Wisconsin Personnel Commission's             Digest of Decisions        March, 1999 Version

Sections 712 through 715.9

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712.2 What constitutes/sufficiency

A complaint of age discrimination must be filed in written form as provided in §PC 2.02, Wis. Adm. Code. A discussion of age issues in telephone conversations with a Commission staff member did not constitute a filing of a complaint. Ziegler v. LIRC, 93-0031-PC-ER, 5/2/96

A complainant is not required to provide, in the complaint, complete identification of all protected conduct serving as a basis for a claim under the whistleblower law. Canter-Kihlstrom v. UW-Madison, 86-0054-PC-ER, 6/8/88

A complaint form that was filled out by a Commission staff member as a consequence of a telephone conversation with the complainant and at the complainant's request constituted, on that date, a complaint of illegal retaliation. The document was complete except for a notarized signature and complainant's filing one week later of a notarized complaint corrected any technical deficiencies and related back to the initial complaint. Fliehr v. DOA, 85-0155-PC-ER, 12/17/85

Written complaint filed under the Whistleblower law was found to have met the statutory requirement that it specify the nature of the retaliatory action or threat and request relief. The complaint is not subject to the standards of sufficiency established by the Wisconsin Code of Civil Procedure. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 9/28/84

Respondent's motion to make more definite and certain was denied where complainant's whistleblower claim generally complied with requirements of §230.85, Stats., because complainant had identified the nature of the alleged retaliation by stating her program director did not talk to complainant and wrote "biting notes" instead, copies of the notes were attached and complainant indicated that during the course of the investigation she would specify the actions taken and amend the original complaint accordingly. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 9/28/84

A letter to the Commission constituted a complaint of discrimination where the letter identified the complainant, alleged different treatment based on sex and, possibly, marital status, identified the conduct complained of and its source, and requested assistance from the Commission. Not all of the information listed in §PC 4.020)(a) through (f), Wis. Adm. Code, (1982) needs to be present for a document to be a complaint of discrimination. Goodhue v. UW-Stevens Point, 82-PC-ER-24, 11/9/83


712.4 Failure to state claim on which relief may be granted

In ruling on a motion for failure to state a claim, appellant's memo, which referred to the absence of a maintenance agreement for equipment in two offices, could be said to satisfy the requirements for a written disclosure of "mismanagement." Duran v. DOC, 94-0005-PC-ER, 10/4/94

In ruling on a motion to dismiss for failure to state a cause of action, the Commission must analyze the complainant's allegations liberally in favor of the complainant and may grant the motion only if it appears with certainty that no relief could be granted. Duran v. DOC, 94-0005-PC-ER, 10/4/94

In deciding a motion to dismiss for failure to state a claim, the Commission was unable to determine on the limited record before it whether a conversation with a co-employe concerning a statement made by the agency head would be considered a verbal disclosure to "any other person" that was not preceded by a disclosure under either §230.81(1)(a), Stats. (in writing to the supervisor) or §230.81(1)(b) (in writing to a governmental unit designated by the Commission), and hence not a disclosure covered by the whistleblower law, or whether the conversation with the co-employe was part of assisting "in any action or proceeding relating to the lawful disclosure of information under §230.81 by another employe," within the meaning of §230.80(8)(b). Pierce v. Wis. Lottery & DER, 91-0136-PC-ER-B, 9/17/93

A complaint of sex discrimination under the FEA fails to state a claim upon which relief can be granted where the complaint consists primarily of allegations of an unsatisfactory work environment involving specific problems complainant experienced with supervisors (most of whom were of the same gender), coworkers, and others. In responding to the motion to dismiss, complainant's attorney did not attempt to explain how these incidents involved sex discrimination, except to the extent that it was alleged that the clerical staff were treated as "emotional punching bags" by their supervisors, who were frustrated and intimidated by treatment they were receiving at the hands of their supervisors. Assuming all of complainant's allegations to be true for the purpose of deciding this motion, the chain of causation--complainant's supervisors react to a sexist atmosphere created by their supervisors by using complainant as an "emotional punching bag"--is too extended for a conclusion that respondent discriminated against complainant because of sex in violation of §111.322(1), Stats. Also, management had no obligation to act where the conditions about which complainant was concerned did not involve sex discrimination but rather involved disagreements with her supervisor about her approach to supervision. Makl v. UW-Stevens Point, 92-0038-PC-ER, 4/30/93

