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717 Relationship with other proceedings/matters
The fact that complainant grieved the denial of sick leave under the applicable collective bargaining agreement does not deprive the Commission of jurisdiction over a claim filed under the FMLA. The same absence for medical reasons can be both a medical leave under the FMLA and a sick leave under the contract. Janssen v. DOC, 93-0072-PC-ER, 10/20/93
717.1 Consolidation with appeals/other complaints
Complainant's request to hold 8 cases in abeyance while proceeding on a 9th case was denied, where the issues and parties in the cases were not the same and the primary thrust of discovery would be different. Balele v. WTCSB et al., 97-0097-PC-ER, etc., 12/18/98
While there were various distinctions between the reallocation appeal and three discrimination/retaliation claims in terms of parties, issues and burdens of proof, consolidation was appropriate where two of the three personnel transactions that were the subject of the appeal were also the subject of the equal rights proceedings. It made sense in terms of judicial economy to combine the cases for one hearing on all issues rather than holding two hearings. Thorn v. DHSS, 81-401-PC, 12/18/81, distinguished. Harden & Nash v. DRL & DER, 90-0106-PC-ER, etc., 1/23/96
Complainant's request to consolidate her first and second complaints for hearing was denied where the second complaint was filed approximately six weeks before the scheduled hearing date for the first complaint, the two complaints did not share identity of issues or witnesses, consolidation would reactivate a no probable cause determination that complainant did not appeal, and consolidation would create a hardship for respondent because it would have inadequate time for discovery and to prepare for hearing on the new issues. Soliman v. DATCP, 93-0049-PC-ER, 94-0018-PC-ER, 3/2/94 (ruling by examiner)
Respondent's request for consolidation was granted where both cases related to the same subject but alleged different claims, even though complainant was only represented by counsel as to one of the two cases. Butzlaff v. DHSS, 90-0162-PC-ER, 11/13/92
The fact that complainant had an appeal pending of the reclassification of his position did not preclude him from raising a charge of sexual orientation discrimination on the basis of an allegation that a similarly situated heterosexual employee was granted a reclassification while he was denied one. Nash v. DRL & DER, 90-0107-PC-ER, 12/23/91
It is the Commission's usual practice to keep appeals separate from companion discrimination complaints unless and until a consolidated hearing becomes appropriate, in order to permit proper application of the different statutory standards and to deal with any jurisdictional problems. Thorn v. DHSS, 81-401-PC, 12/18/81
The Commission could ascertain no statutory or other basis for a conclusion that the appellant could not simultaneously pursue both an appeal and a complaint of discrimination, both alleging discrimination based on race with respect to a denial of an exceptional performance award. [Note this decision was prior to the statutory preclusion of such appeals.] Thomas v. DILHR, 78-143-PC, 1/8/79
717.2 Existence of parallel federal proceeding
Petitioner's two discrimination complaints were held in abeyance in light of her request for a stay while they were processed by the federal Equal Employment Opportunity Commission, even though respondent had filed a motion to dismiss the complaints as untimely filed, moot and for failure to state a claim. Petitioner was directed to inform the Personnel Commission, after approximately 5 months, of the status of her federal claim. However, the Commission refused to hold petitioner's related classification appeal in abeyance. Tyus v. DER et al., 97-0078-PC, etc., 1/27/99
Complainant's motion to hold the matter in abeyance pending resolution of parallel proceedings in federal court was granted where the two proceedings involved the same parties, facts and causes of action and it was undisputed that judgment on the merits of the federal claim would be conclusive as to the matter before the Commission. Goetz v. DOA & Office of the Columbia County District Attorney, 95-0083-PC-ER, 1/16/98
Complainant alleged whistleblower retaliation based on his testimony before the state legislature and his request to the Department of Labor to investigate the employer's overtime policies compared to the requirements of the Federal Labor Standards Act (FLSA). Complainant also had been a plaintiff in a federal court case where his claims included an allegation of whistleblower retaliation based on his participation in the federal court case. He claimed the same retaliatory act in the complaint as claimed in the federal court case, i.e. that the employer changed its policies regarding the use of fleet vehicles. The Commission granted the employer's motion to dismiss agreeing the complaint was precluded under res judicata principles. Hilmes v. Wis. Lottery, 91-0093-PC-ER, 9/24/93
Petitioner's request for an indefinite stay of proceedings in order to pursue his case in federal court was denied where petitioner had not yet filed a federal action, respondent opposed the request and respondent had the burden of proof as to one of the two cases before the Commission. The Commission modified petitioner's request and granted him a stay until the earlier of September 1 or 30 days from the service of any federal court proceeding, at which time the request for an indefinite stay was to be reconsidered. Hodorowicz v. WGC, 91-0078-PC, 91-0177-PC-ER, 4/23/93
The filing of a §1983 action in a court of record deprives the Commission of jurisdiction, by operation of §230.88(2)(c), Stats., over a complaint of whistleblower retaliation based on the same allegedly retaliatory conduct as the §1983 action. Dahm v. Wis. Lottery, 92-0053-PC-ER, 8/26/92
