100 The Madison Equal Opportunities Ordinance

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).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter because of the Respondent's status and due to the status of its facility.

The Respondent's facility is within the geographical boundaries of the City of Madison, but because of its status as a recognized tribe, and the titling of the land in the Bureau of Indian Affairs as "Trust Land", the enterprise is not subject to the DCR's jurisdiction. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

As a sovereign nation, the Respondent represents an entity separate and distinct from the City of Madison and the DCR is unable to exercise jurisdiction over it unless the Respondent acquiesces to the jurisdiction of the DCR. There is nothing in the record of this matter indicating that the Respondent has willingly submitted itself to the jurisdiction of the DCR. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent's status as a sovereign nation places it in the same position as other governmental entities such as the federal government, the State of Wisconsin or Dane County that are immune from action under the Equal Opportunities Ordinance. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter due to its status as a sovereign nation and because of its presence on trust lands.

Complainant asserts that the City of Madison has exercised jurisdiction in certain capacities such as police action, contending that if the City has jurisdiction to arrest someone on the Respondent's property, other municipal agencies such as the DCR should also have authority to act. However, the provision of certain enumerated services by the City of Madison is pursuant to a Memorandum of Understanding (MOU) with the Respondent in exchange for an agreement to make certain payments to the City of Madison in lieu of property tax payments which the City of Madison cannot collect given the Respondent's status. These services are not provided as a governmental entity exercising jurisdiction over the Respondent but rather are services provided subsequent to a contract between two independent parties. Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. re: jurisdict. 12/11/2014).

Respondent Ho-Chunk Gaming of Madison is a tribe recognized by the United States Department of the Interior, and the land upon which its gaming facility is located is land held in trust for the tribe by the Department of the Interior. In Meyer v. Ho-Chunk Gaming-Madison, MEOC Case No. 20142034 (Ex. Dec. 12/22/2014), the Hearing Examiner determined that the Department was without jurisdiction over the Respondent for reasons of the Respondent's sovereign immunity and because the ownership of the Respondent's land falls outside of the geographic jurisdiction of the city of Madison. As neither party has provided the Hearing Examiner with a reason not to apply the ruling in Meyer to the current case, the Hearing Examiner finds his decision in that case to be controlling in the present matter. That decision compels the Hearing Examiner to the conclusion that the Department of Civil Rights is without jurisdiction over the Respondent. Nolan v. Ho-Chunk Gaming Wisconsin, MEOC Case No. 20142101 (Ex. Dec. on jurisdict. 06/08/2015).

Respondent's indication in its initial brief that because MEOC does not seek to separately enforce the provisions of the Ordinance, it need not consider whether settlement agreements and waivers reached between parties attempt to limit MEOC's ability to implement such enforcement, is erroneous.

Mad. Gen. Ord. Sec. 39.03(10)(c)(3)(a and b), and 39.03(10)(d)(13) indicate that the Commission may request that the Office of the City Attorney file an action to enforce the Ordinance, an authority separate and distinct from the enforcement process that is generally pursued i.e., processing individually filed complaints. Additionally, Section 39.03(10)(b)(4) provides for a process whereby an individual member of the Equal Opportunities Commission is empowered to file a complaint to enforce the Ordinance.

It is true that these Commission authorities have rarely been used or even considered, but the power for the Commission to act beyond review of an individually filed complaint exists in parallel with the similar authority of the EEOC. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

The heart of the question in this case for the Hearing Examiner is what process should be utilized by the Commission to adjudge the sufficiency of a settlement agreement in the context of the Commission's complaint process.

While the Respondent suggests that the Commission follow the approach taken by the ERD that utilizes a "totality of circumstances" test when determining whether a settlement agreement and waiver should be given preclusive effect, the Complainant urges the Hearing Examiner to follow the checklist of factors and the burden of proof utilized in age discrimination cases by the EEOC. Both approaches have some commonalities. It is these common factors that will be of the greatest use to the Hearing Examiner.

While the Commission has a Worksharing Agreement with both the ERD and the EEOC, and consistency among enforcement agencies is a highly desirable goal and consideration, all three agencies recognize that they need not travel in lockstep with each other for them to work effectively together.

Ultimately, the Hearing Examiner must attempt to divine the intent and purpose of the Ordinance and give effect to the provisions of the Ordinance. In doing so, the Hearing Examiner may find particular policies or interpretations of similar laws to be persuasive, but rarely are those different decisions binding upon the Hearing Examiner's interpretation of the Ordinance. While the Hearing Examiner will follow an approach like the totality of circumstances approach as set forth in the cases from the ERD cited by the Respondent, the Hearing Examiner may not necessarily adopt the same elements utilized by ERD and LIRC. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

The Department is without jurisdiction over actions that occur outside of the geographic boundaries of the City of Madison. Rappe v. Soderholm Wholesale Foods, Inc., MEOC Case No. 21811 (Ex. Dec. 12/13/93), Hawkins v. Volkmann Railroad Builders, Inc., MEOC Case No. 22451 (Ex. Dec 2/17/00). Since there is apparently no dispute that the Respondent's facilities lie outside of the geographic boundaries of the City of Madison, the Hearing Examiner is compelled to dismiss the proceedings before the Department. Osuocha v. Badger Bowl, MEOC Case No. 20143151 (Ex. Dec. re: jurisdict. 08/11/2015).