Complainant's complaint of sex discrimination was dismissed for failure to state a claim upon which relief can be granted because complainant did not allege quid pro quo harassment or that she was subjected to conduct of a sexual nature that amounted to a claim of sexual harassment nor did she identify any specific term and/or condition of her employment that was affected by the allegedly sexist atmosphere of the office in which she worked. Complainant's failure to allege any acts of sex discrimination against her could not be attributed to a generalized pleading because complainant provided ample details regarding her dissatisfaction with her working conditions and relationships with fellow employes. Weeks v. UW-Stevens Point, 92-0036-PC-ER, 4/30/93

Complainant's assignment to open the Chancellor's personal mail which contained two arguably "offensive sexually graphic materials" held not to satisfy the statutory definition of sexual harassment as "deliberate, repeated display" of such materials. The complaint was dismissed for failure to sate a claim. Erdmann v. UW-Stevens Point, 92-0104-PC-ER, 4/23/93

That portion of the complaint which alleged that a nonselection decision made on August 28, 1986, was in retaliation for filing a complaint on September 2, 1986, was dismissed for failure to state a claim upon which relief can be granted. Franz v. UW-Oshkosh, 86-0110-PC-ER, 10/4/89

Respondent's motion to dismiss was denied where complainants, who were employed at the Marshall Sherrer Correctional Center, alleged that due to the use of BFOQ's, females have a better opportunity to be hired for officer positions at the Women's Correctional Center than do males, that working conditions are better at WCC than at MSCC in view of the higher officer to inmate ratio at WCC and that, as a result, the complainants are being discriminated against based on sex in regard to working conditions. Duvnjak & Studenec v. DHSS, 88-0164, 0168-PC-ER, 9/8/89

Respondent's motion to dismiss was denied where it was supported by an affidavit by respondent's counsel that the respondent did not discriminate. The mere existence of the respondent's affidavit did not permit the Commission to ignore the complainant's allegations and to adopt the respondent's version of events. Complainant's allegations were drafted without benefit of counsel. Acharya v. DOR, 89-0014, 0015-PC-ER, 7/14/89

Respondent's motion was denied where it asked the Commission to use the information provided by the parties at the conciliation conference to decide that complainant's allegations were not meritorious. While complainant had withdrawn certain of his allegations, many others remained. The Commission is not constrained to consider only those remedies requested by a complainant. Ingram v. UW-Milwaukee, 89-0020-PC-ER, 7/14/89

In a whistleblower case, respondent's motion to dismiss was denied for failure to state a claim was denied where there was no basis on which to conclude 1) that the complainant did not disclose "information" to her attorney as contended by complainant, or 2) that notes to complainant's supervisor, though neutral on their face, acted to inform the supervisor that the writer wished to identify improper governmental activities. Canter-Kihlstrom v. UW-Madison, 86-0054-PC-ER, 6/8/88

In ruling on a motion to dismiss for failure to state a claim, the Commission must analyze the complainant's allegations liberally in favor of the complainant and grant the motion only if it appears with certainty that no relief can be granted. Canter-Kihlstrom v. UW-Madison, 86-0054-PC-ER, 6/8/88

The Commission denied respondent's motion to dismiss failure to state a claim on which relief can be granted where complainant alleged that his former supervisor made discriminatory comments and sought to get rid of older employes, and while complainant had resigned from his position, he had sought reinstatement to the same office. The Commission held that a cease and desist order would affect respondent's future conduct with respect to employes generally and was unwilling to accept the argument that because he had resigned, complainant gave up his FEA rights. Bratley v. DILHR, 83-0036-PC-ER, 7/21/83

