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

Section 732

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732 Motions

Section 227.42(1)(d), Stats., provides authority for state agencies, such as the Personnel Commission, to develop appropriate summary disposition procedures, where the disposition does not require the resolution of any disputes of material fact, unless such summary procedures are otherwise precluded by statute. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98

The Commission's consideration of matters beyond those plead in the complaint does not preclude the Commission from granting a motion for failure to state a claim. Balele v. Wis. Pers. Comm. et al., Court of Appeals, 98-1432, 12/23/98

Appellant was put on notice that a motion to dismiss was pending due to his failure to appear at the scheduled hearing and he was given more than a fair opportunity to explain, in writing, his absence. Appellant failed to explain his absence by the established deadline. The Commission was not required to give him a separate hearing on whether he had good cause for missing the hearing. Oriedo v. Wis. Pers. Comm. et al., Dane County Circuit Court, 98 CV 0260, 12/11/98

Respondent's motion to dismiss for failure to prosecute was granted, where complainant had previously submitted a written statement that he would not attend the scheduled hearing the following week, which he described as "essentially meaningless," and would not withdraw his complaint of age discrimination relating to the failure to select him for a faculty vacancy. Huff v. UW (Superior), 97-0105-PC-ER, 3/10/99

Dismissal (or default judgment) for a party's first failure to appear at a prehearing conference is appropriate only where sufficiently egregious circumstances exist. Balele v. DOR, 98-0002-PC-ER, 2/24/99

The failure of respondent's attorney to inform complainant of respondent's request to postpone the prehearing conference was not a sufficiently egregious circumstance to justify granting default judgment. Balele v. DOR, 98-0002-PC-ER, 2/24/99

Failure to dispute pleadings did not automatically entitle complainant to a judgment by default. Balele v. DOR, 98-0002-PC-ER, 2/24/99

Respondent's motion to dismiss for failure to state a claim was denied as to complainant's allegation of FEA retaliation against the Department of Health and Family Services (DHFS), where complainant, who was employed by the University of Wisconsin - Green Bay, contended she had "actively resisted the DHFS actions that the Commission has found in the Initial Determination to be discriminatory." It was not clear that complainant could not prevail as to the retaliation claim. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 2/10/99

Complainant's motion for judgment on the pleadings and respondent's motion for summary judgment were the equivalent of opposing motions for summary judgment. Oriedo v. DOC, 98-0124-PC-ER, 2/2/99

Where respondent's motion for summary judgment was filed 3 days after complainant's motion for judgment on the pleadings but did not mention complainant's motion, and where respondent did not submit a brief relating to complainant's motion pursuant to a schedule established by the Commission, complainant still was not entitled to default judgment because the motion for summary judgment and the motion for judgment on the pleadings were competing motions. Oriedo v. DOC, 98-0124-PC-ER, 2/2/99

Respondent's motion for summary judgment was denied where complainant contended that respondent's discretionary decision to reassign a career executive employe to a vacant career executive position within the agency was discriminatory because respondent knew the reassignment had a disparate impact on minorities and because respondent knew that complainant, who is black, was an applicant for the vacancy. The applicable administrative rule, §ER-MRS 30.07(1), Wis. Adm. Code, permit an appointing authority to make such a reassignment "provided it is reasonable and proper," but there was nothing in complainant's submission suggesting complainant conceded the reassignment was reasonable and proper. Oriedo v. DOC, 98-0124-PC-ER, 2/2/99

In determining whether complainant had identified a conflict between the administrative rules, which permitted reassignment from one career executive position to a vacant career executive position in the same agency "provided it is reasonable and proper," and statutory provisions, respondent was entitled to summary judgment with respect to complainant's contention that the rule was invalid where the rule did not establish any criteria nor specify the results to be obtained by an appointing authority when deciding whether or not to grant a reassignment request. Oriedo v. DOC, 98-0124-PC-ER, 2/2/99