Respondent's motion to stay the proceedings before the Commission until complainant's related federal claim had been resolved was denied where the complainant indicated he preferred to proceed with the administrative proceeding before the Commission because it would be simpler and less burdensome and pointed out that he lacked the funds to conduct discovery in the judicial proceedings. There was no indication the complainant was trying to advance in both forums simultaneously. McClure v. UW-Madison, 88-0163-PC-ER, 9/19/90
The fact that a copy of the complaint was cross-filed with the U. S. Equal Employment Opportunities Commission does not deprive the Personnel Commission of jurisdiction to proceed. Acharya v. DOA, 88-0197-PC-ER, 10/3/89
That portion of complainant's proceedings before the Commission based on a claim of age discrimination was stayed pursuant to 29 U.S.C. 633(a), despite having been fully heard and partially briefed, where complainant had filed an Age Discrimination in Employment Act claim regarding the same personnel action. However, a stay was not granted as to complainant's claims of handicap discrimination and harassment also pending before the Commission, even though much of the evidence was common as to the age, handicap and retaliation claims. Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 8/18/87
Pursuant to the Age Discrimination in Employment Act, 29 U.S.C. 633(a), the Commission will stay proceedings on an age discrimination complaint pending a federal court proceeding involving the same
subject matter. Schwartz v. UW, 78-PC-ER-20, 10/2/79
717.3 Collateral estoppel/res judicata (see also 510.50)
The doctrine of claim preclusion holds that a final judgment is conclusive in all subsequent actions between the same parties as to all matters which were litigated or which might have been litigated in the former proceedings. In order for earlier proceedings to act as a claim preclusive bar in relation to the present suit, three criteria must be satisfied: 1) an identity between the parties or their privies in the prior and present suits; 2) an identity between the causes of action in the two suits; 3) a final judgment on the merits in a court of competent jurisdiction. Wisconsin courts apply the transactional rule in determining whether the claims or causes of action in the two cases are sufficiently identical: a basic factual situation generally gives rise to only one cause of action, no matter how many different theories of relief may apply. The cause of action is the fact situation on which the first claim was based. If the present claim arose out of the same transaction as that involved in the former action, the present claim is barred even though the plaintiff is prepared in the second action to present evidence or grounds or theories of the case not presented in the former action, or to seek remedies or forms of relief not demanded in the first action. In sum, the purpose of the claim preclusion doctrine is to prevent multiple litigation of the same claim, and it is based on the assumption that fairness to the defendant requires that at some point litigation involving the particular controversy must come to an end. Balele v. Wis. Pers. Comm. et al., Dane County Circuit Court, 98-CV-0257, 8/10/98; affirmed Court of Appeals, 98-2658, 5/20/99
It was inferred that the federal court intended to dismiss claims without prejudice where it entered judgment in favor of the defendants on the merits of complainant's federal civil rights claims, granted summary judgment dismissing his state claims, concluded it lacked jurisdiction over complainant's state law claims and that there was no private cause of action for such claims because the state administrative remedies were exclusive, and noted specific remedies that were available to complainant. The federal court judgment did not preclude complainant from pursuing his Fair Employment Act discrimination complaint before the Commission as a matter of claim preclusion. Balele v. Wis. Pers. Comm. et al., Dane County Circuit Court, 98-CV-0257, 8/10/98; affirmed Court of Appeals, 98-2658, 5/20/99
The doctrine of issue preclusion refers to the effect of a judgment in precluding re-litigation in a subsequent action of an issue of law or fact that has been actually litigated and decided in a prior action. The doctrine does not operate to provide a basis for a cause of action, but is, instead, an additional means by which all or part of a cause of action may be dismissed. Issue preclusion, unlike claim preclusion, does not require an identity of the parties. Issue preclusion is a narrower doctrine than claim preclusion and requires courts to conduct a fundamental fairness analysis before applying the doctrine. In order for earlier proceedings to act as an issue preclusive bar in relation to the present suit, there must be an identity between the causes of action in the two suits. Balele v. Wis. Pers. Comm. et al., Dane County Circuit Court, 98-CV-0257, 8/10/98; affirmed Court of Appeals, 98-2658, 5/20/99
Issue preclusion applied where complainant's state claim arose out of the same basic events and the same conduct by the defendants as did his previously decided federal action; complainant had the right to obtain, and did obtain, review of the federal district court judgment; the question was one of law involving one claim that was addressed in the ruling of the federal court, and there were no intervening contextual shifts in the law; the federal court was as qualified as the Commission to decide the discrimination and retaliation issues raised by complainant; there was no shift in the burden of persuasion, and there were no matters of public policy or individual circumstances involved that would render the application of issue preclusion fundamentally unfair. Where complainant's Fair Employment Act discrimination and retaliation claims were issues of fact that had been actually litigated and decided in a prior action, and after analyzing the "fundamental fairness" involved, the doctrine of issue preclusion was applied to bar further litigation. Balele v. Wis. Pers. Comm. et al., Dane County Circuit Court, 98-CV-0257, 8/10/98; affirmed Court of Appeals, 98-2658, 5/20/99