Where the complainant transferred from DILHR to LIRC on July 3, 1977, her complaint of discrimination against LIRC did not state a claim upon which relief could be granted where she alleged that LIRC perpetuated DILHR's past discrimination by continuing to pay her lower wages than male attorneys and by assigning her to a regrade point in the attorney's pay plan lower than where she would have been assigned but for DILHR's alleged past discrimination, but did not allege that LIRC assigned her to the regrade point contrary to the provisions of the pay plan, that her assignment was based on sex per se, or that the pay plan itself was sex discriminatory, and where she had not filed a timely complaint of sex discrimination against DILHR after her employment with DILHR had terminated, citing United Air Lines v. Evans, 431 U.S. 553, 14 FEP Cases 1510, 1512 (1977). Jacobson v. DILHR & LIRC, 78-PC-ER-49, 4/23/81


712.5 Amendment

Appellant's tentative reference to the Wisconsin Fair Employment Act in its post-hearing brief to an appeal under §230.44(1)(d), Stats., of a non-selection decision, was insufficient to create an obligation for respondent to object to the consideration of such a claim at the pain of creating an implied waiver. While it is possible to effect a waiver by silence or inaction, the tentative reference in appellant's brief did not indicate that appellant was seeking to amend his appeal. It could not be concluded that respondent reasonably should have foreseen the possibility that complainant's reference, coupled with respondent's failure to object to that reference, would be converted sua sponte and without prior notice into an accomplished amendment converting the civil service appeal into a FEA claim and accompanied immediately by the adjudication of the claim and the establishment of liability. There was no effective waiver by respondent to the interjection of the FEA claim. The parties had not had the opportunity to present arguments on a possible amendment or to make a record on that issue. The Commission remanded the matter to the designated hearing examiner to allow complainant to seek to amend his appeal to add a claim under the FEA. Holley v. DOCom, 98-0016-PC, 1/13/99

Complainant’s request to change three allegations of unequal treatment based on sex to include them in her claim of sex harassment was granted where it was properly characterized as curing a technical defect, even though the request was not made until more than 2 years after the complaint was filed and about 6 months after the initial determination was issued. Reinhold v. Office of the Columbia County District Attorney & Bennett, 95-0086-PC-ER, 9/16/97

Complainant was permitted to amend her complaint to add an allegation that provided clarification of an allegation made in the original complaint, where the amendment request was raised about 6 weeks after the initial complaint was filed and the original complaint noted that not all acts of harassment had been specified therein. Complainant was provided 21 calendar days from the date of the ruling to cure the technical defect which arose from the fact that complainant had not sworn or attested to the added allegation. Reinhold v. Office of the Columbia County District Attorney & Bennett, 95-0086-PC-ER, 9/16/97

Complainant was allowed to amend his race discrimination complaint, filed one year earlier, to add a claim of discrimination based on arrest/conviction record, where the claims related to the same hiring decisions and the original charge was still in the investigatory stage. Amendment was permitted even though complainant, who appeared pro se, filed his amendment 10 days after the deadline imposed for doing so by the Commission in letter to the complainant, where his failure to meet the imposed deadline was not egregious or part of a pattern of action and there was no showing that the additional ten-day period prejudiced in any significant way the investigation or the respondent’s ability to defend. Staples v. SPD, 95-0189-PC-ER, 1/30/97

Complainant was not allowed to amend her complaint to add an allegation that was not referenced in her original complaint of discrimination, nor was referenced in the initial determination. McDonald v. UW-Madison, 94-0159-PC-ER, 8/5/96

Complainant was permitted to amend her complaint where she raised, in her reply brief to respondent's motion to dismiss the complaint as untimely, an allegation of handicap discrimination arising from the same conduct for which she raised an age discrimination claim in her original complaint. However, the amendment had no bearing on the underlying timeliness question. Tafelski v. UW (Superior), 95-0127-PC-ER, 3/22/96