Complainant filed a claim against Respondent North Central States Regional Council of Carpenters Training Fund (Training Fund) alleging discrimination based on his race, color, and in retaliation when he was harassed and then terminated from his apprenticeship. At an early point in the investigation Respondent interposed a claim for lack of jurisdiction based on three contentions. The Hearing Examiner addressed the Respondent's argument that the Training Fund is not a proper party because it is not and never has been the Complainant's employer.

In the past, the Hearing Examiner has defined the "essence of the employment relationship" as "work in exchange for compensation." Schenk v. Domestic Abuse Intervention Services, Inc. The relationship between the Complainant and Respondent in this case much more clearly resembles the relationship between student and school. The Respondent did not pay the Complainant for the work he performed as part of his apprenticeship, while payment came from Complainant's employer, under terms set forth by the union and the state.

Furthermore, the Respondent had no control over other factors that might be said to indicate an employment relationship, such as work hours or schedule, nor did the Respondent "hire" or "fire" the Complainant, or have any control over whether Complainant was accepted into the program. Wis. Stat. Sec. 106.01(5p) gives the DWD sole power to terminate an apprentice contract. Under the circumstances of this claim, the Hearing Examiner must conclude that the Complainant was not an employee of the Respondent, and that the Commission lacks jurisdiction in this case. Dinkins v. North Central States Regional Council of Carpenters Training Fund, MEOC Case No. 20162002 (Ex. Dec. re: jurisdict. 09/26/2016).

In a Motion to Dismiss for subject matter jurisdiction, both Complainant and Respondent cite precedent from the Equal Opportunities Commission, the State of Wisconsin and federal courts including the Supreme Court. The Hearing Examiner’s duty is to apply the requirements of the ordinance to the given facts of a complaint, however, he is not free to ignore the higher courts’ application of constitutional principles as those may affect the application of the Ordinance. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.

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

The application of the ministerial exception is a fact intensive process. The exception recognizes a church or religious organizations right to select those who are responsible for teaching of religious values and the development of religious doctrine and for the governance of those churches and religious organizations, and of the right to do so free from the application of a variety of state and federal laws. Both federal and state courts have recognized the ministerial exception. Complainant’s position as a Cook is not entitled to the application of the ministerial exception. Complainant’s duties appeared to be secular in nature and she was not required to teach or spread the tenets of the Respondent’s faith. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.

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).

Respondent Ho-Chunk Gaming Madison, charged with discrimination in employment on the basis of sex and race in violation of the Madison Equal Opportunities Ordinance Mad. Gen. Ord. Sec. 39.03(08), claimed that the Equal Opportunities Division is without jurisdiction in the matter due to its status as a sovereign nation and because of its presence on trust lands.

Respondent’s Motion does not seek to invalidate the Ordinance through the application of a constitutional challenge, but to apply constitutional principles of interpretation to the application of the Ordinance. The District Court found the processes and procedures of the Commission were fair and appropriate for deciding such issues. Sandoval v. Capitoland Christian Center Church, Inc., MEOD Case No. 20152033/EEOC Case No. 26B201500021.

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).

When Complainant allegations in two separate cases arise out of a single set of facts and circumstances, and witnesses in the two cases are likely to be identical, trial of the first claim may well result in a protracted dispute over the application of the principle of collateral estoppel to the second claim, absent consolidation of the two cases. Bakken v. Aerotek Staffing Agency, MEOC Case No. 20132110 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. CUNA Mutual Group.; Bakken v. CUNA Mutual Group, MEOC Case No. 20132111 (Ex. Dec. on mot. to consol.: 08/06/2014). See Bakken v. Aerotek Staffing Agency.

In the present matter, the parties contracted with each other to avoid litigation prior to the commencement of any proceedings before the Commission or any other body. Asked by Respondent to enforce the terms of the settlement, the Dane County Circuit Court dismissed the proceedings and indicated that the MEOC should have the first opportunity to address the waiver issues.

The Hearing Examiner finds that it is more consistent with the provisions of the Equal Opportunities Ordinance and the burdens established under the Ordinance for the Complainant to carry the burden of proof as to the issue of the nonvalidity of the waiver.

The Hearing Examiner sees the process of producing the agreement and the challenge of the waiver to be similar to the portion of the McDonnell Douglas/Burdine burden shifting analysis whereby the Respondent has the burden to produce evidence of a legitimate, nondiscriminatory explanation, but that the Complainant can overcome the presumption of a lack of discrimination by demonstrating a lack of credibility or pretext on the part of the Respondent. Since it is the Complainant who wishes to disturb the status quo created by signing of the settlement agreement, it is appropriate that the Complainant bear the burden of proving that the status quo is illusory. Wrolstad v. Cuna Mutual Group, MEOC Case No. 20102042 (Ex. Dec. on mot. to dismiss: 04/23/2015).

100 The Madison Equal Opportunities Ordinance

110 Coverage and Application, Generally

111 Validity of Ordinance

112 Geographical Coverage of the Ordinance

113 Express Exceptions From Coverage

114 Exclusivity of MEOO Remedy

115 Constitutional Questions and Issues

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

116.2 General Principles

116.9 Miscellaneous

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