In a civil action filed in circuit court under §103.10(13), Wis. Stats., defendant’s motion for summary judgment based on issue preclusion, claim preclusion and estoppel of record was denied. The Personnel Commission had previously considered the merits of a FMLA claim by plaintiff relating to the defendant’s decision to terminate his probationary employment. The Commission’s decision had been affirmed on judicial review. Plaintiff’s new action also alleged a violation of the FMLA with respect to the same personnel decision. The plain language of §103.10(13), Wis. Stats., "an employe . . . may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation," and "An action under par. (a) shall be commenced within . . . 60 days from the completion of an administrative proceeding, including judicial review, concerning the same violation," clearly expresses the legislative intent to abrogate the common law doctrines of issue preclusion, claim preclusion and estoppel by record. Butzlaff v. Wis. DHFS, Dane County Circuit Court , 97-CV-1319, 2/4/98
Summary judgment dismissing complainant's federal handicap discrimination claim was res judicata on complainant's handicap discrimination claim brought before the Commission, since applying transactional analysis to both actions, complainant's state claim arose out of same events and conduct of Army National Guard personnel regarding complainant's dismissal from Wisconsin Army National Guard which events and conduct showed that complainant's dismissal was not based upon handicap discrimination. Schaeffer v. State Pers. Comm. & DMA, 150 Wis. 2d 132 (Court of Appeals, 1989)
Summary judgment dismissing complainant's federal handicap discrimination claim was res judicata as to complainant's handicap discrimination claim brought before the Commission, since complainant had ample opportunity to have claim fully litigated but failed to offer any facts in response to respondents' dismissal motion in federal court which was accompanied by affidavits and a set of proposed findings of fact from which the federal court concluded that complainant's dismissal from Wisconsin Army National Guard could not have been product of handicap discrimination. Schaeffer v. State Pers. Comm. & DMA, 150 Wis. 2d 132 (Court of Appeals, 1989)
The language of §111.39(4)(b), Stats., indicating that when the Commission finds probable cause and is unable to resolve the problem informally, it "shall issue" a notice of hearing, in conjunction with the issuance of an initial determination of probable cause prior to the complainant's pursuit of a federal court action, does not give a complainant a "right" to a hearing which is unaffected by the federal court decision and which cannot be barred by res judicata. Schaeffer v. State Pers. Comm. & DMA, 150 Wis. 2d 132 (Court of Appeals, 1989)
Imposing res judicata as a bar to the resumption of the Commission proceedings after an adverse federal decision does no violence to the "independent action" principles underlying Title VII where all of the elements of the doctrine are met -- identity of parties and issues, and, most importantly, the opportunity to litigate them in the former proceeding. Schaeffer v. State Pers. Comm. & DMA, 150 Wis. 2d 132 (Court of Appeals, 1989)
In a civil action filed in circuit court under §103.10(13), Wis. Stats., defendant’s motion for summary judgment based on issue preclusion, claim preclusion and estoppel of record was denied. The Personnel Commission had previously considered the merits of a FMLA claim by plaintiff relating to the defendant’s decision to terminate his probationary employment. The Commission’s decision had been affirmed on judicial review. Plaintiff’s new action also alleged a violation of the FMLA with respect to the same personnel decision. The plain language of §103.10(13), Wis. Stats., "an employe . . . may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation," and "An action under par. (a) shall be commenced within . . . 60 days from the completion of an administrative proceeding, including judicial review, concerning the same violation," clearly expresses the legislative intent to abrogate the common law doctrines of issue preclusion, claim preclusion and estoppel by record. Butzlaff v. Wis. DHFS, Dane County Circuit Court , 97 CV 1319, 2/4/98
Issue preclusion applies to a complaint of discrimination and whistleblower retaliation relating to two non-selection decisions where the complaint was held in abeyance pending resolution of a virtually identical claim involving the same parties filed in (state) circuit court, the state action was removed to federal court and the federal proceeding was dismissed on a motion for summary judgment in an order that included an extensive discussion of complainant’s Title VII claims, rejection of his claims of disparate treatment and retaliation, and a statement by the court that the Wisconsin Fair Employment Act and Ch. 230, Wis. Stats., do not provide a private right of action. Balele v. DOA et al., 93-0144-PC-ER, 3/26/97; affirmed by Dane County Circuit Court, Balele v. Wis. Pers. Comm et al., 97-CV-1389, 10/30/97; affirmed Court of Appeals, 98-2866, 5/20/99
The doctrine of issue preclusion applies even if the result in the federal court proceeding was erroneous. Balele v. DOA et al., 93-0144-PC-ER, 3/26/97; affirmed by Dane County Circuit Court, Balele v. Wis. Pers. Comm et al., 97-CV-1389, 10/30/97; affirmed Court of Appeals, 98-2866, 5/20/99
A summary judgment is subject to the doctrine of issue preclusion, citing Schaeffer v. State Personnel Comm., 150 Wis. 2d 132, 441 N.W.2d 292 (Ct. App. 1989). Balele v. DOA et al., 93-0144-PC-ER, 3/26/97; affirmed by Dane County Circuit Court, Balele v. Wis. Pers. Comm et al., 97-CV-1389, 10/30/97; affirmed Court of Appeals, 98-2866, 5/20/99