No other sanction short of dismissal adequately addressed complainant's pattern of contumacious behavior. Respondent's motion to dismiss for failure to prosecute was granted where complainant's actions amounted to egregious conduct. Complainant was allowed a great deal of latitude in proceeding with his cases and was given every reasonable opportunity to present his cases, but failed to appear at the fourth day of hearing and failed to provide any medical documentation that he was too ill to have attended the hearing. Complainant's credibility had been severely debilitated and he demonstrated a lack of good faith in his approach to the processing of his cases at the hearing stage. Allen v. DOC, 95-0057-PC-ER, etc., 11/4/98

Where there were disputed issues of fact regarding the suitability of positions offered to complainant before her resignation and where complainant claimed that she was forced to resign due to respondent's failure to accommodate her disability, respondent's motion to dismiss for failure to state a claim was denied. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98

An allegation that respondent's answer to a complainant "poisoned" complainant's chances to return to work with respondent in a positive atmosphere did not constitute an adverse employment action and could not serve as the basis for a discrimination claim, citing Larsen v. DOC, 91-0063-PC-ER, 7/11/91. Complainant had previously resigned from her position with respondent. Respondent's motion to dismiss for failure to state a claim was granted. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98

Dismissal was too severe a sanction for complainant's failure to appear at a conference relating to a Family Medical Leave Act claim. Even though complainant knew of the importance of appearing at the conference and had no good excuse for failing to appear, she telephoned the hearing examiner three hours after the conference to explain her failure to appear and made herself available for a second conference to attempt to resolve the matter informally. Neumaier v. DHFS, 98-0180-PC-ER, 11/4/98

Complainant, a female, failed to state a claim of sex discrimination with respect to a non-selection decision where a female was hired and where complainant failed to argue any other type of prima facie case nor did one appear from complainant’s factual allegations. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98

Complainant failed to state a claim of marital status discrimination with respect to a non-selection decision where there was no allegation that anyone on the search committee knew complainant was divorced. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98

Complainant failed to state a claim of marital status discrimination when she contended management in the state agency that previously employed her disapproved of a relationship she had with another employe of that agency who was married, thereby affecting the references provided to her prospective employer, a second agency. If her former employer disapproved of complainant's relationship with a married person, the basis for that disapproval had nothing to do with complainant's marital status. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98

Complainant failed to state a claim of FEA retaliation relating to a non-selection decision where respondent's only knowledge of complainant's protected activity was a comment made to one member of the search committee that complainant resigned her position with another state agency because that it was "political." Complainant's contention that respondent should have deduced some bias from this remark was too tenuous to constitute an awareness by respondent of complainant's protected activity, a necessary element of a prima facie case of retaliation discrimination. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98

Respondent's motion to dismiss for failure to state a claim of disability discrimination relating to a non-selection decision was denied, even though respondent denied that anyone on the search committee perceived complainant as having a mental impairment, where complainant pointed to various remarks provided to the committee and argued the committee must have inferred a disability of mental impairment. The Commission was unable to conclude as a matter of law that there was no conceivable way that complainant could establish that element of a disability claim. Olmanson v. UW (Green Bay) & DHFS, 98-0057-PC-ER, 10/21/98

It is complainant's burden of proof to demonstrate that the allegations raised in his complaint were timely filed. When analyzing this question in the context of respondent's motion to dismiss, it was appropriate to construe the allegations raised in the complaint in a light most favorable to complainant. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98

Filing a complaint of whistleblower retaliation is itself a protected activity under the whistleblower law. Therefore, a disciplinary action threatened or imposed after respondent learned of complainant's charge of whistleblower retaliation could constitute illegal retaliation under the whistleblower law. Benson v. UW (Whitewater), 97-0112-PC-ER, etc., 8/26/98

Respondent's motion for summary judgment was denied as to complainant's disability claim arising from two alleged decisions not to recall the complainant even though the person who selected the other two individuals for the positions was not aware of complainant's disability at the time. The record did not indicate who had excluded complainant from the recall process. Sheskey v. DER, 98-0063-PC-ER, 8/26/98

Respondent's motion for summary judgment was denied as to a claim of disability discrimination arising from an alleged failure to recall the complainant. The Commission rejected respondent's theory that complainant's receipt of disability benefits based on a representation of total disability should operate as an automatic bar to the disability discrimination claims where the disability benefit plan's definition of "total disability" did not take into account whether complainant could work with accommodations. Issues of fact remained. Sheskey v. DER, 98-0063-PC-ER, 8/26/98

