination, the Complainant is entitled to a hearing on damages when Respondent stipulates to violating the ordinance by considering Complainant's conviction record in denying housing to Complaint. Terry v. YWCA Madison, MEOC Case No. 20051011 (Ex. Dec. 10/08/07; Ex. Dec. Costs & Fees 1/4/08; Comm. Dec. Final Order 9/19/08). See Commission Decision and Final Order in Terry, No. 20051011, wherein Commission ordered Respondent to pay Complainant $93.00 in costs pursuant to stipulation between parties, but agreed with Hearing Examiner's determination that no legal fees are appropriate based on Complainant's unsubstantiated claim for same and pro se status. (Comm. Dec. 9/19/08; Ex. Dec. Costs and Fees 1/4/08).

620 Proof of Disparate Impact

620.1 General Considerations

The Hearing Examiner held that the statistical evidence did not establish that the Respondent's policy of not hiring relatives or close friends of persons who were employed by Respondent's competitors had a disparate impact on a protected group where the Complainant alleged he had been discriminated against on the basis of his marital status. Gustafson v. WPS, MEOC Case No. 20539 (Ex. Dec. 5/19/87).

620.2 Complainant's Burden to Show Adverse Impact

620.21 Complainant's Prima Facie Case

620.22 Extent of Disparity

620.23 Adequacy of Sample Size

620.3 Respondent's Burden to Show Job-Relatedness

An employer need only articulate reasons why its regulation of employees' physical appearance meets the exception specified in the Ordinance for "reasonable business purpose"; the employee must then prove that those reasons are invalid. State ex rel. McDonald's Restaurant v. MEOC (Karaffa), supra; also, City of Madison v. Rennebohm's Drug Store (Marks), CV179P319 (Dane County, 7/19/77).

620.4 Complainant's Burden to Demonstrate Availability of Alternatives with Less Adverse Impact

620.5 Cases

620.9 Miscellaneous

630 Probable Cause

630.1 Definition of Probable Cause

630.2 Complainant's Burden of Proof

The Commission dismissed the Complainant's appeal of the Hearing Examiner's affirmance of the initial determination's conclusion that there was no probable cause to believe that he had been discriminated against by the Respondent, finding that the Respondent's use of an arguably insufficient notice of termination did not demonstrate that it had discriminated against the Complainant since it used the same notice in terminating tenants not of the Complainant's race. In general, the Complainant failed to provide information sufficient to support his claim that his race was a factor in his treatment by the Respondent. Settle v. Harbor Residential Services, Inc., MEOC Case No. 1633 (Comm. Dec. 1/3/96).

In upholding the Hearing Examiner's decision that Respondents had discriminated against Complainants on the basis of race but not on their lawful source of income, the Commission ruled that the elements of a prima facie housing case are flexible and must reflect the actual allegations of the complaint. To be locked into a single statement of the definition of a prima facie case would ignore the broad variety of claims that encompass the field of housing discrimination. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 1/23/96).

The Hearing Examiner concluded that the Respondent had not discriminated against the Complainant on the basis of her sexual orientation (lesbian) in failing to extend her limited term employment or to hire her for several positions on either the adult or children's psychiatric units. The Hearing Examiner was persuaded by the Respondent's explanation that other employees and applicants were more qualified that the Complainant for these positions. The Complainant also contended that her LTE position had been prematurely terminated. The Hearing Examiner found that her position had expired and that she had not lost any shifts to which she may have otherwise been entitled. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec.11/11/97, on motion to dismiss 2/19/96).

Lateral transfer within an organization, while keeping the same job duties and pay, is not an adverse employment action. A Complainant was not discriminated against when she was transferred from one school to a different school, with no substantial change in the terms of her employment. Peterson v. Madison Metropolitan School District, MEOC Case No. 22728 (Ex. Dec. 11/16/01).

African American (Black) male Complainant alleges that Respondent discriminated against him on the basis of race by failing to hire Complainant for a Mortgage Loan Officer (MLO) position, or at least, determining not to continue the application process. The first two elements of a prima facie case having been demonstrated, the question for the Hearing Examiner is to determine whether there are facts or evidence demonstrating that there is a causal connection between the Complainant's race and the fact that the Respondent did not hire him as a MLO. It is the Complainant's burden to establish by the greater weight of the credible evidence that his version of events is the correct one.

When Complainant not only failed to provide Respondent with material clearly delineated as required for application for the MLO position, but made it clear that he would not be able to do so, the Respondent terminated his application. The Hearing Examiner finds that nothing in the record demonstrates any presence of a concern for race prior to the Complainant's first mention of it. The record is clear that the Respondent has never hired an MLO without having all the required materials in hand, and the Respondent requires the same professional documentation of all applicants for MLO positions regardless of race. Complainant makes no assertion that the material required by the Respondent was discriminatory or that the requirement to provide the information was either discriminatory or was discriminatorily applied. The Complainant has not presented sufficient evidence to demonstrate a prima facie claim of discrimination on the basis of race. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

Judging credibility is more of an art than a science. It relies upon observations of conduct, attention to nuance in speech and use of language, consideration of the weight of evidence and the detail with which it is given as well as many other intangible factors. A finding that witnesses on opposite sides of an issue both appear credible is not impossible, but will represent a failure of one's burden of proof. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

Reporting harassment (in this instance by nonsupervisory coworkers) or demonstrating that an employer reasonably knew or should have known is an essential element in a claim of racial harassment. One of Complainant's nonsupervisory coworkers harassed him because of his race and/or color, but Complainant has not met his burden of proof to establish that it is more likely than not that he reported nonsupervisory co-worker harassment to management. Failing to demonstrate by the greater weight of the credible evidence that either he reported the harassment to management or that management should have reasonably known of the harassment, the Complainant fails to meet his burden of proof with respect to this claim. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

A single incident involving Respondent supervisor's insensitive, hurtful, and racially biased statement to Complainant, in the context of an extensive personal history of sympathetic or friendly relations between the two and pre-dating Complainant's employment with Respondent, is insufficient to establish a pattern or practice of supervisory harassment. The ordinance does not establish a per se standard in which even a single incident can establish violation of the ordinance. Even this single incident when considered in combination with a similar but more ambiguous incident between Complainant and a second Respondent supervisor does not rise to the level of a hostile workplace that would permit the Hearing Examiner to find a persistent pattern or practice of harassing conduct. The two isolated and individual incidents do not establish illegal discrimination under the terms of the ordinance. The Complainant was not subject to harassment on the basis of his race or color by a manager of the Respondent. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

At the time of the Complainant's termination, Respondent employed at least one other African American in the position of Delivery Driver. While the Hearing Examiner does find the Respondent's failure to document its termination decision troubling, the Hearing Examiner concludes that the Complainant fails to present sufficient evidence for the Hearing Examiner to conclude that his race or color was a motivating factor in the Respondent's decision to terminate Complainant. Complainant has failed to carry his burden of proof as to either the existence of a causal connection between his race or color and his termination, or that if such a causal connection has been made that the Respondent's explanation is pretextual. The Hearing Examiner concludes that the Complainant's termination was not motivated by his race or color. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

630.3 Credibility Considerations

Complainant, a Hispanic, charged that the Respondent terminated the Complainant because of his race and national origin/ancestry. The hearing examiner found that the Commission had jurisdiction over the complaint because the Respondent could not prove that the relationship between the Complainant and Respondent was of an independent contract nature, rather than an employee-employer relationship. This was because all the work was done at Respondent's site, all duties were overseen and assigned by Respondent, all tools were provided by Respondent, there was no written contract and Complainant was paid by the hour instead of a flat fee.

Having found that the Commission had jurisdiction, the hearing examiner nevertheless concluded that the Complainant had not carried his burden to overcome the Respondent's independent witness about certain facts in controversy and could not overcome the inference of a lack of a discriminatory motive when the Respondent hired a Hispanic on the day he fired the Complainant, an El Salvadorian. The Commission later adopted the hearing examiner's decision. Castillo v. Fisher and Hellenbrand, MEOC Case No. 22322 (Com. Dec. 11/1/99, Ex. Dec. 3/13/99).

Complainant filed a charge of discrimination based on his conviction/arrest record when he was terminated by his employer after working two (2) shifts for Respondent. Respondent claimed that the motivation for terminating Complainant was his alleged failure to disclose a 1993 conviction and three contacts with the police that were neither convictions nor arrests.

The hearing examiner found that Respondent's position was not credible. This was because the hearing examiner found that Respondent's primary witness's testimony was given in a manner that lead the hearing examiner to believe she was protecting her employer rather than telling the truth. Hayes v. Clean Power, MEOC Case No. 19982028 (Ex. Dec. 10/7/99).

Judging credibility is more of an art than a science. It relies upon observations of conduct, attention to nuance in speech and use of language, consideration of the weight of evidence and the detail with which it is given as well as many other intangible factors. A finding that witnesses on opposite sides of an issue both appear credible is not impossible, but will represent a failure of one's burden of proof. Wakefield v. Simonson Bros. of Wisconsin, Inc., MEOC Case No. 20112017 (Ex. Dec. 04/19/2013).

630.4 Cases

Where the MEOC (1) allows the complainant to participate in the investigation of the complaint by bringing witnesses and documents, (2) writes a detailed list of reasons for its investigative determination, and (3) has the authority to issue subpoenas to require the employer to explain its actions, it is not a denial of due process to limit the complainant's appeal of a no probable cause determination to a written and/or oral presentation to an examiner. State ex rel. Adams v. MEOC, (Northport Packers), No. 82-CV-1637 (Dane County Cir. Ct., 6/9/83).

630.9 Miscellaneous

640 Specific Issues

640.1 Proof of Medical Facts

640.2 Miscellaneous


700 PROCEDURE

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

The Complainant alleged that the Respondent discriminated against her in terms and conditions of employment on account of her race and color. A hearing on the merits was scheduled for September 21, 2010 at 9:00 AM. On September 21, the Complainant failed to appear on time. As a result, the Hearing Examiner concluded proceedings, took the Respondent's motion to dismiss under advisement, and issued an Order to Show Cause. In her answer to the Order to Show Cause, the Complainant insisted that she did not receive the Notice of Hearing issued April 8, 2010. However, the Complainant submitted a letter to the Equal Opportunities Division on May 4, 2010 acknowledging receipt of the Notice of Hearing. In the Decision and Order on Respondent's Motion to Dismiss, the Hearing Examiner concluded that the Complainant failed to set forth a good faith explanation for her belated appearance at the hearing. The Hearing Examiner dismissed the Complainant's case for failure to show cause. McCann-Smith v. St. Mary's Hospital, MEOC Case No. 20092160 (Ex. Dec. 11/3/10).

The Complainant alleged that the Respondent, in denying his application for Section 8 housing, discriminated against him on the bases of color, arrest record, and conviction record. In its answer to the complaint, the Respondent moved to dismiss the case for lack of personal jurisdiction and for lack of subject matter jurisdiction. The Hearing Examiner found that the Equal Opportunities Division (EOD) has personal jurisdiction over the Respondent because, although the Respondent may be an independent body politic, it is nevertheless an agent of the City of Madison. The provisions of the Equal Opportunities Ordinance prohibit discrimination in the provision of housing by the City of Madison or by an agent of the City. As for the Respondent's motion to dismiss for lack of subject matter jurisdiction, the Hearing Examiner held that a jurisdictional determination would be premature because the Respondent's motion interrupted the EOD's investigative process. Therefore, the Hearing Examiner remanded the Complainant's claims of arrest and conviction record discrimination to an Investigator/Conciliator for further investigation and the issuance of an Initial Determination. The Hearing Examiner ordered that the Complainant's color discrimination claim be transferred to either the Department of Workforce Development or to Housing and Urban Development. Brown v. CDA, MEOC Case No. 20101085 (Ex. Dec. 01/20/2011).

710 Complaint

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).

A tenant who was evicted for dealing drugs from his apartment brought an EOC complaint against his former landlord, claiming discrimination based upon his arrest record. The tenant had been targeted by local police and the FBI. The landlord initiated court proceedings to evict the tenant only after having been informed that the tenant was under investigation. At the eviction hearing, the tenant raised discrimination based upon his arrest record as an affirmative defense. The circuit court explicitly found that the landlord did not violate the Equal Opportunities Ordinance.

Subsequently, the landlord moved to dismiss the EOC complaint, asserting that collateral estoppel precluded the tenant from relitigating his discrimination claim. After reviewing the eviction hearing transcript, the EOC Hearing Examiner ruled that the tenant never had an opportunity to fully and fairly litigate his claim because the circuit court judge had prevented the tenant from giving any testimony related to his EOC complaint. Pesselman v. Thomas Link, d/b/a Bellevue Apartments, MEOC Case No. 20021153 (Ex. Dec. 5/26/2005).

710.1 Timeliness

710.11 Measurement of Timeliness

The Hearing Examiner concluded that the Commission uses the standard of "knew or reasonably should have known" when determining the timeliness of filing a complaint. The Hearing Examiner then determined that the Respondents had failed to demonstrate that the Complainant should have known of the differential treatment afforded a male at a date earlier than she proposed. Ennis v. Local 965 IBEW, MEOC Case No. 22118 & Ennis v. WP&L, MEOC Case No. 22119 (Ex. Dec. on jurisdiction 2/3/95 and 3/17/95).

The Hearing Examiner concluded that the Commission could utilize the continuing course of conduct theory to sustain jurisdiction over a complaint where the complaint alleged several acts of discrimination, some occurring outside of the 300-day period of limitations. In order to sustain such a theory, the Complainant must demonstrate either that there was a single motivation for the respondent's actions, or that the underlying conduct was significantly related. The Hearing Examiner also found that jurisdiction could be sustained if within the period of limitations the Complainant discovered that his termination, which fell outside the period of limitations, had been discriminatory. The Examiner determined that the facts before him in the record of this case were inadequate to make a final determination of jurisdiction and remanded the complaint to the Investigator.

The Investigator concluded that the Respondent had not acted with a single motivation, and that the allegations of discrimination for refusal to accommodate a disability, termination and interference with a benefit of employment (unemployment compensation) were not sufficiently similar to apply the continuing course of conduct doctrine. The Investigator entered findings of no probable cause with respect to the claims of refusal to accommodate and interference with a benefit of employment, but concluded that there was an issue of credibility concerning the date of the Complainant's knowledge of an allegedly discriminatory motive for his termination.

The Respondent renewed its motion to dismiss for lack of jurisdiction based on the Complainant's testimony in his deposition that he had suspected discrimination to be a factor in his termination at the time of his termination and conveyed this suspicion to others shortly thereafter. All these events took place outside of the period of limitation.

The Hearing Examiner dismissed the complaint, finding that there was no longer a reasonable question of fact concerning the date on which the Complainant first reasonably suspected that discrimination might have occurred, and that the date, falling outside of the limitations period, deprived the Commission of jurisdiction. Krebs v. Don Miller Pontiac Subaru, Inc., MEOC Case No. 22127 (Ex. Dec. on jurisdiction 3/29/96).

The Hearing Examiner applied his earlier decisions in Ennis and Krebs to find that the Complainant's claim partially fell within the jurisdiction of the Commission. He concluded that events occurring before the Respondent's knowledge of the Complainant's sexual orientation could not have been a basis for a complaint, but found that the complaint stated sufficient facts that a reasonable person could find that there had been a continuing course of conduct, continuing into the 300-day period preceding the filing of the complaint. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec. 11/11/97, on motion to dismiss 2/19/96).

The Respondent claimed that the complaint should be dismissed because the Complainant had allegedly filed his application outside of the 300 day time limit. The Hearing Examiner concluded that though an initial application may have been filed outside of the 300 day time limit, a second application was filed within the time limit and the Commission had jurisdiction over that application while it did not have jurisdiction over earlier events. The Hearing Examiner did not find the continuing violation theory to apply to the circumstance of a failure to hire after an application, despite repeated inquiries as to the status of that application. The application upon which jurisdiction was predicated, though filed outside of the 300 day time limit, was not acted upon until a date within the 300 day limit. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec.12/5/97).

The Hearing Examiner dismissed the complaint on the motion of the Respondent because the events comprising the allegations of the complaint occurred outside of the 300 day limitations period. The Hearing Examiner rejected Complainant's contention that an inquiry made by the Respondent after his termination about a discount he had allegedly authorized prior to his termination demonstrated a continuing violation. Converse v. Mansion Hill Inn, MEOC Case No. 22813 (Ex. Dec. 4/3/98).

Complainant filed a complaint with the Commission alleging that Respondent terminated her employment in retaliation for her exercise of rights protected by the ordinance. The Complainant did not file her complaint in a timely manner because the statute of limitations began to run from the date of her termination, not the date of her decision of her appeal of her termination. However, the hearing examiner found that the late filing could be excused because of Respondent's attempt to limit the Complainant's access to the Commission or counsel by threats allegedly made to cease processing of her appeal or settlement negotiations by the Respondent if the Complainant filed a complaint or attained an attorney. Dunn v. South Central Library System, MEOC Case No. 19982195 (Ex. Dec. 6/24/99).

An Initial Determination was received and signed for by someone other than the Complainant who was living at the address provided by Complainant. Complainant claims to have actually received the Initial Determination after the appeal deadline. The Commission will not set aside the appeal deadline when mail is received at the Complainant's provided address. Garwo v. Gardner Bakery Co., MEOC Case No. 19992041 (Comm. Dec. 3/3/00).

710.12 Continuing Violations

Note: A complaint generally must be filed within 300 days after the alleged discrimination occurs. However, there are exceptions.

Where the employee is still being paid a salary level which she alleges has been discriminatory since first set six years ago, her complaint alleges a continuing violation and is therefore timely. Meyer v. MATC, MEOC Case No. 2603 (Comm. Dec. 11/9/81, Ex. Dec. 6/16/81).

The Respondent claimed that the complaint should be dismissed because the Complainant had allegedly filed his application outside of the 300 day time limit. The Hearing Examiner concluded that though an initial application may have been filed outside of the 300 day time limit, a second application was filed within the time limit and the Commission had jurisdiction over that application while it did not have jurisdiction over earlier events. The Hearing Examiner did not find the continuing violation theory to apply to the circumstance of a failure to hire after an application, despite repeated inquiries as to the status of that application. The application upon which jurisdiction was predicated, though filed outside of the 300 day time limit, was not acted upon until a date within the 300 day limit. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec.12/5/97).