Where previously filed cases involved the same parties as in the present case and resulted in the issuance of a decision on the merits of complainant’s discrimination claims and a companion appeal, which included resolution of disputed acts and resolution of the ultimate legal issues raised, and where complainant had a full and fair opportunity to litigate all his factual and legal disputes and took advantage of that opportunity, both the findings of fact and the legal determinations were binding on the parties. In 1992, the Commission issued a decision on the merits of the complainant’s allegations of discrimination and "just cause" appeal regarding his indefinite suspension from work in 1991. Pursuant to the decision which found no discrimination but also concluded there was no just cause for the suspension, complainant was restored to employment with respondent and the matter was dismissed pursuant to a subsequent settlement agreement. After transferring to another agency and then resigning, complainant asked to be restored to a position with respondent but was not selected. Complainant filed a new complaint in which he included a detailed narrative of the events which led up to the indefinite suspension. Respondent’s motion in limine was granted as to those allegations. Jacobsen v. DHFS, 96-0089-PC-ER, 2/6/97
A federal court's decision to dismiss, on a motion for summary judgment, various claims of adverse conduct involving the same parties was res judicata with respect to separately cognizable claims raised in a subsequent proceeding before the Commission. Balele v. DOA, 94-0090-PC-ER, 2/20/95
Taking an appeal from a federal court decision does not preclude the application of res judicata and collateral estoppel arising from that decision, citing Smith v. Schreiner, 86 Wis. 19, 56 N.W. 160 (1893); Luebke v. Marine Natl. Bank of Neenah, 567 F. Supp. 1460 (E.D. Wis. 1983). Balele v. DOA, 94-0090-PC-ER, 2/20/95
While issues which may be foreclosed under the doctrine of collateral estoppel include issues of ultimate fact, evidentiary fact or of law, it its necessary that there be an identity of issues. Collateral estoppel did not apply to factual material alleged as evidentiary support for claims of sex and handicap discrimination relative to the classification of the complainant's position where, such claims were not present in complainant's federal case. However, collateral estoppel did apply to complainant's claims of race and national origin discrimination which were also made in his prior federal case. Balele v. DOA, 94-0090-PC-ER, 2/20/95
Res judicata barred complainant's attempt to proceed with his Commission case where complainant filed a charge of discrimination with the Commission which was later pursued in federal court and dismissed with prejudice, and complainant had a full and fair opportunity to litigate his federal court case and even though the federal court applied federal law and the Commission applies state law. Thomas v. DILHR, 92-0066-PC-ER, 6/23/94
Res judicata applies whether a case is dismissed with prejudice after a jury trial or, as in complainant's case, upon agreement of the parties. Thomas v. DILHR, 92-0066-PC-ER, 6/23/94
Complainant's claims before the Commission were barred on res judicata grounds where they had previously filed related claims in circuit court proceedings which had been dismissed. Complainants had filed 5 discrimination cases with the Commission between 1985 and 1986, which were held in abeyance while they pursued the complaint they filed in 1988, in Winnebago County circuit court. That court dismissed the case with prejudice based on statute of limitation concerns and such dismissal was upheld by the Court of Appeals in March 1990. The complainant commenced an action in Dane County circuit court in the fall of 1991 which the court dismissed with prejudice in July 1992, based on res judicata principles. The complainants then returned to pursue their pending cases before the Commission. The Commission dismissed all the cases on res judicata principles. Krebs & Crawley v. DILHR, 85-0131-PC-ER, etc., 3/11/94
A sufficient identity of parties exists for purposes of the application of the doctrine of res judicata to actions before the Commission when a state agency is identified as the party respondent/defendant in one action and an office of that state agency is identified as the party in the other action, citing Weatherall v. DHSS, 84-0047-PC-ER, 10/7/87, affirmed by Ozaukee County Circuit Court, Weatherall v. Personnel Commission, 87-CV-481-B1, 9/15/88. Krebs & Crawley v. DILHR, 85-0131-PC-ER, etc., 3/11/94
Dismissal of a case with prejudice based on a failure to file the case within the applicable statute of limitations has a preclusive effect on a parallel action brought in another forum. Krebs & Crawley v. DILHR, 85-0131-PC-ER, etc., 3/11/94
The Commission lacks authority to assert jurisdiction over a complaint filed six months after the dismissal of another complaint arising from the same transaction. DePagter v. UW-Madison, 93-0003-PC-ER, 7/22/93
Where the arbitration award concerning the contractual grievance of complainant's discharge did not address the issue of race or arrest record discrimination and there was nothing to suggest that this would have even been possible under the contract in question, the matter raised in the complaint of discrimination was not identical in all respects with that decided in the first proceeding. Therefore, the doctrine of collateral estoppel did not apply. Whitley v. DOC, 92-0080-PC-ER, 7/9/93