Respondent's motion to dismiss for failure to state a claim was denied where complainant alleged that he was not interviewed, not selected, not appointed and not notified of the appointment to fill a particular vacancy, because of his protected status. Oriedo v. DPI et al., 98-0042-PC-ER, 8/12/98

Respondent's motion to dismiss for failure to state a claim was denied where complainant alleged that, because of his protected status, respondents did not investigate his concerns and used discriminatory post-certification practices, including unbalanced interview panels. Oriedo v. DPI et al., 98-0042-PC-ER, 8/12/98

Respondent's motion to dismiss for failure to state a claim was denied where complainant alleged he was not hired because, at least in part, he had previously filed complaints of discrimination against the respondents. Oriedo v. DPI et al., 98-0042-PC-ER, 8/12/98

The filing of a Fair Employment Act complaint with the Personnel Commission is not a protected activity under the whistleblower law that entitles a complainant to protection under §230.80(8)(a), Stats., citing Butzlaff v. DHSS, 91-0044-PC-ER, 11/19/92. Where the only protected activity identified by complainant was having filed previous Fair Employment Act complaints against respondents, respondents' motion to dismiss for failure to state a claim was granted. Oriedo v. DPI et al., 98-0042-PC-ER, 8/12/98

There was no genuine issue of material fact regarding complainant's claims of race discrimination arising from respondent's failure to select complainant for any of five positions where the persons selected for the positions were all of complainant's race. Heinz-Breitenfeld v. DOC, 95-0153, 0155-PC-ER, 5/6/98

There was no genuine issue of material fact regarding complainant's claim of race discrimination arising from a selection decision where complainant was hired for the position in question. The question as to why complainant had to compete for the position was not connected with the race discrimination issue. Heinz-Breitenfeld v. DOC, 95-0153, 0155-PC-ER, 5/6/98

As to the question of whether complainant received less pay than a co-worker, there was no genuine dispute of material fact where complainant alleged discrimination based on race and it was undisputed that the pay of the co-worker was predicated on her voluntary demotion and the applicable administrative rules. The ethnicity of the co-worker would not affect the outcome of the case. Heinz-Breitenfeld v. DOC, 95-0153, 0155-PC-ER, 5/6/98

Summary judgment was granted with respect to a claim of sexual harassment based on two events occurring in the workplace, a correctional institution, on the same day. In one, a male supervising officer touched complainant's hair and asked, "Are you tight§" Complainant did not dispute that it was an ongoing joke at the institution that the tightness of her hair bun was an indicator of her mood for the day, that other co-workers had touched her hair and numerous co-workers asked about the "tightness" of her hair, and that complainant did not believe her co-workers' actions were sexually harassing. In the second incident, the same supervising officer asked, "Are you sure you want to go through with it§" in reference to complainant's upcoming marriage. Complainant did not show, or allege, that the two events interfered substantially with her work performance, nor were the events sufficiently pervasive, severe, threatening or humiliating that a reasonable person under the same circumstances would feel the working environment was intimidating, hostile or offensive. Winter v. DOC, 97-0149-PC-ER, 5/6/98

Respondent's motion to dismiss for failure to prosecute was granted in April of 1998 with respect to a complaint filed in December of 1994, where even though complainant had been incarcerated since June of 1997, he did nothing to process his complaint during the prior six months. While incarcerated, complainant did not advise the Commission of his circumstances or address or make any attempt to keep his complaint alive. Tetzner v. SPD, 94-0182-PC-ER, 4/29/98

Summary judgment was granted for a complaint alleging discrimination based on sex with respect to the decision to terminate complainant's probationary employment where complainant and her supervisor were both female and complainant admitted she had alleged sex discrimination because: "I felt that the supervisor had personal differences with me. . . . I chose sex, because I was pregnant at the time, and only women could have children, and my co-worker, who was treated favorably, was pregnant as well. Anything to get my case reviewed by someone other than the lower line management." Payne v. DOC, 95-0095-PC-ER, 1/9/98