The Commission generally allows amendments to add an alleged basis of discrimination, but not to add acts complained of which bear no relation to the act complained of in the original complaint. The basic principle is that a respondent must receive notice of the action complained of in a timely manner to enable prompt internal investigation, identification of witnesses and related documents. This basic principle promotes the opportunity for reasonably prompt settlement where appropriate and for preservation of evidence where settlement is not feasible; such goals serving the interests of both parties. While a later amendment adding a suspected basis of discrimination may create some burdens for the parties, the burden is lessened because the parties already have had an opportunity to identify witnesses and preserve evidence. The burden for both parties is much greater where the amendment attempts to add an act which does not relate to the act complained of in the initial complaint because the opportunities to identify witnesses and preserve evidence is jeopardized. Chelcun v. UW-Stevens Point, 91-0159-PC-ER, 3/9/94

Information provided in letter form to an EEOC investigator in a case being investigated by the EEOC and cross-filed with the Commission constituted an amendment to the FEA complaint. Dawsey v. DHSS, 89-0061-PC-ER, 10/29/92

Complainant's letter to the EEOC investigator, which, when read with the attachments, identified the complainant, the respondent agency, and the alleged discriminatory conduct, constituted an amendment. Technical omissions could later be cured through the submission of a completed complaint form. Dawsey v. DHSS, 89-0061-PC-ER, 10/29/92

Unrepresented complainants are provided substantial leeway in terms of amending their complainants. Dawsey v. DHSS, 89-0061-PC-ER, 10/29/92

Appellant's request to amend his original appeal in order to add a claim of whistleblower retaliation was denied because of the 15 month delay in making the request and because upon receipt of the appeal, the Commission had specifically advised the appellant of the procedure for filing a complaint and had provided him a complaint form for doing so. O'Connor v. DHSS & DER, 90-0381-PC, 2/21/92

Allegations regarding separate transactions which occurred after the filing of the original complaint should be processed as a separate complaint rather than as an amendment to the original complaint that would relate back. Nash v. DRL & DER, 90-0107-PC-ER, 12/23/91

Complainant's request to add a claim of discrimination based on sex was denied where the case had already progressed through a hearing on probable cause with respect to the original claim of sexual harassment, the complainant had been represented by an attorney for nearly two years, the complainant conducted extensive discovery prior to the hearing on probable cause, the complainant had specifically urged the narrowing of the statement of issue from "sex discrimination" to sexual harassment prior to the probable cause hearing and the complainant failed to offer any basis for the amendment other than an after-the-hearing realization that another theory could apply to the facts of the case. Kloehn v. DHSS, 86-0009-PC-ER, 1/10/90

No amendment to add claims of race discrimination and retaliation was permitted after the issuance of an initial determination in light of the potential for delay, the existence of a prior amendment and an extensive opportunity to amend before the issuance of the initial determination. Ferrill v. DHSS, 87-0096-PC-ER, 8/24/89

Material set forth in the second count of the proposed amended complaint was processed as a new complaint rather than as an amendment to the original complaint where the second count alleged that the respondent retaliated against the complainant because she filed the first complaint. These allegations did not relate to the subject matter of the original charge, but rather to the filing of the original charge. Iwanski v. DHSS, 88-0124-PC, etc., 6/21/89

At the time of establishing the issue for hearing after an initial determination of no probable cause, the Commission declined to grant the complainant an opportunity to amend or clarify his complaint where the complainant had been provided such an opportunity earlier and had failed to exercise it and an opposite conclusion would have generated a potential for a delay of the proceedings in order for an investigation of any new allegations. Holubowicz v. DHSS, 88-0097-PC-ER, 4/7/89

Where the original complaint was apparently drafted pro se, was filed in 1987 and alleged that complainant was being prevented from returning to a previous position, and where the proposed amended complaint alleged that in 1988 complainant had been denied transfers into unspecified positions and had been prevented from returning to his previous position, the Commission could not rule out a continuing violation and declined to deny the complainant's request for amendment of his complaint. Vander Zanden v. DILHR, 87-0063-PC-ER, 2/28/89