Respondent's motion to give preclusive effect to a recent arbitration award determining the contractual grievance of complainant's discharge was denied. The arbitration decision did not address complainant's claims of race or arrest record discrimination. It was not possible, at the motion stage, to disentangle the more general findings by the arbitrator, i.e., that there was just cause for the discharge, that there was a nexus between complainant's actions and the demands of his job, and that the discipline was not excessive, from the issues of race and arrest record discrimination which were not involved in the arbitration. However, the arbitration award and record could be used in evidence at the discrimination hearing, citing Dohve v. DOT, 84-0100-PC-ER, 11/3/88. Whitley v. DOC, 92-0080-PC-ER, 7/9/93
An arbitrator's conclusion that there was just cause for discharging the complainant did not collaterally estop the complainant from pursuing his claim of handicap discrimination. There was no way to determine, from the arbitrator's award, the degree of correlation, if any, between the legal principles controlling the arbitrator's conclusion that there was just cause for the discharge, and hence no violation of the contract, and the legal principles that control with respect to the Fair Employment Act. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93
An internal agency investigative report finding probable cause to believe that complainant had been discriminated against as she alleged does not have res judicata or collateral estoppel effect against the employing agency in a subsequent Commission FEA proceeding. There is no identity of issues because the issue before the Commission is whether discrimination occurred, not whether there is probable cause to believe discrimination occurred. There is no identity or comparability of process because the investigation had few of the attributes of a due process administrative hearing. Miller v. DOT, 91-0117, 0142-PC-ER, 3/10/93
The Commission declined to apply collateral estoppel arising from findings made with respect to essentially the same claims in Circuit Court, where 1) the Court's findings were tentative and subject to possible change or addition and 2) where the Court retained jurisdiction over part of the case so that there apparently was no appealable order. Balele v. UW-Madison, 91-0002-PC-ER, 6/11/92
Res judicata was not applicable where a prior appeal proceeding concerned the issue of whether the action of DMRS in removing complainant from a register violated standards established by the civil service code, and the pending complaint raised issues of whether an agent of DOT pursued an allegation that complainant had cheated on the exam and subsequently conspired with a DMRS agent to have her removed from the register, because of her handicap. However, collateral estoppel could be applied with respect to the findings made in the decision of the appeal. Those findings would be given preclusive or binding effect with respect to the pending complaint but they did not dictate the dismissal of the complaint. Dugan v. DOT & DMRS, 88-0169-PC-ER, 4/17/92
Where complainant had asserted the same basic facts in his complaint of discrimination based on race and color before the Commission as he did in a federal complaint involving the same parties, and where the U.S. District Court ruled against complainant on the merits of his race discrimination claim on the ground that he did not make out a prima facie case, res judicata acted to bar complainant from proceeding with respect to his charge before the Commission. Oriedo v. DER & DOT, 90-0067-PC-ER, 9/5/91
The Commission rejected respondent's argument that the worker's compensation act served as complainant's exclusive remedy where complainant had been on leave from work for reasons other than a work-related injury, where respondent refused to return complainant to her former post but offered her a different post and where complainant rejected the offer based on medical advice that such duties might aggravate her colitis and irritable bowel. The exclusivity provision of the Worker's Compensation Law only comes into play when the employer has refused to allow the employe to return to work after an absence due to a work-related injury. Theiler v. DHSS, 87-0031-PC-ER, 10/18/90
In deciding a motion to dismiss on the ground of res judicata in a whistleblower case, the language in §230.88(2)(b), Stats., requires the Commission to give an arbitrator's award preclusive effect as to those specific matters determined in the arbitration that turn out to be material to the complaint. The Commission held that it could not conclude the arbitrator's award "necessarily depended" on the arbitrator implicitly rejecting complainant's retaliation theory. Sorge v. DNR, 85-0159-PC-ER, 11/23/88
In a whistleblower case in which the complainant alleged he made a protected disclosure relating to the use of tools and materials by other employes for private purposes, a conclusion by an arbitrator as to the truth of whether there was widespread misconduct by other employes similar to that relied upon in discharging the complainant cannot serve as the basis for dismissing the whistleblower claim. The whistleblower law only requires that the employe reasonably believes the information disclosed, not that that information be true. Respondent's motion to dismiss was denied. Sorge v. DNR, 85-0159-PC-ER, 11/23/88
The Commission declined to give preclusive effect to an arbitrator's decision. The arbitrator concluded that the complainant had been discharged for just cause because of poor work performance and violation of work rules but also stated that neither party to the grievance had litigated, in any manner, issues relating to sex discrimination. The Commission quoted with approval Becton v. Detroit Terminal of Consol. Freightways, 687 F. 2d 140, 142 (6th Cir. 1982) as establishing the appropriate role of an arbitration award in a discrimination proceeding: 1) as persuasive evidence that the grounds found to be just cause for discharge are sufficient to amount to just cause, 2) to be deferred to in issues of contract construction and 3) where the award favors the employer, as meeting the burden of articulating a legitimate, nondiscriminatory reason. Dohve v. DOT, 84-0200-PC-ER, 11/3/88