The Hearing Examiner dismissed the complaint on the motion of the Respondent because the events comprising the allegations of the complaint occurred outside of the 300 day limitations period. The Hearing Examiner rejected Complainant's contention that an inquiry made by the Respondent after his termination about a discount he had allegedly authorized prior to his termination demonstrated a continuing violation. Converse v. Mansion Hill Inn, MEOC Case No. 22813 (Ex. Dec. 4/3/98).

Complainant, a lesbian, alleged that because of her sexual orientation the Respondent terminated her employment earlier than expected and failed or refused to hire her, despite the fact she believed she was qualified. Respondent moved to dismiss because Respondent claimed the alleged acts of discrimination occurred outside of the 300 day statute of limitations.

The hearing examiner granted and denied the motion in part. The hearing examiner ruled that the alleged acts of discrimination relating to actions occurring before the Respondent had knowledge of the Complainant's sexual orientation were barred because knowledge of the protected class is an essential element of Complainant's primae facie case. The hearing examiner permitted claims arising after Respondent's knowledge of Complainant's sexual orientation that were outside of the 300 day limit to proceed, because Complainant successfully alleged a continuing course of conduct on part of the Respondent. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec.11/11/97, on motion to dismiss 2/19/96).

The Complainant alleged that he suffered continuous racial and ethnic harassment while employed by the Respondent and that he was constructively discharged as a result. Subsequent to a Pre-Hearing Conference, the Respondent submitted two motions: a Motion to Strike and a Motion for Summary Judgment. The Hearing Examiner found that the Respondent's Motion to Strike failed to observe the spirit of the Equal Opportunity Division (EOD)'s more relaxed approach to litigation and dismissed the motion as unduly strict. As for the Respondent's Motion for Summary Judgment, the Hearing Examiner reiterated that the EOD does not accept such motions and treated the motion as one asserting lack of jurisdiction. Ultimately, the Hearing Examiner dismissed the motion on the grounds that the Respondent failed to demonstrate that the Complainant's claims fell outside the 300-day statute of limitations under Equal Opportunities Commission Rule 3.11. Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

710.13 Tolling of Time to File Complaint; Equitable Estoppel

710.14 Determinations of Timeliness, Appealability

710.2 Parties, Naming in Complaint

In a housing discrimination claim, the Complainant's request for damages against a third party, not under the control of the named Respondent, should have been filed against the appropriate third party. Terry v. YWCA Madison, MEOC Case No. 20051011 (Ex. Dec. 10/08/07; Ex. Dec. Costs & Fees 1/4/08; Comm. Dec. Final Order 9/19/08). See Commission Decision and Final Order in Terry, No. 20051011, wherein Commission ordered Respondent to pay Complainant $93.00 in costs pursuant to stipulation between parties, but agreed with Hearing Examiner's determination that no legal fees are appropriate based on Complainant's unsubstantiated claim for same and pro se status. (Comm. Dec. 9/19/08; Ex. Dec. Costs and Fees 1/4/08).

710.3 Identification of Issues, Notice

710.4 Amendment of Complainant, Relation Back to Original Complaint

The Hearing Examiner gave the Complainant time to amend his complaint of discrimination to add an additional claim of discrimination, based upon the rules of the Commission which say that a complaint may be amended at any time prior to the issuance of a Notice of Hearing. Reagan v. P.A. Bergner d/b/a Boston Store, MEOC Case No. 21832 (Ex. Dec. 2/7/95).

The Hearing Examiner permitted the Complainant to amend the complaint to add respondents subsequent to the issuance of a Notice of Hearing since the Complainant demonstrated that she was unaware of the existence of several other owners of the property until she had been permitted to conduct discovery. The Hearing Examiner did not believe that the additional complexity of the litigation resulting from the addition of four respondents would be unmanageable or manifestly unfair to the existing Respondent. Booker v. Threlfall et al., MEOC Case No. 1670 (Ex. Dec. 11/19/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec.12/5/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).

710.5 Adequacy of Complaint

710.6 Appeal of Preliminary Determination Dismissing Complaint

710.7 Effect of Pre-Filing Release of Claims

The Hearing Examiner denied the Respondent's Motion to Dismiss for lack of jurisdiction. The Respondent contended that a prior settlement agreement barred the complaint before the Commission. The Hearing Examiner determined that there was insufficient proof that the terms of the prior settlement agreement, settling a grievance and dismissing the Complainant's EEOC complaint, required dismissal of the complaint before the Commission. Foy v. Madison Rehabilitation & Convalescent Center, MEOC Case No. 21831 (Comm. Dec. 6/5/95, Ex. Dec. 8/29/94, Ex. Interim Dec. 7/5/94).

710.9 Miscellaneous

The Madison Equal Opportunities Commission issued an order to transfer this complaint, which dealt with alleged discrimination on the basis of age, race, color, and national origin/ancestry to the Department of Workforce Development Equal Rights Division. The Commission granted the transfer request of the Respondent to avoid the appearance of a lack of neutrality in the wake of Complainant's prohibited ex parte communications with Commission staff, upon which the Complainant may have relied as advice. Lee v. National Conference of Bar Examiners, MEOC Case No. 20032014 (Comm. Dec. 10/20/05, Ex. Dec. 4/21/05).

720 Investigation

720.1 Generally

720.2 Appeal of No Probable Cause Determinations

The Hearing Examiner applied the rule that the period for appealing an initial determination's finding of no probable cause runs from the date of receipt by the complainant of the initial determination, not from the date the Commission mails the initial determination. The Examiner concluded that because the Respondent failed to demonstrate any prejudice from the Complainant's failure to serve his appeal of the initial determination on the Respondent, its motion to dismiss pursuant to Commission Rule 7.5 should be denied. Butler v. Research Products, MEOC Case No. 22031 (Ex. Dec. on jurisdiction 3/8/95).

The Hearing Examiner concluded that the Complainant's (a Black Dominican) demotion and the requirement that he produce a doctor's excuse for his absence were not predicated on either his race or national origin/ancestry but were reasonable and non-discriminatory exercises of management authority. The Hearing Examiner found that he was without jurisdiction to consider Complainant's claim regarding termination because the Complainant had not timely appealed a finding of no probable cause with respect to this allegation. De Leon v. Woodman's Food Market - West, MEOC Case No. 22080 (Ex. Dec. 6/11/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Speedway Self Service, MEOC Case No. 22354 (Ex. Dec. 12/5/97).

The Hearing Examiner concluded that such preemptive effect should not apply in the administrative setting, because of the lack of formality in the initial complaint. The Hearing The Respondent moved to dismiss the complaint contending that the Complainant's amendment of the complaint and a finding of no probable cause as to the amended allegations superceded or preempted the Commission's earlier finding of probable cause with respect to a different allegation. Examiner also found that the Complainant and investigator/conciliator had been very careful to incorporate by reference the allegations and findings of probable cause to believe that the Respondent discriminated on the basis of race of the earlier complaint and initial determination, into the amended complaint and amended initial determination of no probable cause to believe the Respondent discriminated on the basis of sex and sex plus race. Rolack v. Pizza Hut, MEOC Case No. 22355 (Ex. Dec. 1/22/98).

The hearing examiner found that the time which a Complainant may appeal a no probable cause Initial Determination begins to run from the date that the Initial Determination is received by the Complainant. The hearing examiner reasoned that the receipt of the Initial Determination begins the ten (10) day period in which the Complainant must file an appeal of a no probable case finding, not the day of issuance from the Investigator or notice of attempted delivery of the Initial Determination to the Complainant. Respondent's argument that the date upon which the Complainant had "constructive receipt" should be the applicable time frame in which the appeals process should be measured was rejected. The Commission adopted the hearing examiner's reasoning. Moore v. Leader Nursing and Rehabilitation Ctr., MEOC Case No. 21810 (Comm. Dec. 10/13/94, Ex. Dec. 5/6/94).

An Initial Determination was received and signed for by someone other than the Complainant who was living at the address provided by Complainant. Complainant claims to have actually received the Initial Determination after the appeal deadline. The Commission will not set aside the appeal deadline when mail is received at the Complainant's provided address. Garwo v. Gardner Bakery Co., MEOC Case No. 19992041 (Comm. Dec. 3/3/00).

The Commission ordered that the complaint alleging race/color discrimination be re-opened following an administrative dismissal resulting from Complainant's failure to appeal timely (within 15 days) an Initial Determination of No Probable Cause. The Complainant showed that she mailed her appeal to the EEOC office in Milwaukee within the 15-day time limit pursuant to her understanding of information contained with the Initial Determination. The Commission found the Complainant, legally unrepresented, had exercised good faith in attempting to comply with the deadlines for appeal, and excused her noncompliance due to arguably confusing procedural instructions. Whitt v. Catholic Charities, MEOC Case No. 20062043 (Comm. Dec. 3/5/07).

720.3 Administrative Dismissals

The Commission ordered the complaint, which had been administratively dismissed for the Complainant's failure to respond, to be re-opened because the Complainant demonstrated that through no fault of his own he had not actually received correspondence from the investigator/conciliator while he was a prisoner in the Dane County Jail. Williams v. Millans Treasure Chest, MEOC Case No. 3374 (Comm. Dec. 8/29/97); Williams v. Foot Locker, MEOC Case No. 3375 (Comm. Dec. 8/29/97)

The Commission held that a complainant moving to reopen an administratively dismissed complaint, has the burden of presenting some explanation for the conduct resulting in the complaint's dismissal. The Complainant may not stand on the facts underlying the complaint alone. Whitt v. Madison Taxi, MEOC Case No. 3397 (Comm. Dec. 7/3/98).

Complainant's complaint was dismissed when the Commission was unable to contact the Complainant due to the lack of a sufficient address. The Complainant's motion to reopen his complaint was denied because Complainant failed to meet his burden to show good cause by his stating that he was unaware of the requirement to keep the Commission informed of address changes or to provide a reasonable explanation for his inability to keep the Commission informed. Chancy v. Viking House, MEOC Case No. 1581 (Comm. Dec. 11/1/94).

The Madison Equal Opportunities Commission denied Complainant's request to reopen his dismissed complaint, which had been dismissed after he did not file an appeal within fifteen days of notification of a finding of no probable cause. Complainant was unable to meet the burden of proof regarding the failure to keep the Commission apprised of his address. Sujud v. Madison Newspaper, Inc., MEOC Case No. 20042123 (Comm. Dec. 10/20/05).

730 Conciliation

Complainant's complaint was dismissed because of his failure to sign the Conciliation Agreement reached by the parties. The Commission determined that the Complainant's stated reasons for his failure to respond, i.e., he was too busy because of problems in his life, was insufficient excuse. The fact that the Complainant asserted approximately three months later that he was ready to proceed did not state a sufficient justification for reopening the complaint. Ruiz v. Attic Correctional Services, Inc., MEOC Case No. 22104 (Comm. Dec. 6/5/95).

Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).

740 Procedures Prior to Hearing

740.1 Notice of Hearing

740.11 Generally

The Hearing Examiner permitted the Complainant to amend the complaint to add respondents subsequent to the issuance of a Notice of Hearing since the Complainant demonstrated that she was unaware of the existence of several other owners of the property until she had been permitted to conduct discovery. The Hearing Examiner did not believe that the additional complexity of the litigation resulting from the addition of four respondents would be unmanageable or manifestly unfair to the existing Respondent. Booker v. Threlfall et al., MEOC Case No. 1670 (Ex. Dec. 11/19/97).

Complainant brought action against her former employer, alleging retaliation and discrimination based upon her age, race, sex and national origin, among other factors. An Investigator/ Conciliator found probable cause and the matter was scheduled for hearing. Prior to hearing, Respondent moved the Commission to transfer the complaint to the Wisconsin Department of Workforce Development, Equal Rights Division, believing that certain communications between the Complainant and both the Investigator and the Hearing Examiner had tainted the process available to the parties under the Equal Opportunities Ordinance. The Hearing Examiner ruled that although the rights available under the Ordinance were not necessarily available under state law, and although there were important public policy reasons for not transferring the case, the Complainant had created a potentially prejudicial environment by attempting to influence members of the Commission staff. Lee v. National Conference of Bar Examiners, MEOC Case No. 20032014 (Comm. Dec. 10/20/05, Ex. Dec. 4/21/05).

740.12 Identification of Issues

A hearing examiner is without authority to enter a conclusion of discrimination on issues such as failure to rehire which were set forth in neither the notice of hearing nor which the employer otherwise had notice of (e.g., through the complaint or other documents); . . . but such notice requirement does not extend to any issues concerning proper remedy. Maxson v. Means Servs., MEOC Case No. 2783 (Comm. Dec. 6/15/83, Ex. Dec. 11/18/82), aff'd. on other grounds, Maxson v. MEOC (Means Servs.), No. 84 CV 4150 (Dane County Cir. Ct., 7/18/85). [NO LINK AVAILABLE]

The Hearing Examiner denied the Respondent's motion to dismiss for lack of subject matter jurisdiction. The Respondent alleged that one count of the Notice of Hearing was deficient because the Initial Determination lacked findings adequate to support the issue. The Hearing Examiner agreed that the Initial Determination could have been written more precisely but concluded that the Respondent had adequate notice that its failure to train Complainant for an EKG Monitor position was an issue in the complaint. Martinez v. St. Mary's Hospital Medical Center, MEOC Case No. 21812 (Ex. Dec. on jurisdiction 10/5/94).

740.2 Answer

The Respondent failed to file a written answer to the Notice of Hearing as required by the ordinance. The Respondent offered no explanation other than a straight forward admission of negligence but contended that there was no unfair surprise or prejudice to the complainant and therefore, no sanction could be applied. The Hearing Examiner determined that if Respondent's position was justified, the Respondent bears the burden of demonstrating that his default did not prejudice or cause unfair surprise to the Complainant. The Hearing Examiner also determined that the Respondent's request for a postponement for further discovery by Complainant was an inappropriate remedy. Instead the Hearing Examiner prohibited Respondent from introducing any testimony or evidence in support of his position during the liability portion of the hearing. Respondent was permitted to cross-examine Complainant's witnesses and could still oppose Complainant's exhibits during the liability portion of the hearing. Green v. Soliman, MEOC Case No. 1679 (Ex. Dec. on preclusion of testimony 2/28/97).

Complainants allege that the Respondent discriminated against them on the basis of their race (African-American) in the provision of a public place of accommodation or amusement. Subsequent to an Initial Determination of Probable Cause, the Hearing Examiner issued a Notice of Hearing and Scheduling Order on December 14, 2009. The Notice of Hearing required the Respondent to provide an answer within 10 days of its receipt. The Respondent did not file an answer to the Notice of Hearing until May 11, 2010. On January 11, 2010, the Complainants filed a motion seeking a default judgment for the Respondent's failure to timely answer the Notice of Hearing. On May 24, 2010, the Hearing Examiner held a hearing on the Complainant's motion. The Hearing Examiner was not persuaded by the Respondent's assertion that it did not receive the Notice of Hearing. The Hearing Examiner held that the inquiry ends once there is evidence that a notice was received at the last known address provided by the parties. Nevertheless, the Hearing Examiner found that an entry of default judgment was not supported by the record. In lieu of a default judgment, the Hearing Examiner granted the Complainants additional time to conduct discovery; and ordered the Respondent to pay the Complainants' reasonable costs and fees including a reasonable attorney's fee for the time expended in bringing and pursuing their motion. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011).

The parties attended a Pre-Hearing Conference at which the Hearing Examiner, among other things, stressed the importance of the Respondent's answer to the forthcoming Notice of Hearing. Subsequent to the Pre-Hearing Conference, both parties obtained counsel. Counsel for the Complainant filed a Motion for Default Judgment or for sanctions in the alternative due to the Respondent's failure to answer the Notice of Hearing. Upon review of the record, the Hearing Examiner concluded that the facts of the case did not warrant the issuance of a default judgment on liability. Rather, in granting the Complainant's motion for sanctions, the Hearing Examiner permitted the Respondent's cross-examination of witnesses and the limited introduction of documentary evidence, but precluded the Respondent from submitting direct evidence as part of its case. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11).

The Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when its taxi driver dropped them off short of their destination. The Complainants asserted that the Respondent's taxi driver, who is white and Caucasian, exhibited an irrational fear that the Complainants would harm him due to the stereotype that black, African American men are prone to violence. The Respondent maintained that its driver simply followed its curb-to-curb policy regarding drop-offs and that, given the Complainants' complete silence during the ride, its driver was justified in fearing for his safety. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent's proffered, non-discriminatory reasons for its driver's actions were not credible and a pretext for racial discrimination. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages totaling $35,000 and to pay their costs and attorney's fees. The Hearing Examiner also issued sanctions for the Respondent's failure to timely file an answer to the Notice of Hearing. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012).

740.3 Postponements

740.4 Pre-Hearing Conferences and Orders

The Hearing Examiner determined that it was inappropriate to apply sanctions on Complainant's counsel for a failure to follow the scheduling order's dictates with respect to the filing of a response to a motion for summary judgment, because the Complainant's counsel provided adequate explanation of the reasons for the failure. Similarly, Respondent's motion for sanctions for failure to comply with discovery was denied because the Hearing Examiner never issued an order compelling compliance with discovery. James v. Klein Dickert Co., Inc., MEOC Case No. 20612 (Ex. Dec. 2/23/89).

Where a complaining party did not comply with the Hearing Examiner's Notice of Pre-Hearing Conference setting a Pre-Hearing Conference nor with the Examiner's Order to Show Cause allowing Complainant the ability to demonstrate good cause for his failure to appear, the complaint was properly dismissed even though the Respondent suffered no appreciable prejudice by the Complainant's failure to comply with the Examiner's orders. Butler v. Russ Darrow, MEOC Case No. 3359 (Ex. Dec. 7/30/96).

Complainant failed to appear for Pre-Hearing Conference and Respondent moved to dismiss the complaint. Hearing Examiner issued Order to Show Cause why the complaint should not be dismissed. Complainant submitted materials indicating that he had cirrhosis and that his condition was painful. Hearing Examiner dismissed the complaint because Complainant never showed that his condition caused/explained his failure to appear. Ivy v. Belmont Nursing & Rehabilitation Center, MEOC Case No. 20032225 (Ex. Dec. 10/28/04).