Complainant was not permitted to amend his complaint to the extent the claims in the amendment did not relate to the original charge which arose from a termination decision. With one exception, the allegations in the amendment related to separate personnel actions taken both before and after the termination. Amendment was permitted as to the claim relating to the termination. Pugh v. DNR, 86-0059-PC-ER, 6/10/88

Where the original charge alleged that an unsatisfactory performance evaluation in June of 1985 was retaliatory, no amendment was permitted for allegations arising from the denial of pay increases as reflected in pay checks issued on or about August 1 of 1984, 1985 and 1986. Kimble v. DILHR, 87-0061-PC-ER, 2/19/88

Complainant was allowed to amend his complaint a second time, after the issuance of an amended initial determination, where complainant was not represented by counsel until after the issuance of the amended initial determination. Complainant was granted 10 days to formally amend his complaint and the Commission denied respondent's request to bifurcate the proceedings to separate the original cause of action from the new cause of action. Louis v. DOT, 85-0126-PC-ER, 8/26/87

The Commission declined to grant complainant's motion to amend his complaint to include sex discrimination which was filed two days prior to a scheduled hearing on probable cause as to allegations of race, color and handicap discrimination, where complainant was represented by counsel and where there was no indication that the allegation of both sex discrimination was not known or knowable at the time the original complaint was filed. Johnson v. DHSS, 83-0032-PC-ER, 1/30/85

The complainant would be permitted to amend a complaint to add an allegation that the agency action of which he originally complained constituted discrimination on the basis of race also constituted discrimination on the basis of retaliation, and the amendment would relate back to the date of the original complaint. However, an investigation of the amended complaint and an initial determination thereon would be required before the matter could proceed to hearing. Adams v. DNR & DER, 80-PC-ER-22, 1/8/82


713.3 Standards

The Commission lacks the authority to issue a preliminary injunction under the Fair Employment Act, citing Van Rooy v. DILHR & DER, 87-0117-PC, 87-0134-PC-ER, 10/1/87, but has such authority under the whistleblower law. Factors which must be considered are the probability of ultimate success on the merits, the degree of threatened irreparable injury, and the balance of relative damages to the parties, citing Hruska v. DATCP, 85-0069-PC-ER, 8/13/85. Balele v. DNR et al., 95-0029-PC-ER, 6/22/95

The Commission lacks the authority to issue a preliminary injunction with respect to a complaint filed under the Fair Employment Act. Van Rooy v. DILHR & DER, 87-0117-PC, 87-0134-PC-ER, 10/1/87

In exercising its discretion in deciding whether to grant a motion for a preliminary injunction under §230.85(3)(c), Stats., the Commission considered 1) whether the movant had shown a reasonable probability of ultimate success on the merits, 2) whether movant had shown irreparable harm in the absence of an injunction and 3) any irreparable injury that would be suffered by the party opposing the motion if the injunction were entered. Hruska et al. v. DATCP et al., 85-0069, 0070, 0071-PC-ER, 8/13/85


713.8 Relief granted

The Commission issued a preliminary injunction prohibiting the respondents from implementing a proposed reorganization, and from reassigning complainants' work duties and office locations. Complainants demonstrated a reasonable probability of ultimate success on the merits by establishing that they had engaged in a protective activity, that the proposed changes in their work would have the effect of a penalty, that they were entitled to application of the statutory presumption of retaliation and that there was substantial independent evidence (in the form of explicit performance evaluation that were completed subsequent to the protected activity) that the respondents' actions were in fact retaliatory. The complainants established that they would be irreparably injured if the preliminary injunction were denied because there was no way to compensate complainants for a reassignment and the reassignment might permanently decrease the volume of work coming in from outside customers. Finally, in terms of any irreparable injury to respondent if the injunction were entered, there was no showing of any compelling need to reorganize and reassign now rather than gradually through a process of retirement-induced attrition as had been respondents' plan prior to complainants' protected activity. Hruska et al. v. DATCP et al., 85-0069, 0070, 0071-PC-ER, 8/13/85