Further proceedings before the Commission relating to the subject charge of discrimination were barred where complainant had filed a federal court proceeding based on 42 U.S.C. §§1981 and 1983 and on Title VlI, the federal court had entered judgment in favor of the defendants and dismissed the case, the cases before the federal court and the Commission involved the same parties (even though there were three individual defendants named in the federal proceeding) and arose from the same transactions. Weatherall v. DHSS, 84-0047-PC-ER, 10/7/87, affirmed by Ozaukee County Circuit Court, Weatherall v. Personnel Commission, 87-CV-481-B1, 9/15/88
The fact the complainant's federal case was based on different laws than the claim before the Commission does not prevent the Commission from applying res judicata where the cases involved the same parties and arose from the same transaction. Weatherall v. DHSS, 84-0047-PC-ER, 10/7/87, affirmed by Ozaukee County Circuit Court, Weatherall v. Personnel Commission, 87-CV-481-B1, 9/15/88
Respondent's failure to object at the time the complainant requested a stay in the Commission proceedings in order to pursue claims in federal court do not foreclose respondent from pleading res judicata as to the claim before the Commission after a final judgement in favor of the defendants was entered in the federal action. Weatherall v. DHSS, 84-0047-PC-ER, 10/7/87, affirmed by Ozaukee County Circuit Court, Weatherall v. Personnel Commission, 87-CV-481-B1, 9/15/88
There were no policy reasons to avoid the application of res judicata where the federal court had simply utilized a different substantive approach to causation in finding for defendants than the Commission has utilized because such a result is always a possibility when a party elects to procede under federal rather than state law. Weatherall v. DHSS, 84-0047-PC-ER, 10/7/87, affirmed by Ozaukee County Circuit Court, Weatherall v. Personnel Commission, 87-CV-481-B1, 9/15/88
The doctrine of res judicata applies where complainant had a full opportunity in a federal court proceeding to have litigated essentially the same claim embodied in his charge of discrimination and the federal claim was dismissed on a motion for summary judgment. The complainant had the opportunity in the federal proceeding to have presented any evidence of handicap discrimination and/or retaliation he may have had in addition to the evidence he actually presented and he either had no additional evidence or he failed to present it, and there was an identity between the parties and the issues in the two proceedings. The pendency of an appeal of the federal court judgment did not deprive the judgment of its preclusive effect. However, the Commission retained jurisdiction during the pendency of the appellate proceedings. Schaeffer v. DMA, 82-PC-ER-30, 6/24/87; affirmed by Dane County Circuit Court, Schaeffer v. State Pers. Comm. & DMA, 87-CV-7413, 6/22/88; affirmed by Court of Appeals, 150 Wis.2d 132 (1989)
Respondent's motion to dismiss was denied where the complainant alleged his discharge constituted handicap discrimination, the complainant had also pursued a contractual grievance contesting the discharge and related reprimands resulting in an arbitration proceeding where the arbitrator found just cause for the reprimands and the termination and during the arbitration proceeding the complainant's representative explicitly withdrew any claim of discrimination. The arbitrator's award addressed complainant's arguments that the respondent applied a singular, unreasonable production standard to complainant and that respondent failed to follow a reasonable course of progressive discipline and corrective action in the context of complainant's mental condition but the award did not necessarily resolve issues of handicap discrimination and accommodation. Fischer v. UW-Madison, 84-0097-PC-ER, 12/18/86
Respondent's motion to dismiss was granted where the complainant's Title VII action resulted in a finding of no discrimination which was affirmed by the Court of Appeals, the parties were identical, the complaint before the Commission was a copy of the charge of discrimination filed with the EEOC and the basis for the Title VII action and the legal framework is essentially the same under the Wisconsin Fair Employment Act and Title VII. The matter before the Commission had been held in abeyance pending completion of the federal proceedings under Title VII. Namenwirth v. UW-Madison, 79-PC-ER-93, 2/13/86
The Commission dismissed a charge of discrimination due to a settlement agreement entered into by the same parties where the settlement agreement was designated as a settlement of "any and all claims... that Appellant has or may have, whether known or unknown," and where the current claim was necessarily based on or arose out of events preceding the execution of the settlement agreement. Bartell v. DHSS, 84-0038-PC-ER, 9/13/85
The elements of res judicata were not present where the final decisions of the arbitrator (contractual grievance) and the Labor Industry Review Commission (unemployment compensation proceeding) neither explicitly nor necessarily addressed and decided the issues before the Commission on complainant's discrimination complaint and where complainant litigated neither some nor all of the alleged bases of discrimination in the other proceedings. The commission found that complainant was not precluded from relitigating the matter of his discharge under the Fair Employment Act before the Commission. Massenberg v. UW-Madison, 81-PC-ER-44, 7/21/83
The union's failure to file and pursue a contractual grievance on behalf of the complainant in regard to her layoff was held to not be dispositive of the issue of whether respondent complied with the requirements of the applicable bargaining agreement. Res judicata did not apply. Cowie v. DHSS, 80-PC-ER-115, 4/15/83