The Hearing Examiner issued a Notice of Pre-Hearing Conference by sending the parties a Notice by certified mail. The Notice set the date for the Pre-Hearing Conference for April 29, 2011. The Complainant's Notice was returned to the Equal Opportunities Division (EOD) as "unclaimed" on May 2, 2011. Prior to the Notice's return to the EOD, the U.S. Post Office attempted to deliver it twice leaving notices of attempted delivery. The Complainant did not appear at the Pre-Hearing Conference. In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not receive the Notice of Pre-Hearing Conference. The Hearing Examiner found that the Complainant did not adequately explain her failure to retrieve the Notice from the Postal Service. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the EOD, and that the Commission does not generally reopen claims where the failure to appear is due to a Complainant's own conduct. Since the Complainant's receipt of the Notice of Pre-Hearing Conference was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Lawler v. Madison Metropolitan School District, MEOC Case No. 20102194 (Ex. Dec. 07/20/11).

The Hearing Examiner issued a Notice of Pre-Hearing Conference on August 24, 2011 to the Complainant and the Respondent by "delivery confirmation."  The Notice set the date of the Pre-Hearing Conference for September 15, 2011.  The U.S. Post Office attempted unsuccessfully to deliver the Notice to the Complainant on August 26, 2011 and left a notice of attempted delivery.  Thereafter, the Complainant failed to appear at the Pre-Hearing Conference.  In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not received the Notice, because she had temporarily moved to the Wisconsin Dells for work. 

The Hearing Examiner concluded that the Complainant failed to provide an adequate excuse for her non-appearance at the Pre-Hearing Conference. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the Equal Opportunities Division (EOD); and found that the Complainant should have notified the EOD of her impending absence from the mailing address she had initially provided and that she should have informed the EOD of her new mailing address in the Wisconsin Dells.  Since the Complainant's receipt of the Notice was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Hamidi v. Dreamweavers, Inc., MEOC Case No. 20112071 (Ex. Dec. 08/16/12).

740.5 Discovery

The Complainant failed to comply with the Respondent's legitimate discovery requests. Upon the Respondent's motion for sanctions, the Hearing Examiner ordered as a condition of the Complainant's continuing the action payment of Respondent's attorney's fees and costs of $562.50. The Complainant failed to comply with the conditions for continuing his complaint. The Hearing Examiner dismissed the complaint without costs to either party. Wiggins v. Shakey's Pizza and Buffet and Richard Skillrud, MEOC Case No. 21409 (Ex. Dec. 2/2/94).

The Hearing Examiner dismissed the complaint because of the Complainant's failure to appear for the taking of his deposition on two occasions and because the Complainant failed to provide any reason for his failure to appear. The Hearing Examiner declined to award the Respondent its costs and attorney's fees related to the depositions and the bringing of the motion, finding that the Complainant did not have timely actual notice of the depositions. Despite the problems with notice of the depositions, the Hearing Examiner determined that dismissal of the complaint was warranted because of the Complainant's failure to respond to orders of the Hearing Examiner. Adams v. Genna's Lounge, MEOC Case No. 3327 (Ex. Dec. 4/19/94).

Complainant filed a claim of discrimination against Respondent when they allegedly denied day care services to their daughter because of her physical disability. Respondent filed a motion to compel Complainant and her spouse to answer questions at their depositions when Complainant along with her spouse refused to do by asserting the marital-spouse privilege. The hearing examiner determined that the marital-spouse privilege did not apply according to Sec. 905.05 (3) (d) Wis, Stats., because Complainant and her husband had acted as the agent of the other and the private communications related to matters within the scope of the agency. Krasnick v. Solner, MEOC Case No. 3190 (Ex. Dec. 10/27/88 on evidence).

The Hearing Examiner made several decisions regarding discovery requests. Interrogatories asking for a version of events is a routine part of discovery and should be answered. Attempts to avoid depositions may have serious consequences. The use of "testing" must have proper explanations or else it cannot be protected as attorney work product. Testimony that is not generated by Complainant's counsel and does not reflect strategy or theory is not attorney work product. A proper remedy for failing to answer interrogatories concerning damages suffered is to exclude the evidence at the time of hearing.

There is no attorney work product privilege concerning a request for facts or evidence supporting a damage claim.

When a Complainant asks for emotional distress damages, all aspects of Complainant's life are available for discovery. A Complainant does not have the standing to claim a privacy interest for a witness. A Respondent would not be punished by having to take witness depositions after failed prior attempts. If Respondent's alleged conduct prior to the complaint filing has affected a Complainant's willingness to accept housing, the incidents of alleged conduct are relevant. Booker v. Threlfall et. al., MEOC Case No. 1670 (2nd Ex. Dec. 3/28/00)

740.6 Failure to Respond or Appear

The Hearing Examiner awarded the Complainant relief when Respondent failed to appear at the pre-hearing conference. The Complainant presented evidence that when she contacted Respondent to apply for employment as a general laborer, painter, and construction helper, the Respondent refused to consider her application because she is female, without having considered her qualifications for the position. Baremore v. Allen and Procknow, MEOC Case No. 20619 (Ex. Dec. 4/1/87).

Complainant's complaint was dismissed because of his failure to sign the Conciliation Agreement reached by the parties. The Commission determined that the Complainant's stated reasons for his failure to respond, i.e., he was too busy because of problems in his life, was insufficient excuse. The fact that the Complainant asserted approximately three months later that he was ready to proceed did not state a sufficient justification for reopening the complaint. Ruiz v. Attic Correctional Services, Inc., MEOC Case No. 22104 (Comm. Dec. 6/5/95).

A default order is properly entered when Respondent failed to appear at the Pre-Hearing conference and when given the opportunity to explain the nonappearance gives the non-credible conflicting explanations that the person intended to appear forgot the conference due to conflict on his calendar, and that its legal counsel was unable to handle the conference. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

The complaint is properly dismissed when Complainant's stated reasons for his non-appearance at the Pre-Hearing Conference demonstrates a lack of truthfulness. The facts surrounding the events associated with the scheduled conference demonstrate that Complainant could have taken various steps to cure the possibility of his nonappearance because an initial Pre-Hearing Conference had been postponed and rescheduled. Hohlstein v. Shopko, MEOC Case No. 22381 (Ex. Dec. 11/26/96).

The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent. The Respondent failed to appear at a pre-hearing conference of which it had received notice, and then offered contradictory explanations for its failure to appear when given the opportunity to explain its absence. The Commission concluded that the Hearing Examiner was justified in finding the Respondent's explanations to be incredible and that the limited record supported an award of $100 to the Complainant for one day's lost pay. The Commission affirmed the Hearing Examiner's order that the Respondent place equal opportunity statements in its place of employment and attend training presented by the Commission. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

Where Complainant failed to comply with the hearing examiner's order to submit to discovery and then failed to respond to the hearing examiner's Order to Show Cause why the complaint should not be dismissed, the complaint was dismissed with prejudice. However, the hearing examiner had no authority to grant Respondent's motion for request of attorney's fees. Harris v. Accent Service Company, MEOC Case No. 22576 (Ex. Dec. 8/24/98).

Complainant filed a complaint against the Respondent based on discrimination in a public place of accommodation or amusement. The Respondent moved for dismissal of the complaint for Complainant's failure to appear at a pre-hearing conference. The dismissal was granted because the Complainant's mother's failure to forward the notice of the conference to the Complainant was not good cause particularly where the Commission had only been given the mother's address for mailing purposes. On appeal, the Commission adopted the hearing examiner's decision. Velazquez-Aguilu v. Abercrombie & Fitch, MEOC Case No. 03398 (Comm. Dec. 7/20/99, Ex. Dec. 3/30/99).

Complainant charged that Respondent had terminated him on the basis of his race. After a Pre-Hearing Conference was scheduled, Complainant failed to appear due to his confinement in jail in an unrelated matter. Complainant's case was administratively dismissed for Complainant's failure to appear. Complainant requested that his case be reinstated. The Commission concluded that where a notice of a Pre-Hearing Conference was received at a party's last known address and that party fails to respond, the duty shifts to the non-responding party to keep the Commission informed of a party's latest address. Based on this reasoning the Commission denied Complainant's request to re-instate his complaint. Murphy v. Woodman's and Kellahue, MEOC Case No. 21688 (Comm. Dec. 10/26/93).

The Commission denied Complainant's request to re-instate his complaint when Complainant failed to appear for a scheduled Pre-Hearing Conference despite Complainant's claim that the purported signature on the return service receipt was not his. Specifically, the Complainant alleged that his roommate signed the notice of the hearing and failed to inform the Complainant of the notice. The Commission concluded that even if what the Complainant claimed happened with the signature was true, it is still the responsibility of all complainants to remain informed about their complaints and the progress of the complaints. Francis v. Quarra Stone Company, MEOC Case No. 21764 (Comm. Dec. 11/4/93).

Complainant failed to appear for Pre-Hearing Conference and Respondent moved to dismiss the complaint. Hearing Examiner issued Order to Show Cause why the complaint should not be dismissed. Complainant submitted materials indicating that he had cirrhosis and that his condition was painful. Hearing Examiner dismissed the complaint because Complainant never showed that his condition caused/explained his failure to appear. Ivy v. Belmont Nursing & Rehabilitation Center, MEOC Case No. 20032225 (Ex. Dec. 10/28/04).

The Complainant alleged race, color, sex, age, and student status discrimination in employment against Respondent. Following a Pre-hearing conference where the Respondent did not appear and did not respond timely to a subsequent Order to Show Cause, the Hearing Examiner rejected Respondent's argument that it was confused regarding its necessary appearances, and entered a default judgment on liability against the Respondent. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

Complainant alleged that the Respondent discriminated against him on the basis of his disability when it terminated his employment. The Respondent denied discriminating against the Complainant on the basis of his disability, and asserted, among other things, that the Complainant violated the Respondent's attendance policy. Subsequent to attending a Pre-Hearing Conference, the Respondent failed to submit a written answer within 10 days of the issuance of the Notice of Hearing. Eventually, the Respondent did file a written response to the Notice of Hearing. The Hearing Examiner found that this belated response sufficiently demonstrated a renewed intent to fully comply with future orders and therefore a sanction for the Respondent's initial failure to respond was unnecessary, especially given the fact that the Respondent was not represented by counsel. Still, the Hearing Examiner recognized that the Respondent's initial failure to respond generated additional expenses for the Complainant. Accordingly, the Hearing Examiner ordered the Complainant to file an accounting and explanation of additional discovery expenses which the Respondent will be required to pay, unless it objects to the accounting within one week of its receipt. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. 7/30/08).

The parties attended a Pre-Hearing Conference at which the Hearing Examiner, among other things, stressed the importance of the Respondent's answer to the forthcoming Notice of Hearing. Subsequent to the Pre-Hearing Conference, both parties obtained counsel. Counsel for the Complainant filed a Motion for Default Judgment or for sanctions in the alternative due to the Respondent's failure to answer the Notice of Hearing. Upon review of the record, the Hearing Examiner concluded that the facts of the case did not warrant the issuance of a default judgment on liability. Rather, in granting the Complainant's motion for sanctions, the Hearing Examiner permitted the Respondent's cross-examination of witnesses and the limited introduction of documentary evidence, but precluded the Respondent from submitting direct evidence as part of its case. Rhyne v. Kelley Williamson's Mobil, MEOC Case No. 20092086 (Ex. Dec. 03/30/11).

The Hearing Examiner issued a Notice of Pre-Hearing Conference by sending the parties a Notice by certified mail. The Notice set the date for the Pre-Hearing Conference for April 29, 2011. The Complainant's Notice was returned to the Equal Opportunities Division (EOD) as "unclaimed" on May 2, 2011. Prior to the Notice's return to the EOD, the U.S. Post Office attempted to deliver it twice leaving notices of attempted delivery. The Complainant did not appear at the Pre-Hearing Conference. In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not receive the Notice of Pre-Hearing Conference. The Hearing Examiner found that the Complainant did not adequately explain her failure to retrieve the Notice from the Postal Service. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the EOD, and that the Commission does not generally reopen claims where the failure to appear is due to a Complainant's own conduct. Since the Complainant's receipt of the Notice of Pre-Hearing Conference was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Lawler v. Madison Metropolitan School District, MEOC Case No. 20102194 (Ex. Dec. 07/20/11).

The Hearing Examiner concluded that the Complainant failed to provide an adequate excuse for her non-appearance at the Pre-Hearing Conference. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the Equal Opportunities Division (EOD); and found that the Complainant should have notified the EOD of her impending absence from the mailing address she had initially provided and that she should have informed the EOD of her new mailing address in the Wisconsin Dells.  Since the Complainant's receipt of the Notice was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Hamidi v. Dreamweavers, Inc., MEOC Case No. 20112071 (Ex. Dec. 08/16/12).

740.7 Pre-Hearing Disclosure of Witnesses and Exhibits

Prior to hearing on the issue of damages, Complainant indicated that he wished to call two expert witnesses who were not previously identified in connection with earlier proceedings regarding the question of liability. The Respondent moved to exclude their testimony, arguing that the Complainant should be limited to testimony already given. The Hearing Examiner ruled that the Complainant would be allowed to present the testimony of his expert witnesses. Damages were being determined on remand from the full Equal Opportunities Commission. This action of the Commission had altered the stance between the parties, creating new obligations to present all relevant materials on the issue of damages. The Hearing Examiner reasoned that to artificially limit the record on this issue would prevent the Commission from making a fully considered judgment. Duncan v. H. James & Sons, Inc., MEOC Case No. 20022040 (Comm. Dec. 5/27/04, Ex. Dec. 12/22/03, 2/11/05).

The Complainant alleged that he suffered continuous racial and ethnic harassment while employed by the Respondent and that he was constructively discharged as a result. Subsequent to a Pre-Hearing Conference, the Respondent submitted a Motion to Strike the testimony of Complainant's expert witness. The Hearing Examiner found that the Respondent provided insufficient evidence to support the contention that the Complainant's expert witness should be barred from testifying. However, the Hearing Examiner agreed that the Complainant's expert should not be permitted to offer an opinion as to liability. Accordingly, the Hearing Examiner denied the Respondent's motion, but cautioned that expert testimony as to whether discrimination occurred would not be allowed. Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

740.8 Withdrawals and Settlements

Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).

740.9 Motions for Summary Judgment or Dismissal

On a motion for summary judgment, the Hearing Examiner ruled that the ordinance and rules of the Commission do not allow summary judgment except where the motion relates to jurisdiction of the Commission. When the motion goes to the merits of the case, both parties have a right to have their positions heard and determined by the Hearing Examiner once the case is certified to hearing. Rhone v. Marquip, MEOC Case No. 20967(Ex. Dec. on summary judgment 4/5/89, on liability 7/31/89).

The Hearing Examiner denied Respondent's motion to dismiss the complaint based on the exclusivity principle of the Workers Compensation Act. The Wisconsin Supreme Court in Byers v. LIRC, 208 Wis. 2d 388 (1997) determined that the WCA was not necessarily the exclusive remedy for claims of sexual harassment. The Hearing Examiner determined that though the Byers decision applied to the Wisconsin Fair Employment Act, the rationale applied equally to the Madison EOO. Harvey v. Marshall Erdman & Associates, MEOC Case No. 21614 (Ex. Dec. 5/9/97).

Respondents' moved to dismiss complaints of discrimination on the basis of political belief (trade unionism) based on preemption by federal law. The Complainants had filed unfair labor practice complaints at approximately the same time as their Commission complaints. The Hearing Examiner granted Respondents' motion, applying the Supremacy Clause of the U.S. Constitution and well-settled federal law on preemption. Moyer, Carey and Kaatz v. Thrift Painting and Genesis Companies Inc., MEOC Case Nos. 22440, 22441, 22447, 22448, 22449, and 22450 (Ex. Dec. 7/7/97).

Complainant, a lesbian, alleged that because of her sexual orientation the Respondent terminated her employment earlier than expected and failed or refused to hire her, despite the fact she believed she was qualified. Respondent moved to dismiss because Respondent claimed the alleged acts of discrimination occurred outside of the 300 day statute of limitations.

The hearing examiner granted and denied the motion in part. The hearing examiner ruled that the alleged acts of discrimination relating to actions occurring before the Respondent had knowledge of the Complainant's sexual orientation were barred because knowledge of the protected class is an essential element of Complainant's primae facie case. The hearing examiner permitted claims arising after Respondent's knowledge of Complainant's sexual orientation that were outside of the 300 day limit to proceed, because Complainant successfully alleged a continuing course of conduct on part of the Respondent. Steinbach v. Meriter Health Services, Inc., MEOC Case No. 22125 (Ex. Dec.11/11/97, on motion to dismiss 2/19/96).

In this age and sex discrimination case, the Respondent moved to dismiss the complaint against the American Red Cross (ARC) for lack of subject matter jurisdiction. The Hearing Examiner granted the Respondent's motion on the grounds that ARC is not an "integrated employer" and ARC did not exercise control over the terms and conditions of the Complainant's work. The Respondent also moved for summary judgment on the merits in favor of the American Red Cross, Badger Chapter. However, the Hearing Examiner denied this motion on the ground that once a case has been certified to a hearing on the merits, the case must go to hearing. Birk v. American Red Cross, Badger Chapter, MEOC Case No. 20062041 (Ex. Dec. 4/9/10).

In this age discrimination case, the Respondent moved to dismiss the complaint against the American Red Cross (ARC) for lack of subject matter jurisdiction. The Hearing Examiner granted the Respondent's motion on the grounds that ARC is not an "integrated employer" and ARC did not exercise control over the terms and conditions of the Complainant's work. The Respondent also moved for summary judgment on the merits in favor of the American Red Cross, Badger Chapter.  However, the Hearing Examiner denied this motion on the ground that once a case has been certified to a hearing on the merits, the case must go to hearing. As for the Respondent's motion to dismiss individual defendants, the Hearing Examiner held that he would take the motion under advisement pending further development of the record. Schwartz v. American Red Cross, Badger Chapter, MEOC Case No. 20062003 (Ex. Dec. 4/9/10).

The Respondent argued that the Federal Arbitration Act requires the Madison Department of Civil Rights, Equal Opportunities Division to either dismiss or stay the Complainant's allegations of age discrimination and retaliation. The Respondent requested that the Hearing Examiner order the parties to submit to mediation and arbitration pursuant to the Respondent's Employee Dispute Resolution Plan. The Hearing Examiner found that the Plan constituted a valid agreement to resolve disputes arising under the Plan and that it was neither procedurally nor substantively unconscionable. Thus, the Hearing Examiner ordered the parties to submit to mediation and arbitration. However, the Hearing Examiner stayed rather than dismissed the case to ensure that the Complainant had a forum available for review of the arbitrator's decision. Witten v. Firestone Complete Auto Care, MEOC Case No. 20092026 (Ex. Dec. 9/8/10).