713.9 Relief denied

Where there was nothing in either the complaint or complainant's briefs suggesting he had made a disclosure under the whistleblower law, it did not appear he had any chance of succeeding on his claim, and his motion for a preliminary injunction was denied. Balele v. DNR et al., 95-0029-PC-ER, 6/22/95

The Commission's implied powers do not include the authority to issue an order prohibiting respondent or its representatives from making public statements about pending proceedings unless such statements constitute a threat of retaliatory action within the meaning of §230.83(1), Stats. Getsinger et al. v. UW-Stevens Point, 91-0140-PC-ER, etc., 6/11/92

Complainant's request for an order temporarily delaying the appointment of another person to a vacant position was denied where 1) there were serious questions about the viability of appellant's asserted disclosures, 2) complainant's subsequent appointment to the position was not completely foreclosed if the appointment of the other person was allowed to proceed, and 3) the balance of convenience was not completely favorable to appellant. Van Rooy v. DILHR & DER, 87-0117-PC, 87-0134-PC-ER, 10/1/87

The Commission did not address that portion of complainants' motion for a preliminary injunction to prohibit respondents from removing complainants' educational opportunities, where the testimony at hearing was that there was no intent to change their educational opportunities and where complainants did not press this aspect of their motion in their posthearing brief. The other aspects of the complainants' motion were granted. Hruska et al. v. DATCP et al., 85-0069, 0070, 0071-PC-ER, 8/13/85


714.1 Generally

Where complainant had been unresponsive to prior letters but answered the Commission's final letter requesting information one day late, the Commission imposed an inference at the investigative stage of complainant's public employe safety and health and whistleblower claims that respondent had no knowledge of the events that served as the basis for his retaliation claims. The net effect of the inference was to issue a "no probable cause" initial determination as to those claims. Sloan v. DOC, 98-0107-PC-ER, etc., 2/10/99

A response that was required by the Commission pursuant to §PC 2.04, Wis. Adm. Code, as part of its investigation of an equal rights complaint, would not generally be regarded as the type of pleading presumptively considered part of the factual record for decision purposes. Enke v. DOT, 97-0202-PC-ER, 12/16/98

It is appropriate for a respondent to file a motion to dismiss instead of an answer where the motion had the potential of dismissing the entire case. If the motion is unsuccessful, the Commission may issue an order for respondents to file an answer. Balele v. DOA, et al., 93-0144-PC-ER, 3/26/97

No sanctions were appropriate where respondent filed its answer 9 days late, where there was no prejudice either argued or shown by the complainant and no aggravated circumstances were present. Rupiper v. DOC, 95-0181-PC-ER, 8/15/96

A letter from the Commission which stated that the complaint would be dismissed if complainant failed to respond within 20 days provided sufficient notice to meet the notice requirements of §PC 2.05(4)(a), Wis. Adm. Code. The Commission imposed sanctions for the failure to have timely provided the information sought in the underlying request for information. Jackson v. DOC, 94-0115-PC-ER, 3/7/96

Where, as part of the investigation of a complaint, complainant failed to provide any rebuttal information requested in a letter from the Commission dated March 6th and complainant (via counsel) responded, on the last day, to a September 21st certified letter by stating he would provide the information within 30 days, the most appropriate sanction was to foreclose complainant's opportunity to present rebuttal information and to issue the initial determination based solely upon the information previously provided by the parties. Jackson v. DOC, 94-0115-PC-ER, 3/7/96

Where, after having filed an answer to the complaint, respondent's reply to complainant's response was one or two working days late and no prejudice to complainant was alleged, complainant's motion for an order disregarding or rejecting the reply was denied. Balele v. DHSS et al., 95-0005-PC-ER, 5/15/95; affirmed by Dane County Circuit Court, 97-CV-2724, 5/6/98; affirmed by Court of Appeals, 98-1432, 12/23/98; cert denied, Wisconsin Supreme Court, 4/6/99

Where, in his response to the answer to his complaint, complainant recited certain alleged statements suggesting discriminatory intent by management, but subsequently refused the Commission's requests to provide specifics relating to the statements, the Commission made an inference, for purposes of the investigation only, that such alleged statement were never made. Wentz v. DOT, 94-0056-PC-ER, 10/24/94