The doctrine of res judicata was applied to a final award made by an arbitrator. The arbitrator had determined there was just cause for the discharge and that "all the reprimands issued to the grievant were neither harassment nor did they constitute a singling out of the grievant for ununiform. treatment." In the matter before the Commission, complainant had charged race discrimination with respect to her discharge from employment with the respondent and alleged her supervisor had subjected her to continuous harassment. Complainant had a full opportunity in the arbitration proceeding to have litigated essentially the same claim embodied in her complaint. She had an opportunity in the arbitration to present any evidence of racial discrimination she may have had in addition to the evidence she actually presented, but she either had no evidence or failed to present it. Kotten v. DILHR, 81-PC-ER-23, 1/31/83
Where an employe filed both a civil service appeal and a complaint of discrimination regarding the same transaction, and the proceedings involved the same parties and presented the same issue, a final decision on the merits in the appeal acted to bar the complaint of discrimination pursuant to the doctrine of issue preclusion or collateral estoppel. Jacobson v. DILHR, 79-PC-ER-11, 6/3/81
717.5 Effect of prior settlement agreement reached in another proceeding (see also 738.02)
Where previously filed cases involved the same parties as in the present case and resulted in the issuance of a decision on the merits of complainant’s discrimination claims and a companion appeal, which included resolution of disputed acts and resolution of the ultimate legal issues raised, and where complainant had a full and fair opportunity to litigate all his factual and legal disputes and took advantage of that opportunity, both the findings of fact and the legal determinations were binding on the parties. In 1992, the Commission issued a decision on the merits of the complainant’s allegations of discrimination and "just cause" appeal regarding his indefinite suspension from work in 1991. Pursuant to the decision which found no discrimination but also concluded there was no just cause for the suspension, complainant was restored to employment with respondent and the matter was dismissed pursuant to a subsequent settlement agreement. After transferring to another agency and then resigning, complainant asked to be restored to a position with respondent but was not selected. Complainant filed a new complaint in which he included a detailed narrative of the events which led up to the indefinite suspension. Respondent’s motion in limine was granted as to those allegations. Jacobsen v. DHFS, 96-0089-PC-ER, 2/6/97
Where after a hearing on the merits, the Commission issued a decision finding no just cause for the imposition of a suspension and ordered complainant restored to employment with respondent, and the parties then reached a settlement agreement, the agreement could not be read so broadly as to waive claims of discrimination that might arise during complainant’s restored employment. Such a broad reading would be contrary to good public policy as opening the door for employers to settle claims of discrimination by returning a complaining employe to work but only to make conditions so intolerable as to force a later resignation. Jacobsen v. DHFS, 96-0089-PC-ER, 2/6/97
The Commission dismissed a charge of discrimination (alleging that complainant was being paid less for performing the same work as men who had less seniority) due to a settlement agreement entered into by the same parties where the settlement agreement was designated as a settlement of "any and all claims ... that Appellant has or may have, whether known or unknown," and where the current claim was necessarily based on or arose out of events preceding the execution of the settlement agreement. Bartell v. DHSS, 84-0038-PC-ER, 9/13/85
Where complaints of sex discrimination were filed with DILHR and federal agencies regarding a BFOQ at MMHI (Mendota Mental Health Institute), and were settled by stipulations approved by those agencies, and shift changes engendered by the settlement agreement led an affected employe, who was not a party to or represented in the first complaints, and who had no notice of the settlement agreement, to file a complaint of sex discrimination with the Commission, that complaint was not barred by the first settlement agreement. Chadwick v. DHSS, 81-PC-ER-14, 4/2/82
717.7 Exclusivity of or preemption by other laws/proceedings
Federal law preempts the Wisconsin Fair Employment Act with respect to a claim raised by national guard member who tested positive for human immunodeficiency virus and who challenged options available under federal national guard policy as being discriminatory toward members of Wisconsin Army National Guard. Hazelton v. State Pers. Comm., 178 Wis. 2d 776, 505 N.W.2d 793 (Court of Appeals, 1993)
The Commission’s prior order dismissing a portion of complainant’s claim based on the exclusivity provision of the Worker’s Compensation Act was rescinded in light of the decision by the Wisconsin Supreme Court in Byers v. LIRC, 208 Wis. 2d 388 (1997), which held that the exclusivity provision of the Worker’s Compensation Act does not prohibit a claim under the Wisconsin Fair Employment Act. Lehman v. DNR, 95-0033-PC-ER, 7/16/97
Where there was an insufficient basis on which to conclude that complainant’s handicap discrimination claim was based upon conduct arising from his work-related injuries and the medical treatment arising therefrom, rather than upon a handicap arising from one or more surgeries that did not result from his work-related injuries, respondent’s motion to dismiss under the Workers’ Compensation Act exclusivity provision was denied. Ledwidge v. UW-Madison, 96-0066-PC-ER, 1/16/96