The Complainant alleged that the Respondent discriminated against her in terms and conditions of employment on account of her race and color. A hearing on the merits was scheduled for September 21, 2010 at 9:00 AM. On September 21, the Complainant failed to appear on time. As a result, the Hearing Examiner concluded proceedings, took the Respondent's motion to dismiss under advisement, and issued an Order to Show Cause. In her answer to the Order to Show Cause, the Complainant insisted that she did not receive the Notice of Hearing issued April 8, 2010. However, the Complainant submitted a letter to the Equal Opportunities Division on May 4, 2010 acknowledging receipt of the Notice of Hearing. In the Decision and Order on Respondent's Motion to Dismiss, the Hearing Examiner concluded that the Complainant failed to set forth a good faith explanation for her belated appearance at the hearing. The Hearing Examiner dismissed the Complainant's case for failure to show cause. McCann-Smith v. St. Mary's Hospital, MEOC Case No. 20092160 (Ex. Dec. 11/3/10).

The Complainant alleged that the Respondent, in denying his application for Section 8 housing, discriminated against him on the bases of color, arrest record, and conviction record. In its answer to the complaint, the Respondent moved to dismiss the case for lack of personal jurisdiction and for lack of subject matter jurisdiction. The Hearing Examiner found that the Equal Opportunities Division (EOD) has personal jurisdiction over the Respondent because, although the Respondent may be an independent body politic, it is nevertheless an agent of the City of Madison. The provisions of the Equal Opportunities Ordinance prohibit discrimination in the provision of housing by the City of Madison or by an agent of the City. As for the Respondent's motion to dismiss for lack of subject matter jurisdiction, the Hearing Examiner held that a jurisdictional determination would be premature because the Respondent's motion interrupted the EOD's investigative process. Therefore, the Hearing Examiner remanded the Complainant's claims of arrest and conviction record discrimination to an Investigator/Conciliator for further investigation and the issuance of an Initial Determination. The Hearing Examiner ordered that the Complainant's color discrimination claim be transferred to either the Department of Workforce Development or to Housing and Urban Development. Brown v. CDA, MEOC Case No. 20101085 (Ex. Dec. 01/20/2011).

In a case involving allegations of retaliation for the exercise of a right protected by the ordinance, the Respondent, a school district, moved to dismiss the complaint for lack of subject matter jurisdiction. The Respondent's contentions supporting dismissal fall into three general assertions. First, the Respondent argues that matters of employment, such as hiring and firing personnel, are matters of state wide concern and therefore such matters are beyond the purview of the city's local equal opportunities ordinance. Second, the Respondent maintains that it is an agent of the state and as such it is not subject to the Equal Opportunities Division's (EOD) jurisdiction. Third, the Respondent contends that, even if the EOD has jurisdiction, a recently enacted state law expressly divests the EOD of the authority to award compensatory or punitive damages against a school district. The Hearing Examiner found that the issue of employment discrimination constitutes both a statewide and a local concern. Since the Respondent failed to demonstrate a discernible conflict of laws, the Hearing Examiner concluded that the EOD is permitted to enforce the ordinance. In addition, while conceding that the EOD is without jurisdiction to issue punitive damages awards, the Hearing Examiner found that state law neither expressly nor impliedly withdraws power from the EOD to issue an award of compensatory damages against a school district. Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 06/09/11).

The Hearing Examiner issued a Notice of Pre-Hearing Conference by sending the parties a Notice by certified mail. The Notice set the date for the Pre-Hearing Conference for April 29, 2011. The Complainant's Notice was returned to the Equal Opportunities Division (EOD) as "unclaimed" on May 2, 2011. Prior to the Notice's return to the EOD, the U.S. Post Office attempted to deliver it twice leaving notices of attempted delivery. The Complainant did not appear at the Pre-Hearing Conference. In response to the Hearing Examiner's Order to Show Cause, the Complainant requested that the complaint not be dismissed and explained that she had not receive the Notice of Pre-Hearing Conference. The Hearing Examiner found that the Complainant did not adequately explain her failure to retrieve the Notice from the Postal Service. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the EOD, and that the Commission does not generally reopen claims where the failure to appear is due to a Complainant's own conduct. Since the Complainant's receipt of the Notice of Pre-Hearing Conference was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Lawler v. Madison Metropolitan School District, MEOC Case No. 20102194 (Ex. Dec. 07/20/11).

In this matter, the Respondent filed a motion similar to that which it filed in Rhyne v. Madison Metropolitan School District, MEOC Case No. 20092030 (Ex. Dec. 6/9/11). In addition to the grounds stated in the earlier motion, in the present matter, the Respondent contended that the Consent Decree entered in State ex rel. Area Vocational, Technical and Adult Education District No. 4, by its Board v. Equal Opportunities Commission of the City of Madison (the MATC case) required similar treatment of the Respondent. The Hearing Examiner incorporated by reference his decision in Rhyne and found that the Respondent's argument concerning the Consent Decree in the MATC case was inadequate to deprive the Madison Department of Civil Rights, Equal Opportunities Division of jurisdiction in this matter. Specifically, there is no evidence of what motivated the parties to enter into the Consent Decree and the Respondent posited only a superficial similarity between it and the MATC. Accordingly, the Hearing Examiner dismissed the Respondent's motion. Banks v. Madison Metropolitan School District, MEOC Case No. 20102172 (Ex. Dec. 8/3/11).

The Complainant asserted that the Respondent discriminated against him on account of his credit history, arrest record and conviction record when it offered him employment, but later rescinded the offer after the results of a background check. The Respondent moved to dismiss the allegations of the complaint for a lack of jurisdiction. The Respondent asserted that the alleged adverse employment decision occurred outside the City of Madison and, therefore, the Equal Opportunities Division lacks geographic jurisdiction over the complaint. In contrast, the Complainant asserted that the question was not where the employment decision took place, but rather where its effects are felt.

The Hearing Examiner found that the Complainant's primary job duties would have been performed within the City of Madison. The Hearing Examiner found that despite the Complainant's residence in Columbus, his presence in Madison to fulfill the duties of the job would have produced a positive economic impact in the City of Madison further demonstrating grounds for the Department's jurisdiction. Accordingly, the Hearing Examiner denied the Respondent's motion. Severson v. Kaplan, Inc., MEOC Case No. 20112122 (Ex. Dec. 12/22/11).

The Complainant alleged that he suffered continuous racial and ethnic harassment while employed by the Respondent and that he was constructively discharged as a result. Subsequent to a Pre-Hearing Conference, the Respondent submitted two motions: a Motion to Strike and a Motion for Summary Judgment. The Hearing Examiner found that the Respondent's Motion to Strike failed to observe the spirit of the Equal Opportunity Division (EOD)'s more relaxed approach to litigation and dismissed the motion as unduly strict. As for the Respondent's Motion for Summary Judgment, the Hearing Examiner reiterated that the EOD does not accept such motions and treated the motion as one asserting lack of jurisdiction. Ultimately, the Hearing Examiner dismissed the motion on the grounds that the Respondent failed to demonstrate that the Complainant's claims fell outside the 300-day statute of limitations under Equal Opportunities Commission Rule 3.11. Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

The Hearing Examiner concluded that the Complainant failed to provide an adequate excuse for her non-appearance at the Pre-Hearing Conference. The Hearing Examiner recognized that the Commission places a significant burden on Complainants to remain in contact with the Equal Opportunities Division (EOD); and found that the Complainant should have notified the EOD of her impending absence from the mailing address she had initially provided and that she should have informed the EOD of her new mailing address in the Wisconsin Dells.  Since the Complainant's receipt of the Notice was not beyond her control, the Hearing Examiner granted the Respondent's motion to dismiss the complaint. Hamidi v. Dreamweavers, Inc., MEOC Case No. 20112071 (Ex. Dec. 08/16/12).

After the Investigator/Conciliator issued an Initial Determination of probable cause that the Respondent had discriminated against Complainant in employment on the basis of his conviction record, and attempts at conciliation failed, the matter was transferred to the Hearing Examiner for further proceedings.

At the Pre-Hearing Conference, the Complainant indicated that he wanted to file for judgment of the pleading based on the existing record, and shortly thereafter filed further supportive materials. Respondent filed both a response to Complainant and a request for dismissal of the complaint due to lack of standing. The Hearing Examiner dismissed both motions.

Complainant's request is based on the procedures of the Wisconsin Department of Workforce Development (DWD) Equal Rights Division (ERD), whose processes and procedures are entirely inapplicable to complaints filed with the Department of Civil Rights. Provisions of the Wisconsin Fair Employment Act Wis. Stats. 111.30 et seq. do not mandate any particular outcome for a complaint filed under the Madison Equal Opportunities Ordinance. Case law developed under different statutes may be useful in assisting a decision maker to the extent that similar purposes and similar language may be helpful in enlightening interpretation of a piece of legislation, but for the most part, decisions interpreting different laws do not have binding results on the interpretation of a law at different level of government. See McMullen v. LIRC, 148 Wis. 2d 270, 434 N.W. 830 (Ct. App. 1988).

Respondent's motion is framed as a motion to dismiss due to Complainant's lack of standing because the record does not demonstrate that Complainant actually applied for employment, but given Respondent's arguments which address the sufficiency of the arguments in the record rather than the Department's jurisdiction, the Hearing Examiner sees the Respondent's motion as one for summary judgment. Respondent contends that the Initial Determination of probable cause was erroneous and that a hearing should not be required. The Rules of the Equal Opportunities Commission at rule 5.21 make clear that only a finding of no probable cause is appealable. The rules are structured in this manner to protect the due process rights of both parties, in that the Complainant has the opportunity to challenge a finding of no probable cause that would otherwise dispose of the Complainant's interests, while the Respondent's rights are protected by assuring it the right to defend itself at a hearing.

The Hearing Examiner treated both requests as forms of motion for summary judgment, and informed both parties that the Commission did not accept motions for summary judgment unless they go to the jurisdiction of the Department. This has been the position of the Department as far back as 1989. In the case of Rhone v. Marquip, MEOC Case No. 20967 (Ex. Dec. on summary judgment 04/05/89), the Hearing Examiner found that the Rules of the Equal Opportunities Commission state a preference to hearing once a complaint has been certified to hearing, and told the Complainant who had moved for summary judgment that such motions were not available. The Rhone decision has been followed by subsequent hearing Examiners. See Vivas v. Summit Credit Union, MEOC Case No. 20112019 (Ex. Dec. 05/09/12, Ex. Dec. on jurisdiction 05/09/12).

The Hearing Examiner found no merit in either party's motion, and proceeded to hearing. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

750 Role of the Examiner

750.1 Generally

MEOC proceedings are not necessarily covered by the procedures in Chapter 227, Wis. Stats. State ex. rel. Badger Produce v. MEOC (Matlack), supra.

An examiner has discretion to: (1) take interim motions, such as a motion to dismiss, under advisement; and (2) call witnesses to elicit and clarify evidence necessary to a clear presentation of the issues. Goldsberry v. ChemLawn, MEOC Case No. 2967 (Ex. Dec. 11/21/83);

. . . and (3) to question witnesses called by the parties. State ex. rel. Badger Produce v. MEOC (Matlack), supra.

Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).

Whereas the record in this matter is sparse and frequently confusing, neither party was represented at the time of the hearing, and neither party appeared to grasp what was expected or required for either side to prevail, the Hearing Examiner may allow an unrepresented party to present his or her claim in a manner that does not strictly follow customary procedure, but in making such allowances, the Hearing Examiner must remain mindful of his duties to properly apply the accepted standards of proof and determine whether each party has met his or her burden of proof and production. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

The flexibility a Hearing Examiner has in the application of the burdens or in the regulation of the hearing process is always constrained by the requirements of due process, equity and fundamental fairness to both parties. Sveum v. Guanajuatence, MEOC Case No. 20112102 (Ex. Dec. 8/1/2013).

The Hearing Examiner may allow an unrepresented party to present his or her claim in a manner that does not strictly follow customary procedure, but in making such allowances, the Hearing Examiner must remain mindful of his duties to properly apply the accepted standards of proof and determine whether each party has met his or her burden of proof and production. In determining whether Complainant has met his burden of proof, the Hearing Examiner must weigh the evidence presented by both parties and make judgments as to the relative credibility of the parties. If the Complainant does not convince the Hearing Examiner that his version of events is more likely than not, he fails to meet his burden of proof and he fails to demonstrate discrimination. This includes a circumstance in which the Complainant’s version of events is only as likely as that proposed by the Respondent. In this instance, Complainant failed to meet the burdens apportioned to him by the legal process. Evans-Jackson v. Goodman Community Center, MEOC Case No. 20112076 (Ex. Dec. 7/3/2013).

The record in this matter is extremely sparse, especially from the perspective of the Complainant, who pursued this complaint pro se. While the Hearing Examiner may extend certain procedural requirements to assist an unrepresented party, the Hearing Examiner may not reduce the standards of proof to assist an unrepresented party. Neal v. US Bank, MEOC Case No. 20112019 (Ex. Dec. 03/08/2013).

750.2 Disqualification of the Examiner

760 Procedures at Hearing

760.1 Parties' Right to Representation

760.2 Evidence

760.21 Generally

A petition allegedly signed by co-employees of the complainant was not admissible where none of the signatories nor the complainant testified about it at the hearing. Donahue v. MG&E, MEOC Case No. 2560 (Comm. Dec. 9/10/81, Ex. Dec. 2/9/81).

Just as adherence to a collective bargaining agreement will not necessarily shield an employer from liability for discrimination, deviation from a collective bargaining agreement will not necessarily establish that discrimination has occurred. Stanton v. Dairy Equipment, MEOC Case No. 2540 (Ex. Dec. 6/9/82).

Where a hearing has proceeded to completion, the focus in deciding the case is on whether the complainant has met his or her ultimate burden (as opposed to his or her interim burden) of proving discrimination. Sanders v. U-Haul Company of Western Wisconsin, supra, citing U.S. Postal Service Board of Governors v. Aikens, 103 S. Ct. 1478 (1983).

The Commission will not hold open the record or reopen the record to permit the taking of expert testimony on statistical evidence in a disparate treatment case when such evidence would likely be imprecise and incomplete due to a lack of comparative data and when the Complainant could have and should have been prepared to present such statistical evidence at the time of hearing. Steinbach v. Meriter Health Services, Inc., supra (Ex. Dec. 11/11/97, Ex. Dec. on motion to dismiss, 2/19/96).

The Commission affirmed dismissal of Complainant's race and retaliation claims against Respondent at hearing when the Complainant refused to call any witness or otherwise submit any evidence in support of her discrimination claims, despite the Hearing Examiner's repeated promptings to proceed. Duff v. JC Penney Stores, MEOC Case No. 20032069 (Comm. Dec. 8/25/06).

760.22 Admissibility

When determining whether polygraph results are admissible for a hearing certain criteria must be fulfilled. First, a written stipulation must be signed by the parties including the consent of the individual examined. Next, even if the stipulation is given the hearing examiner has discretion as to whether the polygraph examination results will be admitted or not. If the hearing examiner decides to admit the results, the individual who administered the exam is subject to cross-examination. Hargons v. Gardner Baking, MEOC Case No. 2619 (Ex. Dec. on admissibility of results of polygraph examination 12/22/80).

760.23 Matters Found Probative or Relevant

The Hearing Examiner excluded evidence of a previous complaint of discrimination against the Respondent filed with ERD on grounds of irrelevancy because the complaint had received a finding of no probable cause which had not been appealed, and because the allegations of the complaint were not similar to the allegations of Complainant's complaint. Hackett v. Russ Darrow, MEOC Case No. 3356 (Ex. Dec. 8/5/97).

Complainant, a fifty-eight (58) year old female who was terminated, filed a claim of discrimination against Respondent based on age and sex in regards to terms and conditions of employment and termination of employment. The hearing examiner concluded Respondent had discriminated against Complainant because her supervisor was overheard making disparaging comments relating to Complainant's age and because statistics indicated that the Respondent overwhelmingly promoted, hired and transferred individuals who were 35 years and under.

The hearing examiner did not find that Respondent discriminated against Complainant because of her sex despite Complainant's ability to establish a prima facie case. This was because statistics for promotions and terminations relating to sex were not as probative as compared to the age discrimination statistics. May v. State Medical Society, MEOC Case No. 2584 (Comm. Dec. 4/21/82, Ex. Dec. 10/20/81) See Painters Union Local 802 v. Madison Newspapers Inc.

760.24 Official Notice

760.25 Rebuttal Evidence

760.3 Dismissal of Complaint at Close of Complainant's Case

Though Respondent failed to appear, Complainant's claim based on race was dismissed because the Complainant presented no evidence showing he was treated differently from other employees not of his race. The Hearing Examiner found Respondent did discriminate against the Complainant on the basis of previous conviction record and age. Brooks v. I.S.S. and Ed Hasmer, MEOC Case No. 21535 (Ex. Dec. 5/13/93).

Complainant's complaint was dismissed after she refused to call any witnesses or present any other evidence to be entered into the record at a hearing on the merits. Duff v. JC Penney Stores, MEOC Case No. 20032069 (Ex. Dec. 4/13/06, Comm. Dec. 8/25/06).

760.4 Failure to Appear at Hearing

Where an employer fails to appear at a prehearing or hearing, the examiner may issue findings, conclusions and order based on the complainant's prima facie case. Duarte v. Silver Dollar Bar, MEOC Case No. 3091 (Ex. Dec. 5/10/83); Carroll v. Bayview Community Center, MEOC Case No. 2491 (Ex. Dec. 9/5/80).

The Hearing Examiner dismissed the complaint when the Complainant failed to appear at the scheduled hearing. The Complainant filed an appeal based on his indigent status as a resident of California, claiming the Commission's rules requiring his presence were too strict and his failure to appear should be excused. The Commission affirmed the Hearing Examiner's finding that the Complainant's indigent status did not constitute an excuse for failure to comply with Commission rules. Hieb v. Woodman's, MEOC Case No. 21148 (Comm. Dec. 3/27/92, Ex. Dec. 10/1/91).

The complaint was dismissed when Complainant failed to appear at the hearing and failed to provide a reason for missing the appearance. The Commission upheld the decision in its entirety. Seals v. Madison Convalescent Center, MEOC Case No. 21357 (Comm. Dec. 1/9/92, Ex. Dec. 8/5/91).