Even though a request from the Commission to the complainant did not provide notice that his failure to respond could result in the imposition of sanctions identified in §PC 2.05(4)(b), (c), and (d), where respondent's subsequently moved for such sanctions, the Commission then provided complainant a copy of the applicable rules, including al of §PC 2.05, and the complainant reiterated his decision not to provide the requested information, the complainant's refusal was a "failure to answer or produce requested information" within the meaning of §PC 2.05(4)(b). Wentz v. DOT, 94-0056-PC-ER, 10/24/94

The entire proceeding which results from the filing of a FEA complaint is a "contested case." The "contested case" is not limited to only so much of the proceeding which occurs after a hearing has been noticed. Germain v. DHSS, 91-0083-PC-ER, 5/14/92


714.4 Request for copy of investigation file

The Commission normally has denied access to investigative files during the pendency of the investigation in order to protect the integrity of the investigation. Keleher v. UW-Madison, 84-0105-PC-ER, 9/26/85


714.9 Waiver

Since the full Commission had granted the complainant's request to waive the investigation of his complaint, complainant's later request to revoke the waiver also had to be considered by the full Commission. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)

Complainants would not be relieved of their stipulation to waive the investigation of their complaint where they have not alleged that their stipulation was induced by fraud, misunderstanding or mistake, but rather merely indicate they changed their mind, and a hearing date had already been established in reliance on their stipulation. Martin et al. v. DOC, 90-0080-PC-ER, etc., 10/16/92

While §230.44(1m), Stats., gives complainant the right to waive an investigation and probable cause determination, it does not give a complainant the right to waive issues such as res judicata, collateral estoppel, untimely filing, etc., that have the capacity to defeat a claim short of a hearing on the merits. Balele v. UW-Madison, 91-0002-PC-ER, 2/6/92


715.1 Effect of finding of probable cause

Where the initial determination found probable cause on the issue of handicap, that issue survived the complainant's failure to timely appeal the no probable cause findings as to the race and sex issues. Jones v. DNR, 78-PC-ER-12, 11/8/79


715.2 Request for second investigation

The Commission denied complainant's request that the investigation of his complaint be redone where an initial determination of no probable cause had been issued and complainant also indicated that he wished to appeal the initial determination. Keleher v. UW-Madison, 84-0105-PC-ER, 9/26/85


715.5 Respondent's objections to the initial determination of probable cause

Where respondents disagreed as to the nature and findings of the investigation that resulted in an initial determination of probable cause, the respondent's objections are best addressed at a de novo hearing on the merits as provided by statute. Hollinger & Gertsch v. UW-Milwaukee., 84-0061, 0063-PC-ER, 8/15/85


715.9 Other issues

The only unilateral action available to a complainant who is appealing a no probable cause finding in an initial determination is the request for a hearing on the issue of probable cause, rather than a hearing on the merits. §PC 2.07(3), Wis. Adm. Code. The complainants did not request waiver of the investigation of their complaints so unilateral waiver of the probable cause determination by complainants was not available. Kumrah & Pradhan v. DATCP & DER, 94-0146, 0147-PC-ER, 2/27/97

The hearing on probable cause is a de novo proceeding and is not limited to the four corners of the initial determination. Kumrah & Pradhan v. DATCP & DER, 94-0146, 0147-PC-ER, 2/27/97

The Commission’s usual practice is to adopt, for investigative purposes, the determination of the EEOC. Vervoort v. UW-Madison, 93-0059, 0132-PC-ER, 11/22/96

Complainant was permitted to amend his letter of appeal of his discharge, filed within 30 days of the issuance of an initial determination of no probable cause to believe the complainant was discriminated against on the basis of handicap, so that the letter would serve as an appeal of so much of the initial determination as related to the allegations in the letter, where the only action taken as a consequence of the "appeal letter" was the holding of a prehearing conference and where the respondent had not alleged that any prejudice would result. Keul v. DHSS, 87-0052-PC-ER, 6/1/90


While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.

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