Worker's Compensation Act exclusivity was not a bar to complainant's allegations of an extensive litany of acts of sexual harassment and discrimination throughout a six year period of employment, because the alleged intentional sexual harassment was not an "accident" within the meaning of the WCA, applying Lentz v. Young, 195 Wis. 2d 457 (Ct. App., 1995). Reinhold v. Office of Columbia County District Attorney & Bennett, 95-0086-PC-ER, 1/3/96
The question of Worker's Compensation Act exclusivity is an issue of subject matter jurisdiction that can be raised at any time and cannot be waived, citing Powers v. UW-System, 92-0746-PC, 6/25/93. Longdin v. DOC, 93-0026-PC-ER, 7/27/95
Only complainant's handicap discrimination claim was subject to dismissal as a consequence of the exclusivity provision. Complainant was permitted to proceed regarding her claim of sex discrimination arising from the alleged failure to provide her with a light-duty position because it alleged an injury that was unrelated to the work injury she suffered to her left shoulder. Longdin v. DOC, 93-0026-PC-ER, 7/27/95
Complainant's request for a stay of her whistleblower complaint due to having filed a claim in circuit court which included a cause of action alleging violation of her rights under §230.80, et. seq., was denied. Instead, the complaint was dismissed as required by §230.88(2), Stats. Tolley v. Office of the Commissioner of Transportation, 93-0086-PC-ER, 2/22/95
The exclusivity provision of the Worker's Compensation statute barred consideration of complainant's claim that he was terminated in 1992 because of his handicap where respondent's reason for termination was continuing medical problems which resulted solely from a work injury in 1986 that was the subject of a Worker's Compensation claim. Kafar v. DHSS, 92-0076-PC-ER, 7/22/93; affirmed by Racine County Circuit Court, Kafar v. Pers. Comm., 93 CV 1985, 6/10/94
Petitioner's handicap discrimination charge and discharge appeal were barred by exclusivity provision of Worker's Compensation Act (WCA), where he had pursued a WCA claim for work-place injuries which prevented him from returning to work subsequent to the injuries and which resulted in his discharge. Powers v. UW, 92-0746-PC, 92-0183-PC-ER, 6/25/93
Worker's Compensation Act exclusivity runs to the Commission's subject matter jurisdiction and can be raised at any time. Powers v. UW, 92-0746-PC, 92-0183-PC-ER, 6/25/93
Complainant's claim of handicap discrimination was not barred by the exclusivity provision of the Worker's Compensation statute where the action complained of, the denial of a transfer request, was an independent decision by respondent with a connection that was too remote to complainant's work-related injuries. The transfer denial occurred 7 months after complainant returned to work after his last work-related injury. Complainant alleged he was denied the transfer because respondent perceived him as handicapped. The only relationship between the subject of the complaint and the work-related injuries was the complainant's allegation that respondent's perception of those injuries was causal with respect to respondent's perception of him as handicapped. The denial of transfer was not an "injury" compensable under the Worker's Compensation Act. Johnson v. DHSS, 89-0080-PC-ER, 4/30/93
The worker's compensation act did not prevent complainant from filing a claim of handicap discrimination regarding a refusal to rehire where the complainant alleged that the refusal to rehire was based entirely upon injuries incurred prior to commencing employment with respondent rather than upon work-related injuries. Van Zutphen v. DOT, 90-0141-PC-ER, 5/1/92
The Commission has the authority to decide whether its legislatively-granted authority under the FEA was preempted by federal law. Aries v. DMA, 90-0149-PC-ER, 11/6/91
Where complainant alleged discrimination on the basis of sexual orientation with respect to the refusal to permit him to enlist in the Wisconsin national guard (WIARNG), where, based on statute, at the time complainant was denied enlistment in WIARNG he in effect was also denied enlistment in the National Guard of the Unites States (NGUS), and where federal regulations provided that homosexual behavior was cause for rejection of enlistment, federal law preempted the Fair Employment Act on the subject. Aries v. DMA, 90-0149-PC-ER, 11/6/91
Complainant's charge of discrimination based on handicap and sexual orientation arising from his involuntary separation from the Wisconsin National Guard after having been diagnosed HIV positive as a result of a blood test was dismissed where there was a conflict between the state and federal law applicable to the case. Hazelton v. DMA, 88-0179-PC-ER, 11/6/91; reversed by Dane County Circuit Court, Hazelton v. Wis. Pers. Comm., 91-CV-4770, 7/13/92; reversed by Court of Appeals, Hazelton v. State Pers. Comm., 178 Wis. 2d 776, 505 N.W.2d 793
Where the respondent's refusal to employ the complainant resulted solely from complainant's pain in his right wrist, complainant was awarded worker's compensation benefits for this pain and complainant's pain in his wrist was the sole basis for his complaint of handicap discrimination, the complainant's exclusive remedy was under the Worker's Compensation Act and his complaint was dismissed. Olson v. UW-Stout, 87-0176-PC-ER, 5/1/91
As a general matter, where an employe is injured on the job and the employer then refuses to rehire that employe because of that injury, the Worker's Compensation Act provides the sole remedy regardless of whether the employe alleges that the injury caused a handicap or a perceived handicap that motivated the employer. Meinholz v. DOT, 90-0147-PC-ER, 1/11/91
Where the complainant suffered an on-the-job injury, was unable to work for a short period of time and was then laid off, he would have been able to have pursued a claim under the Worker's Compensation Act so the exclusivity provision of that act usurped the Commission's jurisdiction over his charge of handicap discrimination. Meinholz v. DOT, 90-0147-PC-ER, 1/11/91
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.