The Complainant failed to appear at time of hearing due to lack of representation and failed to offer sufficient reason for his missed appearance. The Hearing Examiner found that the lack of representation at time of hearing does not constitute an emergency within the meaning of the Notice of Hearing which would require rescheduling. The Respondent made an offer of proof that there was no discrimination and the complaint was dismissed. Morris v. Madison Kipp Corp., MEOC Case No. 21302 (Ex. Dec. 11/20/92).

The Complainant's complaint of discrimination based on his national origin/ancestry was dismissed when he failed to appear at the hearing. Verdecia v. McDonald's Restaurant, MEOC Case No. 21661 (Ex. Dec. 5/2/93).

Though Respondent failed to appear, Complainant's claim based on race was dismissed because the Complainant presented no evidence showing he was treated differently from other employees not of his race. The Hearing Examiner found Respondent did discriminate against the Complainant on the basis of previous conviction record and age. Brooks v. I.S.S. and Ed Hasmer, MEOC Case No. 21535 (Ex. Dec. 5/13/93).

The Complainant prevailed on her discrimination claim based on race and sex in regard to termination from employment. The Respondent alleged that Complainant was terminated due to violation of its telephone restrictions. The Hearing Examiner found that a White male employee was not terminated under similar circumstances. However, the Respondent was not found to have discriminated against Complainant on the basis of race or sex in failing to offer her a position performing floor care and by following her and another co-worker around their assigned areas, as she was not qualified for the floor care position, and Respondent was exercising its normal supervisory authority by checking on her work. The Respondent failed to appear at the hearing. The Complainant was awarded $16,666.80 in back pay, $2,000.00 in compensatory damages and reinstatement. Franklin v. Capital Services, MEOC Case No. 21490 (Ex. Dec. 5/14/93).

The Hearing Examiner later dismissed the complaint finding that the Complainant had not shown good cause for her failure to appear at the time of hearing. The Complainant had received notice of the hearing and had failed to request postponement prior to the time of hearing. The Commission affirmed the Hearing Examiner's decision, finding that Complainant had failed to show good cause for her failure to appear at the hearing. Foy v. Madison Rehabilitation & Convalescent Center, MEOC Case No. 21831 (Comm. Dec. 6/5/95, Ex. Dec. 8/29/94, Ex. Interim Dec. 7/5/94).

The Complainant alleged race, color, sex, age, and student status discrimination in employment against Respondent. Following a Pre-hearing conference where the Respondent did not appear and did not respond timely to a subsequent Order to Show Cause, the Hearing Examiner rejected Respondent's argument that it was confused regarding its necessary appearances, and entered a default judgment on liability against the Respondent. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

The Complainant alleged that the Respondent discriminated against her in terms and conditions of employment on account of her race and color. A hearing on the merits was scheduled for September 21, 2010 at 9:00 AM. On September 21, the Complainant failed to appear on time. As a result, the Hearing Examiner concluded proceedings, took the Respondent's motion to dismiss under advisement, and issued an Order to Show Cause. In her answer to the Order to Show Cause, the Complainant insisted that she did not receive the Notice of Hearing issued April 8, 2010. However, the Complainant submitted a letter to the Equal Opportunities Division on May 4, 2010 acknowledging receipt of the Notice of Hearing. In the Decision and Order on Respondent's Motion to Dismiss, the Hearing Examiner concluded that the Complainant failed to set forth a good faith explanation for her belated appearance at the hearing. The Hearing Examiner dismissed the Complainant's case for failure to show cause. McCann-Smith v. St. Mary's Hospital, MEOC Case No. 20092160 (Ex. Dec. 11/3/10).

760.6 Failure to Respond or Appear

The Complainant alleged race, color, sex, age, and student status discrimination in employment against Respondent. Following a Pre-hearing conference where the Respondent did not appear and did not respond timely to a subsequent Order to Show Cause, the Hearing Examiner rejected Respondent's argument that it was confused regarding its necessary appearances, and entered a default judgment on liability against the Respondent. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

760.9 Miscellaneous

Where the Commission had yet to commence an investigation, a motion to enjoin the enforcement of the Ordinance should be denied. State ex. rel. Northport Apts. v. MEOC (Carey), No. 163-429 (Dane County Cir. Ct., 7/78).

770 Record of Hearing, Decisions and Orders

770.1 Hearing Record; Transcripts

770.2 Proposed Findings of Fact, Conclusions of Law and Orders

770.3 Delay in Issuance of Decision

770.4 Miscellaneous

In granting Respondent's motion to dismiss the Complainant's appeal, the Commission relied upon the mandatory language and specific terms in the Briefing Schedule, and determined that Complainant's failure to file an appellate brief warranted dismissal of the Complainant's appeal. The Commission noted that while the mandatory language of the Briefing Schedule warranted a harsh remedy, the Complainant was not afforded any latitude in responding because he was represented by counsel who should have known of the effect of the mandatory language. Johnson v. Webcrafters, MEOC Case No. 20042097 (Comm. Dec. 8/25/06).

780 Reconsideration, Rehearing

After the Commission adopted the hearing examiner's ruling that the Commission was without jurisdiction for the allegations in Complainant's case, the Complainant filed a request for the Commission to reconsider its final decision and order. The Commission concluded that Complainant was given a full opportunity to present his position and that the Commission determined that it reviewed the record in its entirety. As a result, the Commission denied Complainant's request to reconsider its final decision and order. Schenk v. Domestic Abuse Intervention Services, Inc., MEOC Case No. 03384 (Comm. Dec. on request to reconsider final order 9/27/99).

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

790 Appeal and Review

790.1 Decisions Appealable to the Commission

It is for the Commission and not a reviewing court to judge the credibility of witnesses. State ex. rel. Badger Produce v. MEOC (Matlack), supra.

Following a Decision and Interim Order wherein the Hearing Examiner entered a default judgment on liability, the Respondent appealed to the Commission. Utilizing its discretion, the Commission determined that it would address Respondent's appeal on liability once the issue of damages was resolved, thus reviewing at a later date the complete record in the case. The Commission stayed Respondent's appeal and remanded the complaint to the Hearing Examiner for proceedings on damages. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

790.2 Procedures for Review by the Commission

In granting Respondent's motion to dismiss the Complainant's appeal, the Commission relied upon the mandatory language and specific terms in the Briefing Schedule, and determined that Complainant's failure to file an appellate brief warranted dismissal of the Complainant's appeal. The Commission noted that while the mandatory language of the Briefing Schedule warranted a harsh remedy, the Complainant was not afforded any latitude in responding because he was represented by counsel who should have known of the effect of the mandatory language. Johnson v. Webcrafters, MEOC Case No. 20042097 (Comm. Dec. 8/25/06).

Following a Decision and Interim Order wherein the Hearing Examiner entered a default judgment on liability, the Respondent appealed to the Commission. Utilizing its discretion, the Commission determined that it would address Respondent's appeal on liability once the issue of damages was resolved, thus reviewing at a later date the complete record in the case. The Commission stayed Respondent's appeal and remanded the complaint to the Hearing Examiner for proceedings on damages. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

790.3 Requirement that the Commission Consult with the Examiner Regarding Credibility Impressions

Due process requires municipal agencies to adequately explain reversals of hearing examiner's findings of fact . . . and where credibility of witnesses is an issue due process requires:

That the record affirmatively show that the commission had the benefit of the examiner's personal impressions of the material witnesses . . . and the hearing examiner's personal impressions may take the form of either adequate notes of the examiner or personal consultation with him. Laboratory Consulting, Inc. v. MEOC, et al., supra.

In a case where the Commission ruled that Complainant had been retaliated against both during her employment and in regard to her discharge, on appeal the Circuit Court remanded the case to the Commission to consider whether the Commission's resolution of credibility issues required that it consult with the Hearing Examiner. On remand, the Commission again found that the Respondent was liable to the Complainant for having discriminated against her in violation of the ordinance, but modified and reduced its back pay award and its order for reinstatement, determining that though the Respondent did retaliate, the Complainant would likely have been fired as a result of poor performance within a short time. The Commission also awarded Complainant interest at the rate of 12% on her back pay award. Hilgers v. Laboratory Consulting, Inc., MEOC Case No. 20277 (Comm. Dec. 11/18/85, 11/10/86, 3/29/89, Ex. Dec. 4/11/85, 7/12/85); Laboratory Consulting, Inc., v. Hilgers and MEOC and City of Madison, 85 CV 6300 (Dane County Cir. Ct. 8/20/86); Hilgers v. Laboratory Consulting, Inc. and MEOC, and Laboratory Consulting, Inc. v. MEOC and City of Madison, 86 CV 6488 and 86 CV 6673 (Dane County Cir. Ct. 8/24/87); Hilgers v. Laboratory Consulting, Inc. and MEOC, and Laboratory Consulting, Inc. v MEOC and City of Madison, No. 87-2266 (Ct. App. 12/22/88).

790.4 Judicial Review

The Court will review that factual evidence accepted by the Commission as credible to determine if it is substantially related to the finding or if a reasonable person might reach the decision that the Commission did. Madison Gen. Hosp. v. MEOC (Dayton), No. 81-CV-1925 (Dane County Cir. Ct., 7/9/82).

Where the Commission had remanded one portion of a case back to the agency hearing examiner for further review but had dismissed another portion of the case, the portion that was dismissed was ripe for appeal and a petition for review of that (dismissed) portion should have been filed within 30 days of receipt of the Commission decision. Sec. 68.13(1), Wis. Stats. Maxson v. MEOC (Means Servs.), No. 84 CV 4150 (Dane County Cir. Ct., 7/18/85). [NO LINK AVAILABLE]

The scope of an appellate court's review of a certiorari decision is the same as a trial court's (in a case appealed to the court originating from a municipal administrative agency decision). In certiorari review, the reviewing court is limited to determining:

(1) whether the Commission kept within its jurisdiction;

(2) whether it acted according to law;

(3) whether its actions were arbitrary, oppressive or unreasonable and represented its will and not its judgment; and

(4) whether the evidence was such that it might reasonably make the order or determination in question. Fed. Rural Elec. Ins. v. MEOC, et al., 131 Wis. 2d. 189 (1986)

To determine whether the Commission acted according to law required the court to construe the Madison Equal Opportunities Ordinance and apply the ordinance to the facts . . . and the court must also determine whether the evidence was such that the Commission might reasonably make its determination and whether that determination is supported by substantial evidence in the record. Fed. Rural Elec. Ins., v. MEOC, et al., supra

The Commission's findings of fact will be sustained if any reasonable view of the evidence will support them. State ex. rel. Badger Produce v. MEOC (Matlack), supra.

In a case where the Commission ruled that Complainant had been discriminated against on the basis of his physical appearance and had been retaliated against, the Respondent appealed the Commission's Order and the Complainant sought to intervene in the Circuit Court's review. The Circuit Court denied the Complainant's motion to intervene and the Complainant appealed that denial. The Court of Appeals affirmed the Circuit Court's decision, specifically finding that municipal administrative decisions must be appealed by writ of certiorari within 30 days of their issuance and that the Complainant had failed to appeal the Commission's decision in a timely manner. The Court of Appeals also found that the Commission could adequately represent the Complainant's interests in the Circuit Court review, and that the Complainant's participation was not mandatory, finding that the Complainant's participation in the appeal was likely to generate unnecessary delay. The Court of Appeals found that the Circuit Court had properly exercised its discretion in denying Complainant's permissive intervention.

The Circuit Court determined that the Commission had exceeded its authority in finding discrimination both on the basis of physical appearance and retaliation. The Court determined that the Respondent had acted on its belief that the Complainant's conduct was contrary to the earlier settlement agreement. This conduct included the Complainant's wearing makeup and jewelry while on the Respondent's premises. The Court reasoned that because the Respondent's action was motivated by the Complainant's conduct and not by discrimination or retaliation, the complaint was beyond the authority of the Commission. The Court ordered the complaint dismissed.

The Commission did not appeal the Circuit Court decision. However, the Complainant sought to intervene for purposes of appealing the Circuit Court decision. The Court of Appeals adopted the Circuit Court's decision and summarily dismissed the complaint. Maxwell v. Union Cab Cooperative, MEOC Case No. 21028 (Comm. Dec. 7/10/92, Ex. Dec. 12/31/91); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, 95-0190 (Ct. App. 9/20/95); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison and Maxwell, 93-0657 (Ct. App. 3/24/94); Union Cab Cooperative v. Equal Opportunities Comm'n of the City of Madison, 92 CV 3260 (Dane County Cir. Ct. 12/1/94).

The Court will not re-examine Commission determinations of the weight and credibility of evidence. Magna Publishing v. MEOC (Ashford), No. 00-CV-2908 (Dane County Cir. Ct., 7/26/01).

Appeals from a Commission Decision to Dane County Circuit Court must follow correct procedure or else they will be dismissed. A certiorari action, pursuant to Wis. Stats. 68.13(1) is the proper avenue for appealing a Commission decision. Personal service must be made on either the MEOC or the City of Madison when appealing a Commission's final decision. Strict compliance with procedural statutes is necessary to obtain jurisdiction to review Commission decisions. Schenk v. MEOC, et al., No. 02-CV-885 (Dane Cty. Cir. Ct. 6/21/02).

The MEOC found that Respondent discriminated against Complainant when it terminated Complainant for violating the company dress code, which prohibited eyebrow rings. Respondent appealed the decision, and the Dane County Circuit Court reversed the discrimination finding. Complainant and the MEOC appealed, contending that because the MEOC Decision and Final Order contemplated further proceedings to establish damages, it was not final and appealable within the meaning of section 68.13(1) of the Wisconsin Statutes and section 3.23(10)(c)4 of the Madison General Ordinances. The Court of Appeals held that the legislature plainly defined "final determination" as one resulting from some prescribed process rather than one contemplating no further proceedings. Alternatively, the Court held that common law certiorari was available to Respondent, notwithstanding whether Respondent specifically sought review by common law certiorari. Maier v. Sam's Club, MEOC Case No. 19992203 (Aff'd Sam's Club, Inc. v. MEOC (Maier), Case No. 02-2024 (Ct. App. 07/24/2003); rev'd and dismissed Sam's Club, Inc. v. MEOC (Maier), Case No. 01CV2943 (Dane County Cir. Ct., 07/19/2002); aff'd Comm. Dec. 10/01/2001; Ex. Dec. on liability: 03/30/2001).

790.9 Miscellaneous

In reviewing Respondent's appeal of default judgment, the Commission remanded the case to the Hearing Examiner with the instruction to apply an "excusable neglect" standard in determining whether the default judgment was warranted. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).


800 REMEDIES FOR DISCRIMINATION

The Commission's authority under the Ordinance to remedy discrimination and enforce its orders (including orders for back pay) is constitutional. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/2/80), aff'd per curiam, No. 80-1906 (Ct. App. 7/16/81), aff'd by equally divided court, Wis. Sup. Ct., 3/20/82); Community Action Comm. v. MEOC (Sanchez), No. 161-291 (Dane County Cir. Ct., 8/31/79).

On remand from the Commission, the Hearing Examiner addressed and explained the issues of various damages including front pay, back pay, pre-judgment interest, and emotional distress, and the Complainant's duty to mitigate damages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

There is little doubt that the Respondent's job posting violates the prohibitions of Sec. 39.03(8)e Mad. Gen. Ord. in that it states a blanket prohibition from employment for any individual with a felony conviction in the last 7 years. By contrast, Sec. 39.03(8)(i)3b indicates that an employer may not consider a conviction record it if is more than 3 years old, and may consider a conviction record of less than 3 years if the conviction to be considered is substantially related to the duties of one's job. The Hearing Examiner proposes an order requiring the Respondent to cease and desist from publication of its illegal preference. The Hearing Examiner is sympathetic to the difficulty the Respondent faces in conforming its conduct including its advertising to the wide range of requirements that face a multi-state enterprise. However, there are many such employers subject to the jurisdiction of the Commission who manage to comply fully with the requirements of the ordinance. Jackson v. Ruan Transportation, MEOC Case No. 20122079 (Ex. Dec. on liability: 02/26/2013, Ex. Dec. on summary judgment: 01/04/2013).

801 Burden of Proof

Once discrimination is found, the burden shifts to the employer to show that a complainant did not use due diligence in seeking other employment to mitigate the wages lost due to the employer's discrimination. Steinbring v. Oakwood Lutheran Home, supra.

The Complainant must prove damages resulting from discrimination by a preponderance of the evidence. Such damages may include monetary amounts for back pay, front pay, and emotional distress. The Complainant also has the burden to set forth credible evidence of efforts made to mitigate damages caused by a discriminatory act. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

805 Right to Liability Finding When No Remediable Harm

810 Remedies Which May be Provided

810.1 Back Pay

The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent. The Commission concluded that the Hearing Examiner was justified in finding that the limited record supported an award of $100 to the Complainant for one day's lost pay. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

Upon a finding of age discrimination, back pay is an appropriate remedy. Upon remand from the Commission, the Hearing Examiner discussed the issue of back pay, including beginning and ending dates, and applicable offsets. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Complainant's claim of employment discrimination was resolved by an Order of Default against the Respondent. The Hearing Examiner determined that the Complainant appropriately mitigated his damages by finding other employment within ten days of termination, and was entitled to economic damages in the form of back pay in the amount of $448.00, the amount of wages lost between termination and new employment. The Complainant's claims for other economic damages were too speculative and unsupported by facts to be considered. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

810.11 Entitlement to Back Pay, Generally

A black who showed that his white co-workers with comparable attendance records were employed for a longer period of time before being discharged was entitled to back pay up to the date those whites were also terminated. Fitzgerald v. Hillhaven, MEOC Case No. 2757 (Ex. Dec. 2/18/82).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent.The Commission concluded that the Hearing Examiner was justified in finding that the limited record supported an award of $100 to the Complainant for one day's lost pay. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

Back pay is a remedy which entitles the Complainant to be placed in at least as good a position regarding wages as if the Respondent had not discriminated against her. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.12 Computation of Amount, Generally

As part of her remedy, a complainant in a discriminatory refusal to hire case was awarded the raise and any experience or longevity pay she would have received had she been hired; . . . and her back pay should not be reduced by the interim earnings she received from a part-time job where the evidence showed she could have performed both jobs simultaneously. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/20/78).

An employee who established a continuing violation of the ordinance prohibition against discrimination in wages was entitled to back pay beginning two years prior to the date she filed her complaint. Meyer v. MATC, MEOC Case No. 2603 (Comm. Dec. 11/9/81, Ex. Dec. 6/16/81).

In a case where the Commission awarded reinstatement and full back pay (among other remedies) for Respondent's retaliation against Complainant during her employment and in regard to her discharge, on appeal, the Circuit Court remanded that portion of the decision awarding the Complainant interest on her back pay award. The court concluded that the interest award was not based on facts in the record or on a fixed legal standard. Accordingly, the court remanded the case to the Commission to enter on the record the basis for its award of 12% interest. The Court of Appeals affirmed the Circuit Court's order of August 24, 1987, and the Commission modified its previous order to include a finding that the basis for its award of 12% interest was the prime rate current at the time of the violation. Hilgers v. Laboratory Consulting, Inc., MEOC Case No. 20277 (Comm. Dec. 11/18/85, 11/10/86, 3/29/89, Ex. Dec. 4/11/85, 7/12/85); Laboratory Consulting, Inc., v. Hilgers and MEOC and City of Madison, 85 CV 6300 (Dane County Cir. Ct. 8/20/86); Hilgers v. Laboratory Consulting, Inc. and MEOC, and Laboratory Consulting, Inc. v MEOC and City of Madison, 86 CV 6488 and 86 CV 6673 (Dane County Cir. Ct. 8/24/87); Hilgers v. Laboratory Consulting, Inc. and MEOC, and Laboratory Consulting, Inc. v MEOC and City of Madison, No. 87-2266 (Ct. App. 12/22/88).

On appeal of the Examiner's award of back pay, front pay, prejudgment interest and reasonable costs and attorney's fees, On appeal, the Commission upheld the Examiner's ruling. However, in addition to the remedies proposed by the Examiner, the Commission ordered that the amount of back pay and front pay be augmented to reflect the overtime that would have been paid based on a Department of Labor ruling. This ruling stated that the Complainant was not an "exempt" employee under the Fair Labor Standards act and therefore was entitled to the twenty hours of overtime pay that accumulated every week. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

In a case where the Hearing Examiner determined that Respondent had terminated the Complainant's employment because of race, the Respondent was ordered to cease and desist from further discriminatory actions. The Complainant was awarded $15,330 in back pay and $2,000 in compensatory damages. The Commission affirmed the Examiner's decision and award of emotional damages but remanded to the Hearing Examiner for clarification of the basis for the amount of back pay since Complainant had not recalled his actual wage. Before a decision on remand, the Respondent appealed the Commission decision, arguing that it failed to get notice of the hearing before the Hearing Examiner. The Circuit Court found that Respondent had adequate notice of the hearing. The parties reached a private settlement prior to issuance of an Examiner's decision on remand. Perez v. Affiliated Carriage Systems, MEOC Case No. 20938 (Comm. Dec. 6/3/92, Ex. Dec. 12/30/91); Affiliated Carriage Systems, Inc., v. Equal Opportunities Commission of the City of Madison, 92 CV 2714 (Dane County Cir. Ct. 2/25/93).

The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent. The Commission concluded that the Hearing Examiner was justified in finding that the limited record supported an award of $100 to the Complainant for one day's lost pay. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. Although Complainant was entitled to back pay, she failed to mitigate damages. Consequently, she could recover only limited back pay.

Complainant left her employment with Respondent on 12 March 1997. She found temporary work several months later, and began training for real estate sales shortly thereafter, but Complainant indicated that she took the summer off to spend time with family, and the record simply did not show any significant effort to mitigate wage loss. The record likewise did not show whether Complainant voluntarily changed careers or began training for real estate sales only because she could not find substantially similar employment after parting ways with Respondent. Thus, Complainant was entitled to recover back pay only until she began her real estate training. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Back pay accrues from the date of the Complainant's discharge until either the date of a final order or the occurrence of some other event that terminates the Respondent's liability to pay wages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.13 Offsets from Back Pay

. . . and the complainant's back pay should not stop because she quit a subsequent job after three days when she learned that the number of hours expected of her at the new job was excessive and no breaks were given during the day. State ex. rel. Badger Produce v. MEOC (Matlack), No. 79-CV-4405 (Dane County Cir. Ct., 9/23/80), aff'd, No. 80-1906 (Wis. Sup. Ct., 3/20/82 and 4/6/82).

Following discharge, Respondent is entitled to an offset for wages received by Complainant at new employment. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.14 Events Limiting Back Pay Liability

Complainant sought damages for lost wages after having been wrongfully terminated based upon sex and age discrimination. Although Complainant was entitled to lost wages, she failed to mitigate damages, and thus could receive only limited back pay. Complainant did not begin searching for new employment until nearly two months after having been fired, and moreover, she filed only three applications. Given the prevailing unemployment rates, the Hearing Examiner determined that Complainant could have replaced lost wages within approximately ten weeks. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

Where a black job applicant proved that a screening test had a racially disparate impact, but the number of blacks actually hired did not establish such a disparate impact and it was uncertain whether the applicant would have been hired or placed on a waiting list even if he had passed the test, he was awarded immediate reinstatement in the hiring process but no back pay; he was also awarded front pay until the time he was hired if he successfully completed the screening process. Jones v. Madison Serv. Corp., MEOC Case No. 2574 (Ex. Dec. 11/24/81).

810.141 Unconditional Offer of Reinstatement

After being discharged (or laid off), the Commission determined the employer made an unconditional offer to reemploy her but reneged after she accepted. The Complainant was awarded $15,060.65 in back pay ($8,396.65 to be paid to her directly and $6,664 to reimburse the state unemployment compensation fund) plus interest and costs. Whiteagle v. Badger Mechanical, MEOC Case No. 20133 (Comm. Dec. 1/31/86, 8/6/86, Ex. Dec. on liability 6/14/85, on damages 9/25/85, on remand 4/28/86).

In a case where Respondent was found to have discriminated against the Complainant on the basis of race by association, Complainant was awarded back pay, attorney's fees and $25,000.00 in emotional damages. Reinstatement was also ordered because it was the only adequate remedy for the Complainant's loss of opportunity for managerial experience. Complainant failed to appeal a finding of no probable cause on retaliation, resulting in the conclusion that her termination was legally justified, thereby limiting Respondent's liability for back pay. The Commission affirmed the Hearing Examiner's decision in its entirety. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

810.142 Accepting Comparable Job at Same or Higher Pay

When a terminated Complainant obtains a job with a salary comparable to or higher than the salary with a Respondent, the Complainant has no continuing wage loss and front pay is not an issue for damages. Flowers v. The Charlton Group, MEOC Case No. 20002129 (Ex. Dec. 9/17/02).

810.143 Quitting or Being Fired From Comparable Job

810.144 Unavailability for Work

In a case where the Hearing Examiner determined that Respondent had terminated the Complainant's employment because of race, the Respondent was ordered to cease and desist from further discriminatory actions. The Complainant was awarded $15,330 in back pay and $2,000 in compensatory damages. The Commission affirmed the Examiner's decision and award of emotional damages but remanded to the Hearing Examiner for clarification of the basis for the amount of back pay since Complainant had not recalled his actual wage. Before a decision on remand, the Respondent appealed the Commission decision, arguing that it failed to get notice of the hearing before the Hearing Examiner. The Circuit Court found that Respondent had adequate notice of the hearing. The parties reached a private settlement prior to issuance of an Examiner's decision on remand. Perez v. Affiliated Carriage Systems, MEOC Case No. 20938 (Comm. Dec. 6/3/92, Ex. Dec. 12/30/91) Affiliated Carriage Systems, Inc., v. Equal Opportunities Commission of the City of Madison, 92 CV 2714 (Dane County Cir. Ct. 2/25/93).

After the hearing examiner found that Complainant had been wrongfully terminated he was awarded back pay. The Complainant was awarded $2,820 instead of $9,870 which the Complainant felt he was entitled to because of his unavailability of work through out much of the period in which he was terminated. Hayes v. Clean Power, MEOC Case No. 19982028 (Ex. Dec. on damages 10/7/99).

On date Complainant voluntarily removed herself from the labor market for personal reasons, Respondent's liability for back pay ceased. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.145 Showing that Job Would Have Ended Anyway

In a case where Respondent was found to have discriminated against the Complainant on the basis of race by association, Complainant was awarded back pay, attorney's fees and $25,000.00 in emotional damages. Reinstatement was also ordered because it was the only adequate remedy for the Complainant's loss of opportunity for managerial experience. Complainant failed to appeal a finding of no probable cause on retaliation, resulting in the conclusion that her termination was legally justified, thereby limiting Respondent's liability for back pay. The Commission affirmed the Hearing Examiner's decision in its entirety. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

810.146 After-Acquired Evidence

810.15 Limitation to Two Years Prior to Filing of Complaint

810.16 Respondent's Obligation to Pay, Exceptions and Limitations

Upon a finding of discrimination, Respondent is generally obligated to pay damages including back pay, front pay, damages for emotional distress, and costs, including a reasonable attorney's fee, subject to certain reductions and exceptions. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.19 Miscellaneous

810.2 Front Pay

After having been wrongfully terminated based upon sex and age discrimination, Complainant sought front pay. Complainant was required to show that reemployment with the Respondent was impossible, but Complainant was voluntarily moving into another line of work. Moreover, while Complainant was seeking front pay until her anticipated retirement date, this extraordinary remedy was available only until one could be expected to replace lost income. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

Where an employee's duties had been assigned to others after his discriminatory discharge, he was awarded front pay until he could be reinstated to the next available position of comparable responsibility and compensation. Morgan v. Community Action Comm., MEOC Case No. 2642 (Ex. Dec. 2/12/82).

On appeal of the Examiner's award of back pay, front pay, prejudgment interest and reasonable costs and attorney's fees, On appeal, the Commission upheld the Examiner's ruling. However, in addition to the remedies proposed by the Examiner, the Commission ordered that the amount of back pay and front pay be augmented to reflect the overtime that would have been paid based on a Department of Labor ruling. This ruling stated that the Complainant was not an "exempt" employee under the Fair Labor Standards act and therefore was entitled to the twenty hours of overtime pay that accumulated every week. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished) Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

When a terminated Complainant obtains a job with a salary comparable to or higher than the salary with a Respondent, the Complainant has no continuing wage loss and front pay is not an issue for damages. Flowers v. The Charlton Group, MEOC Case No. 20002129 (Ex. Dec. 9/17/02).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. Under the circumstances, awarding front pay would have been inappropriate. Front pay would have been appropriate for some period during which Complainant was securing equivalent employment or was obtaining education and training for such employment. However, Complainant had fully replaced lost earnings when her discrimination hearing commenced. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. In addition to back pay, Complainant sought bonuses and commissions that she arguably would have received but for discrimination. The MEOC Hearing Examiner determined that bonuses and commissions were far too speculative. There was simply no telling whether Complainant would have earned them. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Complainant claimed that she was terminated because of her age. She was sixty-two when Respondent terminated her employment. After finding that age partly motivated her termination, the Hearing Examiner awarded back pay and damages for emotional distress. The Hearing Examiner did not order reinstatement because reinstatement was not feasible, given the hostility between the parties. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

Front pay is an equitable remedy which may be considered when reinstatement is not possible. The remedy relates to replacing future income, and is awarded infrequently. In this case, front pay was not awarded to Complainant even though reinstatement was impossible. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.3 Reinstatement; Hire

The Respondent discharged the Complainant partially based on several incidents of misconduct, not by reason of race. Respondent did not discriminate in regard to discipline, terms and conditions of employment and termination in retaliation against the Complainant for filing a complaint. The Respondent was ordered to cease and desist from retaliation against the Complainant. Reinstatement was not ordered because the Complainant did not seek it. Complainant was awarded $3,332.72 in back pay, $4,000.00 as compensation for emotional injuries and attorney's fees and costs. Morgan v. Hazelton Labs, MEOC Case No. 21005 (Ex. Dec. 4/2/93).

In a case where Respondent was found to have discriminated against the Complainant on the basis of race by association, Complainant was awarded back pay, attorney's fees and $25,000.00 in emotional damages. Reinstatement was also ordered because it was the only adequate remedy for the Complainant's loss of opportunity for managerial experience. Complainant failed to appeal a finding of no probable cause on retaliation, resulting in the conclusion that her termination was legally justified, thereby limiting Respondent's liability for back pay. The Commission affirmed the Hearing Examiner's decision in its entirety. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

On remand from a Court of Appeals ruling affirming the decision of the Circuit Court upholding the Commission's finding that Respondent's termination of Complainant was by reason of his race, the Examiner set the amount of back pay at $43,442.50, prejudgment interest at $7,477.76, and established the rate of front-pay at $28,750 per year. In addition, the Examiner awarded reinstatement to the next available chef's position. In reaching his decision, the Examiner found that the Respondents had not made a good faith offer of reemployment that would place the Complainant in at least as good a position as he would have been absent the act of discrimination. The Examiner also rejected the Respondents' contention that the Complainant had failed to mitigate his damages by moving from position to position and by returning to Detroit, his hometown, to seek other employment. The Commission affirmed the Hearing Examiner's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc., v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc.v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. Under the circumstances, reinstatement would have been inappropriate. It was unclear whether the manager with whom Complainant had come into conflict—over what the manager perceived as using disability to further career advancement—could still influence the work environment to which Complainant would have returned. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Reinstatement is always the preferred remedy when discrimination occurs, but not always possible due to hostility and conflict between the parties. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

As an equitable remedy, reinstatement to a prevailing Complainant's former employment is generally an appropriate and preferable means of returning the Complainant to the position in which he/she would have been but for the unlawful act of discrimination or retaliation. The Hearing Examiner determined that reinstatement for the Complainant who was fired in retaliation for complaining about his supervisor's use of racist, sexist and homophobic language was not practical due to: the level of animosity by some of Respondent's employees toward the Complainant; the substantial change over time in the positions of the parties; and the inequities involved in transferring current employees to accommodate the Complainant. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

Following a hearing at which the Respondent did not appear, the Hearing Examiner determined that the Respondent wrongfully terminated the Complainant from employment based upon a felony more than three years after conviction. The Hearing Examiner ordered the Respondent to re-hire the Complainant, pay him all wages lost as the result of the unlawful firing, and pay him $15,000.00 for his emotional distress and anxiety resulting from the discriminatory employment action. Baxter v. Courier Personal Services WHII, MEOC Case No. 20082105 (Hearing Ex. Decision 11/3/09).

810.4 Other Remedial Orders

810.41 Remedies for Insurance Benefit Denial

810.42 Remedies for Loss of Seniority

810.43 Remedies for Loss of Fringe Benefits

After having been wrongfully terminated based upon sex and age discrimination, Complainant sought damages for loss of participation in an employer-matched stock purchase plan. The MEOC Hearing Examiner refused to award the sought-after compensation because Complainant failed to prove the economic value of this element of damages. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

810.44 Remedies for Emotional Harm

After having been wrongfully terminated based upon sex and age discrimination, Complainant—who was singled out for termination after numerous employees violated loss prevention policies established by their employer—sought damages for emotional distress. The MEOC Hearing examiner awarded only $2,500 because Complainant failed to demonstrate with sufficient "vividness" how discrimination actually affected her. The Hearing Examiner noted the lack of unusual adverse impact upon Complainant, who gave only sparse testimony regarding emotional distress. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

The Examiner determined that the Complainant was performing her job satisfactorily and that the reasons advanced by the Respondent for her discharge were unworthy of credence. The Complainant was awarded back pay, costs and reasonable attorney's fees, prejudgment interest on her back pay, and $3,500 for emotional distress. Nelson v. Weight Loss Clinic of America, Inc. et al., MEOC Case No. 20684 (Ex. Dec. 9/29/89).

The Respondent discharged the Complainant partially based on several incidents of misconduct, not by reason of race. Respondent did not discriminate in regard to discipline, terms and conditions of employment and termination in retaliation against the Complainant for filing a complaint. The Respondent was ordered to cease and desist from retaliation against the Complainant. Reinstatement was not ordered because the Complainant did not seek it. Complainant was awarded $3,332.72 in back pay, $4,000.00 as compensation for emotional injuries and attorney's fees and costs. Morgan v. Hazelton Labs, MEOC Case No. 21005 (Ex. Dec. 4/2/93).

In a case where Respondent was found to have discriminated against the Complainant on the basis of race by association, Complainant was awarded back pay, attorney's fees and $25,000.00 in emotional damages. Reinstatement was also ordered because it was the only adequate remedy for the Complainant's loss of opportunity for managerial experience. Complainant failed to appeal a finding of no probable cause on retaliation, resulting in the conclusion that her termination was legally justified, thereby limiting Respondent's liability for back pay. The Commission affirmed the Hearing Examiner's decision in its entirety. Leatherberry v. GTE, MEOC Case No. 21124 (Comm. Dec. 4/14/93, Ex. Dec. 1/5/93).

When the Respondent did not appear at hearing, the Hearing Examiner found that the Respondent had discriminated against the Complainant on the basis of her sex when it terminated her employment approximately two weeks after she gave birth. The Respondent was ordered to pay back pay of $9,000, compensatory damages for emotional distress of $10,000, punitive damages of $20,000 and costs and reasonable attorney's fees. In a separate decision, the Hearing Examiner awarded attorney's fees of $1,560 and costs of $96. Balch v. Snapshots, Inc. of Madison, MEOC Case No. 21730 (Ex. Dec. on liability 10/14/93, on damages 12/9/93).

In a case where Respondents were found to have discriminated against the Complainant on the basis of sexual orientation in regard to housing, on remand, the Commission affirmed the Hearing Examiner's finding of liability and amended her determination of damages. The Commission vacated the Hearing Examiner's award of punitive damages but increased the award of emotional damages to $3000.00, finding that this sum would more appropriately redress the Complainant's emotional injuries. The Commission also determined that it was without jurisdiction to address the Respondents' claims of unconstitutionality regarding the ordinance and the Commission's application of the ordinance.

The Circuit Court affirmed the Commission's findings as to liability and the amount of damages awarded. The Court found that the Respondents' contention that emotional damages could not be awarded by the Commission because they would be deprived of their right to a jury trial in violation of state and federal constitutions was not supported by law. Specifically, the Court found that the 7th Amendment to the U.S. Constitution was not incorporated by the 14th Amendment with respect to the right to jury trial, and that the administrative action of the Commission was not an action at common law prior to statehood and was therefore not covered by the Wisconsin Constitution's right to jury trial provision. The Court declined to address Respondents' additional constitutional arguments, observing that they had failed to serve the Wisconsin Department of Justice with their constitutional objections. Sprague v. Rowe & Hacklander-Ready, EOC Case No. 1462 (Comm. Dec. on attorney's fees 2/9/98, Comm. Dec. 7/10/92, 2/10/94, Ex. Dec. 12/27/91); State of Wisconsin ex rel. Caryl Sprague v. City of Madison et al., 93 CV 113 (Dane County Cir. Ct., 8/19/93, 9/30/94).

In awarding damages for emotional harm suffered by a Complainant, it was appropriate for the Hearing Examiner to balance all the factors and circumstances leading to Complainants' emotional distress stemming from Respondents' act of discrimination. The Examiner awarded each Complainant $7,500 in emotional damages and ordered the Respondents to obtain Fair Housing training. The Examiner awarded the Complainants their reasonable actual attorney's fees and costs in the amount of $9,043.46. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

The plain language of Sec. 3.23, Madison General Ordinances in existence at the time of the dispute did not explicitly authorize the Commission to award compensatory and punitive damages but was more consistent with the imposition of forfeitures and equitable relief. The Madison City Council has now amended 3.23 to explicitly grant the Commission authority to award economic and non-economic damages. Therefore, at the time of its decision, the Commission exceeded its jurisdiction when it awarded the Complainant damages for emotional distress. Sprague v. Rowe & Hacklander-Ready, supra (Ct. App. No. 94-2983, 9/26/96).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Respondent discriminated against Complainant based upon her disability when it discouraged her from seeking advancement within the company and constructively terminated her employment. In addition to back pay and other work-related compensation, Complainant sought significant damages for emotional distress. The MEOC Hearing Examiner awarded $15,000 for emotional distress. Complainant suffered obvious injury due to discrimination, but the MEOC Hearing Examiner noted that Complainant successfully ran for elected office shortly after leaving her employment with Respondent. This fact suggested that Complainant could still perform many activities, which conclusion led the Hearing Examiner to award much less for emotional distress than Complainant was seeking. Laitinen-Schultz v. TLC Wisconsin Laser Center, MEOC Case No. 19982001 (Ex. Dec. 7/1/2003).

Complainant was sixty-two years old when Respondent terminated her employment. Complainant established that she was never disciplined for poor performance, that management-level employees, including the company president, had made derogatory remarks about her age, weight and appearance, and that she was replaced with someone much younger. Noting that Complainant only needed to show that age partly motivated her termination, the Hearing Examiner found that Respondent had discriminated against Complainant when Respondent terminated her employment.

Given the circumstances under which the Complainant was fired, and taking into account the fact that she was unemployed for nine months, the Hearing Examiner awarded the Complainant back pay plus $5,000 for emotional distress. The damages for emotional distress were necessarily limited because the record lacked strong evidence regarding the seriousness of her emotional injuries. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Hearing examiner awarded Complainant $5500 as well as reasonable attorney's fees and expenses related to the pursuit of the complaint where a Bar was found to have denied Complainant a reasonable accommodation of permitting Complainant to enter with his dog and be served at Complainant's bar, a place of public accommodation. Complainant had been diagnosed with mental and emotional disabilities and the dog had training and ameliorated his disabilities.

To show damages for emotional harm, the Complainant does not need to prove a physical manifestation of harm, which is considered an element of the torts of negligent or intentional infliction of emotional distress. The Complainant's testimony regarding emotional harm was corroborated by the testimony of others, including his therapist, a medical professional. Corroborating testimony from a medical professional is helpful in demonstrating emotional harm. Complainant's mental and emotional disabilities made him susceptible to emotional trauma. Nichols v. Buck's Madison Square Garden Tavern, MEOC Case No. 20033011 (Ex. Dec. 10/14/03; Ex. Dec. 11/08/05; Comm. Dec. 05/22/06; aff'd Daily dba Buck's Madison Square Garden Tavern v. EOC, City of Madison, 06CV1931 (Dane County Cir. Ct. 03/30/07).

An employee who takes medical leave for conditions that are brought on or exacerbated by discriminatory or retaliatory conduct may seek damages, even if the leave was not sought for six months after the triggering discriminatory event.

In addition to back pay in the amount of $8,908 and 5% prejudgment interest, the Complainant was awarded $15,000 in emotional distress damages. The Complainant's emotional injuries were intense, but were not particularly long lasting or solely attributable to the actions of the Respondent. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

On remand from the Commission, the Hearing Examiner was unable to award additional emotional distress damages to the $5,000.00 awarded previously because of insufficient evidence and the Complainant's specific reference to that amount as sufficient. The Hearing Examiner cautioned that damages for emotional distress should not be speculative or punishing to the Respondent for causally, unrelated conduct. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

After finding the Respondent discharged the Complainant in retaliation for reporting his supervisor's use of racial, sexual, and homophobic comments, the Hearing Examiner awarded $75,000.00 to the Complainant for emotional distress injuries. The Hearing Examiner based the amount on the Complainant's testimony as to the emotional impact the discharge had upon him, including feelings of shock, distress, sadness, worry, and concern for his family's well being. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

Following a finding of liability by default on Complainant's employment discrimination claim, the Hearing Examiner awarded the Complainant $3000.00 for emotional distress (non-economic) damages. Although the Complainant testified he was manic, agitated, depressed and frustrated following his discharge from Respondent's employment, he was unable to show that such reactions adversely affected his life for any length of time, thus precluding his request for a larger damage award. Norris v. Cost Cutters of Madison, MEOC Case No. 20052134 (Rev'd and remanded Comm. Dec. 03/12/2014; Ex. Dec. on remand from Comm. 01/25/2013; Comm. Interim Dec. 01/21/2009; Ex. Dec. on Damages 06/24/2008; Comm. Dec. 07/03/2007; Ex. Dec. 05/11/2007).

Following a hearing at which the Respondent did not appear, the Hearing Examiner determined that the Respondent wrongfully terminated the Complainant from employment based upon a felony more than three years after conviction. The Hearing Examiner ordered the Respondent to re-hire the Complainant, pay him all wages lost as the result of the unlawful firing, and pay him $15,000.00 for his emotional distress and anxiety resulting from the discriminatory employment action. Baxter v. Courier Personal Services WHII, MEOC Case No. 20082105 (Hearing Ex. Decision 11/3/09).

Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when it required the Complainants to obtain their food via the restaurant's drive-thru, while serving white patrons inside the establishment. The Respondent failed to respond to the Notice of Hearing and, as a result, the Hearing Examiner entered a default judgment in favor of the Complainants. Nor did the Respondent appear at a hearing to determine the Complainants' damages. As to the issue of damages, the Hearing Examiner held that the Complainants' testimony regarding their emotional distress was sufficiently compelling to justify an aggregate award of $20,000. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages and attorney's fees, although the Hearing Examiner expressed doubt as to the propriety of the amount of said attorney's fees. Briggs v. Popeyes Chicken & Biscuits Restaurant, MEOC Case Nos. 20083073, 20083074 (Ex. Dec. 3/19/10).

The Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when its taxi driver dropped them off short of their destination. The Complainants asserted that the Respondent's taxi driver, who is white and Caucasian, exhibited an irrational fear that the Complainants would harm him due to the stereotype that black, African American men are prone to violence. The Respondent maintained that its driver simply followed its curb-to-curb policy regarding drop-offs and that, given the Complainants' complete silence during the ride, its driver was justified in fearing for his safety. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent's proffered, non-discriminatory reasons for its driver's actions were not credible and a pretext for racial discrimination. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages totaling $35,000 and to pay their costs and attorney's fees. The Hearing Examiner also issued sanctions for the Respondent's failure to timely file an answer to the Notice of Hearing. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012).

810.45 Miscellaneous Remedial Orders

810.451 Clearing File, Neutral References

810.452 Posting Order, Notices

The Commission affirmed the Hearing Examiner's entry of a default judgment of sex discrimination and award of $100 against the Respondent. The Commission affirmed the Hearing Examiner's order that the Respondent place equal opportunity statements in its place of employment and attend training presented by the Commission. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

810.453 Counseling or Training

The Hearing Examiner concluded that the Respondents had discriminated against the Complainants on the basis of their race but not their lawful source of income, when the Respondents' rental agent failed to notify the Complainants of the process used for applying for an apartment. The Hearing Examiner rejected the Respondents' contention that the Complainants were not qualified renters, finding that the Respondents' rental agent did not possess sufficient information to make such a determination when she apparently concluded that the Complainants could not afford the apartment. The Examiner awarded each Complainant $7,500 in emotional damages and ordered the Respondents to obtain Fair Housing training. The Examiner awarded the Complainants their reasonable actual attorney's fees and costs in the amount of $9,043.46. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

The Commission will order a Respondent to receive training from the Commission about the extent and coverage of the Ordinance when it is determined that training of corporate and local managers having responsibility for Respondent's local operations may assist in preventing recurring discrimination. Downing v. Labor Ready, MEOC Case No. 22462 (Comm. Dec. 8/29/97, Ex. Dec. 11/20/96).

810.459 Miscellaneous

810.5 Interest on Award

The Examiner determined that the Complainant was performing her job satisfactorily and that the reasons advanced by the Respondent for her discharge were unworthy of credence. The Complainant was awarded back pay, costs and reasonable attorney's fees, prejudgment interest on her back pay, and $3,500 for emotional distress. Nelson v. Weight Loss Clinic of America, Inc. et al., MEOC Case No. 20684 (Ex. Dec. 9/29/89).

On appeal of the Examiner's award of back pay, front pay, prejudgment interest and reasonable costs and attorney's fees, On appeal, the Commission upheld the Examiner's ruling. However, in addition to the remedies proposed by the Examiner, the Commission ordered that the amount of back pay and front pay be augmented to reflect the overtime that would have been paid based on a Department of Labor ruling. This ruling stated that the Complainant was not an "exempt" employee under the Fair Labor Standards act and therefore was entitled to the twenty hours of overtime pay that accumulated every week. The Circuit Court determined that the Commission's findings were supported by the record and affirmed the Commission's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

Where Complainant was found to have been discriminated against by his employer and then was awarded back pay, the hearing examiner also awarded Complainant prejudgment interest. This award was given to Complainant for the lost opportunity cost for money that should have been paid to the Complainant but was not due to his termination. The rate of the prejudgment interest used by the Commission to calculate the interest was 5 percent per annum. Hayes v. Clean Power, MEOC Case No. 19982028 (Ex. Dec. on prejudgment interest 10/7/99).

In this case remanded for clarification of damages findings, one issue was whether pre-judgment interest was appropriate, and if so, what rate of interest. The parties stipulated to the pre-judgment interest rate of 4% per annum to be applied to the wages awarded from the date of Complainant's discharge until the judgment is paid. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

810.6 Attorney's Fees, Costs

810.61 Generally

The "any significant issue" test enunciated in Hensley v. Echerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983) is the appropriate test under which to determine what attorney fees (and costs), if any, a prevailing complainant is entitled to under the ordinance. Vance v. Eastex Packaging, MEOC Case No. 20107 (Ex. Dec. 5/21/85).

Without an agency finding that a complainant's claim is "frivolous, unreasonable or without foundation," an employer is not entitled to compensation for attorney fees for any issue on which it may ultimately prevail. Laboratory Consulting, Inc. v. MEOC, et al., No. 85 CV 6300 (Dane County Cir. Ct., 8/20/86).

The Hearing Examiner after dismissing the complaint for the Complainant's failure to appear at the time of hearing, denied the Respondent's motion for costs and attorney's fees. The Hearing Examiner found that the ordinance makes no provision for such an award to a prevailing Respondent and that such an award would contravene the clear intent of the ordinance to encourage complainants to file complaints of discrimination. Rose v. Marquip, MEOC Case No. 21026 (Ex. Dec. 6/29/89).

The Hearing Examiner concluded that the Complainant had suffered racial harassment at the hands of a co-worker/supervisor and that other managers knew of the harassment and failed to take adequate steps to remedy the problem. The Complainant was not awarded emotional distress damages as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), but the Respondent was ordered to pay the Complainant's costs and attorney fees. Mosley v. Gantos, MEOC Case No. 22247 (Ex. Dec. 8/20/97).

Where Complainant failed to comply with the hearing examiner's order to submit to discovery and then failed to respond to the hearing examiner's Order to Show Cause why the complaint should not be dismissed, the complaint was dismissed with prejudice. However, the hearing examiner had no authority to grant Respondent's motion for request of attorney's fees. Harris v. Accent Service Company, MEOC Case No. 22576 (Ex. Dec. 8/24/98).

Complainant filed a charge against Respondent alleging that she was discriminated against in housing because of her sexual orientation. After Respondent was found liable she was ordered to pay Complainant's attorney's fees although they were considerably more than the actual damages received by the Complainant. The Commission reasoned that the standard for attorney's fees is not based upon the proportion of damages that is awarded, but whether the outcome of the case achieved the purpose for bringing the claim. Sprague v. Rowe & Hacklander-Ready, MEOC Case No. 1462 (Comm. Dec. on attorney's fees 2/9/98).

Travel expenses for attorneys traveling to Madison, when necessary, will be part of an award of attorney's fees. No part of the ordinance makes it necessary to retain local counsel. A Minnesota lawyer's traveling expenses of mileage and hourly fees were included in an award of attorney's fees. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. on Attorney's Fees 6/1/01).

Upon a finding of discrimination, the Complainant, in order to be made whole, is entitled to the cost and expenses of bringing the action including a reasonable actual attorney's fee. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

After the Hearing Examiner entered a finding of discrimination in housing against the Respondent (no damages proven), the Complainant submitted a petition for costs and fees which the Hearing Examiner denied for lack of documentation and proof and the Complainant's pro se status. On appeal, the Commission upheld the Hearing Examiner's decision except the Commission ordered the Respondent to pay the Complainant $93.00 in costs, an amount which the Respondent had agreed to pay previously. Terry v. YWCA, MEOC Case No. 20051011 (Comm. Dec. 9/19/08; Ex. Dec. Costs & Fees 1/4/08; Ex. Dec. 10/8/07) 

The cases of two Complainants alleging discrimination on the basis of race in the provision of a public place of accommodation or amusement were consolidated by the Hearing Examiner into a single case for hearing and related proceedings. Where hours expended were for the benefit of both Complainants, counsel has elected in order to preserve her overall hourly rate to charge her time at half her overall rate to each Complainant. The Respondent did not object to Complainants' petitions in this regard. The Hearing Examiner sees nothing wrong with respect to this process of accounting for time spent in connection with this matter. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010)

Complainants adequately demonstrate the reasonableness of the hourly attorney charge; there is nothing in the record to demonstrate that the amount is unreasonable or unjustified; and the Respondent has not challenged, at any stage, the petitions of the Complainants for their costs and fees including a reasonable attorney's fee. Given this failure on the part of the Respondent, the Hearing Examiner can find no reason why he should not accept as reasonable the hourly rate for Complainants' counsel as established in a previous Hearing Examiner's Order. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010)

810.62 Procedures Used in Determining Fees

810.63 Who May Be Awarded Fees

810.64 Amount of Fees

810.641 Generally

On remand from a Court of Appeals decision for further determination of damages, the Hearing Examiner established the Complainant's costs and attorney fees at $50,511.49. This incorporated the previously awarded attorney fees and fees related to the appeals to Circuit Court and the Court of Appeals. The Commission amended the Hearing Examiner's Order for costs and attorney's fees to $57,964.01, adding the fees requested in the Complainant's petition of March 13, 1990, which had not previously been addressed by the Hearing Examiner. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

In a case where Respondent was found to have discriminated against Complainant on the basis of race in its refusal to hire, in regard to Complainant's Petition for Costs and Attorney's fees, the Examiner found that: 1) Complainant's attorney's hourly rate of $140.00 was presumed to be reasonable and the Respondent failed to rebut the presumption; 2) the Complainant's failure to prevail on two of three claims of discrimination did not require a reduction in attorney's fees because all claims were significantly related, factually and legally; and 3) the relatively modest amount of damages awarded to the Complainant did not warrant a reduction in her attorney's fees because she had met the objectives of her complaint. Complainant was awarded attorney fees of $7,124 and costs of $552.46. Chung v. Paisans, MEOC Case No. 21192 (Ex. Dec. on liability 2/10/93, on attorney's fees 7/29/93 and 9/23/93).

It is appropriate for the Hearing Examiner to grant supplemental attorney's fees requested for additional work performed subsequent to the issuance of the Examiner's decision since such an award is consistent with Commission policy and practice with regard to the costs and fees of prevailing Complainants and the Respondents raised no objection to the inclusion of additional fees. Williams and Oden v. Sinha et al., MEOC Case No. 1605 (Comm. Dec. 7/25/96, Ex. Dec. 12/23/96).

In a case where Respondent was found to have discriminated against Complainant by its refusal to rent Complainant a room, the Hearing Examiner awarded the Complainant $5,191.05 in costs and attorney's fees, over the Respondent's objections that the award of attorney's fees should be limited because the original recommended award was small, the case contained no significant or difficult issues, the Commission reduced the Hearing Examiner's recommended award, and the Respondent told the truth about his lack of recollection instead of lying. Steele v. Highlander Motor Inn et al., MEOC Case No. 3326 (Comm. Dec. 8/31/95, Ex. Dec. on liability 3/24/95, on attorney's fees 1/25/96).

An employee who takes medical leave for conditions that are brought on or exacerbated by discriminatory or retaliatory conduct may seek damages, even if the leave was not sought for six months after the triggering discriminatory event. Carver-Thomas v. Genesis Behavioral Services, Inc., MEOC Case No.19992224 and 20002185 (Ex. Dec. 1/25/06).

The cases of two Complainants alleging discrimination on the basis of race in the provision of a public place of accommodation or amusement were consolidated by the Hearing Examiner into a single case for hearing and related proceedings. Where hours expended were for the benefit of both Complainants, counsel has elected in order to preserve her overall hourly rate to charge her time at half her overall rate to each Complainant. The Respondent did not object to Complainants' petitions in this regard. The Hearing Examiner sees nothing wrong with respect to this process of accounting for time spent in connection with this matter. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010)

Complainants adequately demonstrate the reasonableness of the hourly attorney charge; there is nothing in the record to demonstrate that the amount is unreasonable or unjustified; and the Respondent has not challenged, at any stage, the petitions of the Complainants for their costs and fees including a reasonable attorney's fee. Given this failure on the part of the Respondent, the Hearing Examiner can find no reason why he should not accept as reasonable the hourly rate for Complainants' counsel as established in a previous Hearing Examiner's Order. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. on atty. fees: 02/22/2013, Aff'd Madison Taxi v. Madison Equal Opportunities Commission, City of Madison, John Goodwin and Nathanial Johnson, Case No. 12CV1304 (Dane County Cir. Ct. 10/25/2012), aff'd Comm. Dec. 02/28/2012, Ex. Dec. on liability: 09/07/2011, Ex. Dec. on sanctions: 5/28/2010)

810.642 Amount of Time Expended

810.643 Hourly Rate

Where Complainant's attorney's hourly rate increased shortly after taking the case and then later increased towards the end of the case, the hearing examiner determined that it is reasonable for the attorney's fees to be calculated at the hourly rate where the vast majority of work was performed as long as the work done was necessary, reasonable and non-duplicative. Meyer v. Purlie's Cafe South, MEOC Case No.3282 (Ex. Dec. on attorney's fees Dec. 3/20/95).

Complainant alleged that the Respondent discriminated against him on the basis of his disability when it terminated his employment. The Respondent denied discriminating against the Complainant on the basis of his disability, and asserted, among other things, that the Complainant violated the Respondent's attendance policy. The Respondent did not appeal the Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order of March 12, 2010 in which the Hearing Examiner directed the Complainant to file a petition for costs and fees including a reasonable attorney's fee. On April 5, 2010, the Complainant filed a petition for costs and fees and the Respondent did not object to the petition within 15 days. Accordingly, the Hearing Examiner granted the Complainant's petition for costs and fees, but did not award all of the attorney's fees requested by the Complainant. Since the Complainant's attorney did not sufficiently explain the variable rates at which his law firm charged the Complainant, the Hearing Examiner reduced the aforementioned rates pursuant to the usual and customary hourly rates employed by the attorney's firm in the past. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. on Attorney's Fees 5/10/10).

810.644 Multipliers, "Lodestar" Enhancement

810.645 Partial Success

810.646 Interest on Fee Award

810.7 Punitive Damages

After having been wrongfully terminated based upon sex and age discrimination, Complainant—who was singled out for termination after numerous employees violated loss prevention policies established by their employer—sought punitive damages. The MEOC Hearing Examiner concluded that while the Madison Equal Opportunities Ordinance contained provisions for awards including civil forfeitures, the Commission lacked authority to award punitive damages. Gardner v. Wal-Mart Vision Center, MEOC Case No. 22637 (Ex. Dec. 6/3/01).

The Hearing Examiner concluded that the Respondent had discriminated against the Complainants on the basis of their race, African-American, by manipulating Hunt's work schedule so as to prevent Thomas from exercising certain contractual rights that would allow Thomas to advance to the position of chef. The Hearing Examiner entered an interim Order on damages, awarding the Complainants back pay with prejudgment interest. Further the Hearing Examiner concluded that as a result of the Court of Appeals decision in State of Wisconsin ex rel. Caryl Sprague v. City of Madison and City of Madison Equal Opportunities Commission, Ann Hacklander-Ready and Moreen Rowe, No. 94-2983 (Ct. App. 9/26/96), the Commission lacked authority to make awards of either emotional distress damages or punitive damages. Hunt v. Oscar Mayer Foods Corp., MEOC Case No. 21104 (Ex. Dec. 5/23/97), Thomas v. Oscar Mayer Foods Corp., MEOC Case No. 21220 (Ex. Dec. 5/23/97).

820 Remedies in Particular Types of Cases

820.1 Housing and Public Accommodations

Two males who proved they were discriminated against on the basis of sex in their attempt to rent an apartment were each entitled to the difference in rent and utilities that they each would have paid from what they did pay and each received an additional award for inconvenience suffered as a result of the discrimination. Each also were entitled to their costs of administrative litigation. Bahr et al. v. Hinken, supra.

In a case where the Respondent was found to have discriminated against the Complainant on the basis of race and national origin, with regard to housing, the Complainant was awarded out of pocket expenses, damages for emotional distress, punitive damages and restitution of rent he paid in excess of the reasonable rental value of the premises (the Hearing Examiner concluded that the Respondent's actions so affected the atmosphere and living conditions in the Complainant's household that the rental value of the premises was diminished), as well as prejudgment interest and reasonable costs and attorney's fees. Ossia v. Rush, MEOC Case No. 1377 (Ex. Dec. 6/7/88).

The Hearing Examiner determined that "Ladies' Night" promotions violate the ordinance's prohibition against discrimination on the basis of sex in the provision of a public place of accommodation or amusement. The Examiner found that the Respondent's offer to women of two drinks for the price of one, while men paid the full price, constituted payment of a higher price by men. The Examiner awarded the Complainant $50 for his emotional injury stemming from the act of discrimination. Wilker v. Bermuda's Night Club, MEOC Case No. 3221 (Ex. Dec. 7/10/89).

In a case where Respondent was found to have discriminated against complainant's child in regard to denial of admission to a place of public accommodation, Respondent was ordered to cease and desist from denying admission of otherwise eligible handicapped individuals to its facilities. The Complainant was awarded compensatory damages, attorney's fees and costs. Krasnick v. Solner, MEOC Case No. 3190 (Ex. Dec. 10/27/88 on evidence).

The Hearing Examiner determined that a bartender's calling a patron "white boy" and ordering him from the premises represented discrimination on the basis of race in provision of a public place of accommodation or amusement. The Hearing Examiner awarded the Complainant $1,000 in compensatory damages for embarrassment and humiliation along with his costs and attorney's fees. The Commission upheld the finding of discrimination but reduced the damage award to $750. The Commission found that the Complainant's return to the bar on several occasions showed that the lower amount was appropriate to the actual level of embarrassment suffered by the complainant. Meyer v. Purlie's Cafe South, MEOC Case No. 3282 (Comm. Dec. 10/5/94, Ex. Dec. 4/6/94, on attorney's fees: Ex. Dec. 3/20/95).

The Hearing Examiner determined that the Complainant had been discriminated against by the Respondent when the Respondent's manager failed or refused to offer him a room for the night at the Respondent's motel. The Respondent's manager did not recall the incident but the Complainant's testimony was fully corroborated by a companion. The Complainant was awarded $2,000 for emotional damages. The Commission affirmed the Hearing Examiner's determination of liability but reduced the damage award to $, finding that the record did not support the $2,000 recommended by the Hearing Examiner. Steele v. Highlander Motor Inn et al., MEOC Case No. 3326 (Comm. Dec. 8/31/95, Ex. Dec. on liability 3/24/95, on attorney's fees 1/25/96).

Respondent was charged with allegedly discriminating against the Complainant in a public place of accommodation because of Complainant's race. Prior to any evidence being presented, the Respondent conceded a plea of no contest and Complainant accepted Respondent's concession. The hearing examiner accepted Respondent's concession only after receiving reassurances that no monetary relief was sought and that the Complainant did not waive his rights to pursue the claim in other forums.

As a result, Respondent was found to have discriminated against Complainant and was ordered to cease and desist from discriminating against the Complainant in Respondent's place of accommodation. Williams v. China House Restaurant, MEOC Case No. 3067 (Ex. Dec. 11/26/80).

Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when it required the Complainants to obtain their food via the restaurant's drive-thru, while serving white patrons inside the establishment. The Respondent failed to respond to the Notice of Hearing and, as a result, the Hearing Examiner entered a default judgment in favor of the Complainants. Nor did the Respondent appear at a hearing to determine the Complainants' damages. As to the issue of damages, the Hearing Examiner held that the Complainants' testimony regarding their emotional distress was sufficiently compelling to justify an aggregate award of $20,000. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages and attorney's fees, although the Hearing Examiner expressed doubt as to the propriety of the amount of said attorney's fees.Briggs v. Popeyes Chicken & Biscuits Restaurant, MEOC Case Nos. 20083073, 20083074 (Ex. Dec. 3/19/10).

The Complainant, a black, African-American male, was denied the opportunity to rent a truck and was told to leave the Respondent's store after a dispute with the Respondent's acting manager. Testers, not of the Complainant's race and color, helped demonstrate that the Respondent's actions were likely motivated by the Complainant's race and color. The Hearing Examiner awarded the Complainant $15,000.00 in damages for emotional distress based, in part, on the testimony of a treating physician. The Respondent was also ordered to pay the Complainant's costs and fees including a reasonable attorney's fee. Jackson v. UHAUL, MEOC Case No. 20093107 (Ex. Dec. 02/08/12)

The Complainant alleged that the Respondent discriminated against him on the basis of his conviction record when it rejected his application for Section 8 housing. The Respondent asserted that it was the Complainant's credit history and not his conviction record that prompted the denial of his application. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent knew about the Complainant's conviction record and that it acted upon that knowledge, at least in part, in denying his application for housing. As a result, the Hearing Examiner ordered the Respondent to pay the Complainant's emotional distress damages totaling $10,000 and to pay his costs and attorney's fees. Midstokke v. Southridge Village Apartments, MEOC Case No. 20071119 (Ex. Dec. 02/21/12, aff'd Comm. Dec. 08/13/12).

The Complainants alleged that the Respondent discriminated against them on the basis of their race (African American) and color (Black) when its taxi driver dropped them off short of their destination. The Complainants asserted that the Respondent's taxi driver, who is white and Caucasian, exhibited an irrational fear that the Complainants would harm him due to the stereotype that black, African American men are prone to violence. The Respondent maintained that its driver simply followed its curb-to-curb policy regarding drop-offs and that, given the Complainants' complete silence during the ride, its driver was justified in fearing for his safety. Based on the evidence submitted and the testimony presented by both parties, the Hearing Examiner concluded that the Respondent's proffered, non-discriminatory reasons for its driver's actions were not credible and a pretext for racial discrimination. Accordingly, the Hearing Examiner ordered the Respondent to pay the Complainants' emotional distress damages totaling $35,000 and to pay their costs and attorney's fees. The Hearing Examiner also issued sanctions for the Respondent's failure to timely file an answer to the Notice of Hearing. Goodwin v. Madison Taxi, MEOC Case No. 20093094 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012) and Johnson v. Madison Taxi, MEOC Case No. 20093110 (Ex. Dec. 5/28/2010, Ex. Dec. 9/7/2011, aff'd Comm. Dec. 2/28/2012).

820.2 Particular Employment Actions

820.21 Refusal to Hire

A complainant who showed that her previous employer had failed to rehire her as a nursing assistant because of a disability was entitled to the following: (1) lost wages and interest up to the time of her reinstatement (less amounts she could have earned with due diligence); (2) sick, holiday and vacation time lost; (3) retroactive seniority; and (4) all other rights, privileges and benefits she would have had absent the discrimination. Steinbring v. Oakwood Lutheran Home, supra.

As part of her remedy, a complainant in a discriminatory refusal to hire case was awarded the raise and any experience or longevity pay she would have receive had she been hired; . . . and her back pay should not be reduced by the interim earnings she received from a part-time job where the evidence showed she could have performed both jobs simultaneously. Newton v. MATC, MEOC Case No. 2242 (Ex. Dec. 2/2/78).

An employer found to have discriminated against applicants in its hiring of drivers was properly required to submit for Commission approval a proposed procedure for interviewing and testing applicants. Matlack v. Badger Produce, MEOC Case No. 2394 (Comm. Dec. 8/9/79, Ex. Dec. 5/11/79).

820.22 Termination of Employment

A complainant who proved he was discriminatorily discharged on the basis of race was entitled to back pay, interest, costs and attorney fees. Amounts received by the complainant as unemployment compensation and public assistance did not reduce the total amount of back pay that the employer had to pay, but the unemployment compensation fund and the public assistance funds were reimbursed out of the total back pay and the complainant received the remainder. Sanders v. U-Haul Company of Western Wisconsin, MEOC Case No. 20288 (Ex. Dec. 5/22/85).

A Complainant discharged due to her age was entitled to back pay, interest, damages for emotional distress, costs and a reasonable attorney's fee. Neither reinstatement nor front pay was an appropriate remedy. Some amounts, such as unemployment compensation, might have to be repaid to the State. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

Following a hearing at which the Respondent did not appear, the Hearing Examiner determined that the Respondent wrongfully terminated the Complainant from employment based upon a felony more than three years after conviction. The Hearing Examiner ordered the Respondent to re-hire the Complainant, pay him all wages lost as the result of the unlawful firing, and pay him $15,000.00 for his emotional distress and anxiety resulting from the discriminatory employment action. Baxter v. Courier Personal Services WHII, MEOC Case No. 20082105 (Hearing Ex. Decision 11/3/09).

Complainant alleged that the Respondent discriminated against him on the basis of his disability when it terminated his employment. The Respondent denied discriminating against the Complainant on the basis of his disability, and asserted, among other things, that the Complainant violated the Respondent's attendance policy. The Respondent did not appeal the Hearing Examiner's Recommended Findings of Fact, Conclusions of Law and Order of March 12, 2010 in which the Hearing Examiner directed the Complainant to file a petition for costs and fees including a reasonable attorney's fee. On April 5, 2010, the Complainant filed a petition for costs and fees and the Respondent did not object to the petition within 15 days. Accordingly, the Hearing Examiner granted the Complainant's petition for costs and fees, but did not award all of the attorney's fees requested by the Complainant. Since the Complainant's attorney did not sufficiently explain the variable rates at which his law firm charged the Complainant, the Hearing Examiner reduced the aforementioned rates pursuant to the usual and customary hourly rates employed by the attorney's firm in the past. Groholski v. Old Town Pub, MEOC Case No. 20072041 (Ex. Dec. on Attorney's Fees 5/10/10).

820.23 Pregnancy Discrimination

820.24 Suspension

820.9 Miscellaneous

830 Duty to Mitigate Damages

On remand from a Court of Appeals ruling affirming the decision of the Circuit Court upholding the Commission's finding that Respondent's termination of Complainant was by reason of his race, the Examiner set the amount of back pay at $43,442.50, prejudgment interest at $7,477.76, and established the rate of front-pay at $28,750 per year. In addition, the Examiner awarded reinstatement to the next available chef's position. In reaching his decision, the Examiner found that the Respondents had not made a good faith offer of re-employment that would place the Complainant in at least as good a position as he would have been absent the act of discrimination. The Examiner also rejected the Respondents' contention that the Complainant had failed to mitigate his damages by moving from position to position and by returning to Detroit, his hometown, to seek other employment. The Commission affirmed the Hearing Examiner's decision. Harris v. Paragon Restaurant Group. Inc. et al., MEOC Case No. 20947 (on liability/damages: Comm. Dec. 2/14/90, 5/12/94, Ex. Dec. 6/28/89, 11/8/93; on atty. fees: Comm. Dec. 2/27/95, Ex. Dec. 8/8/94); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 91-1267 (Ct. App. 6/18/92, unpublished); Paragon Restaurant Group, Inc. v. Madison EOC and Harris, 90 CV 1139 (Dane County Cir. Ct. 2/14/90).

Searching for jobs immediately upon being terminated is a clear sign of mitigating damages. Flowers v. The Charlton Group, MEOC Case No. 20002129 (Ex. Dec. 9/17/02).

One Complainant has a continuing duty to mitigate damages following an act of discrimination. Efforts to find and secure employment are an adequate mitigation of damages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).

The Hearing Examiner rejected the Respondent's argument that the Complainant failed to mitigate his damages following his unlawful discharge in retaliation for complaining about his supervisor's use of racist, sexist, and homophobic statements. The Hearing Examiner concluded that the Complainant's efforts to replace the income lost because of the discharge were reasonable when such efforts included applying for numerous employment positions, starting a consulting business and pursuing a Master's degree. Miller v. CUNA, MEOC Case No. 20042175 (Ex. Dec. 5/16/08).

840 Enforcement of Orders and Settlement Agreements

The ordinance authorization to the Commission to enforce its orders is constitutional. Community Action Comm. v. MEOC (Sanchez), No. 161-291 (Dane County Cir. Ct., 8/31/79); . . . and the Commission may seek a forfeiture against the party failing to comply with its orders. City of Madison v. Llama Imports (Laitsch), No. 82-CV-3782 (Dane County Cir. Ct., 9/23/83); State ex. rel. Badger Produce v. MEOC (Matlack), supra. Note: The Ordinance makes failure to comply with a lawful order of the Commission a separate violation subjecting the violator to forfeitures of between $100 and $500 per day.

By failing to seek judicial review, an employer is precluded from challenging the Commission's finding and conclusions in an action brought by the Commission to enforce its order. Community Action Comm. v. MEOC (Sanchez), supra.

Complainant brought action against Respondent alleging race discrimination in his terms and conditions of employment and his eventual termination. Initial efforts at conciliation were unsuccessful, and the matter was scheduled for hearing. Just before the hearing commenced, Complainant, who was appearing without counsel, entered into settlement discussions with the Respondent and appeared to reach an oral agreement that would have settled the matter. Respondent and the EOC Investigator who facilitated the discussion both believed that an agreement had been reached, and the Investigator indicated to the Hearing Examiner that the parties would settle the matter privately, with counsel for the Respondent drafting the settlement agreement. The Commission would act as intermediary without becoming a party. Subsequently, the Complainant retained counsel and disavowed the settlement. Respondent moved the Hearing Examiner to enforce the settlement agreement, but the Examiner concluded that while the parties had almost certainly formed an agreement, he lacked enforcement authority under the Rules of the Equal Opportunities Commission. Ordinarily, the Commission would have referred the matter to the City Attorney for enforcement. But because the Commission was not a party and therefore had not issued any Final Orders, there was nothing to enforce. Young v. Nakoma Golf Club, MEOC Case No. 20032159 (Ex. Dec. 4/19/2005).

890 Miscellaneous

The Commission affirmed the Hearing Examiner's finding of liability, it remanded the claim to the Hearing Examiner to assess the appropriateness of pre-judgement interest, the level of damages for emotional distress and the applicability of front pay and the Complainant's efforts at mitigation of her damages. Cronk v. Reynolds Transfer & Storage, MEOC Case No. 20022063 (Comm. Dec. 3/5/2007; Ex. Dec. 8/29/2006; Comm. Dec. 2/28/2005; Ex. Dec. 9/13/2004); Reynolds Transfer & Storage, Inc. v. City of Madison Department of Civil Rights, Equal Opportunities Commission, 2000 CV 1100 (Dane Cty. Cir. Ct. 10/19/2007).