Where complainant, who was asked to resign from her employment as an assistant district attorney (ADA) after her arrest for operating a vehicle while intoxicated and while on call and carrying an office beeper, contended she was held to a different standard while carrying the beeper than two male ADAs, complainant was entitled to offer evidence tending to show differential treatment of the two male ADAs with respect to other terms and conditions of complainant's employment, including caseload and performance expectations. However, evidence relating to caseloads and performance standards for other ADAs (i.e. other than the complainant and the two specified males) and by the district attorney was cumulative, repetitive and too tangential to the essence of complainant's contentions to have reasonable probative value. Evidence relating to the manner in which drunk driving arrests of employes were handled by other employers would not have reasonable probative value. Respondent's motion in limine was denied in part and granted in part. Christie v. Office of the District Attorney of Fond du Lac County, 96-0003-PC-ER, 2/25/98

Where the document in question had been provided to complainant without having been identified as confidential, but with the implication it was not considered confidential and was not given to complainant in connection with a protective order issued on another date, respondent's motion for the imposition of sanctions for violating the protective order was denied. Cygan v. DOC, 96-0167-PC-ER, 1/28/98

Where complainant remained an employe of respondent and it was possible that a controversy could arise in the future between the parties relating to the impact of an alleged whistleblower disclosure on complainant’s requests for overtime pay, the fact that respondent had made payments to complainant in 1997 for overtime hours he had accrued in 1995, did not cause complainant’s allegation of retaliation, arising from respondent’s denial of overtime pay in 1995, to be moot, citing Watkins v. DILHR, 69 Wis. 2d 782, 12 FEP Cases 816 (1975). Respondent failed to show that there was no reasonable expectation that the alleged violation would recur and that the 1997 overtime payment made to complainant had completely and irrevocably eradicated the effects of the alleged violation. Respondent’s motion to dismiss the claim was denied. Nolen v. DILHR [DOCom], 95-0163-PC-ER, 12/17/97

Respondent’s motion to dismiss a religious discrimination claim for failure to state a claim over which the Commission had jurisdiction was granted where complainant claimed that respondent’s action of not allowing him to wear a hat while it allowed Muslim employes to wear head coverings constituted discrimination. Complainant’s significant rights associated with his position (such as his wages and length of employment) had not been affected by the religious accommodation made to the Muslim employees and the impact on complainant was de minimus. Darrington v. DOC, 97-0108-PC-ER, 12/3/97

Summary judgment was granted with respect to complainant’s claims of discrimination based on age, race and sex with respect to the failure to hire complainant for a specific vacancy, where the successful candidate was also a white male and was two years older than complainant. Because the successful candidate was the same race, same sex and several years older than complainant and in the absence of other facts, disputed or otherwise, relative to complainant’s claims, complainant failed to present any evidence that his age, race or sex were motivating facts in the decision not to select him and he had not raised a genuine issue of material fact sufficient to withstand summary judgment. Starck v. UW (Oshkosh), 97-0057-PC-ER, 11/7/97

Respondent’s motion to dismiss for lack of prosecution was granted where the only notice that was provided with respect to complainant’s failure to appear at the scheduled hearing was 1) a message from complainant’s wife left early in the morning on the day of hearing on the answering machine of the personnel manager at respondent’s institution and 2) a message at the office of respondent’s attorney after he had left for the hearing. Although complainant contended his absence was due to an "ulcerative colitis flare-up," he failed to submit any documentation. The hearing had previously been postponed, one day before it had been scheduled to commence, due to the death of complainant’s mother. The fact that the prehearing conference had been postponed twice at respondent’s request was of little significance. Coffey v. DHSS, 95-0076-PC-ER, 7/16/97

Summary judgment was denied where there was a disputed question of fact as to whether the respondent received actual or effective notice that complainant’s absence was due to a serious health condition. Preller v. UWHCA, 96-0151-PC-ER, 4/11/97

Although the pleading requirements of a complaint of discrimination/retaliation are extremely minimal, where respondent had filed a motion to dismiss which specifically cited complainant’s failure to identify a protected fair employment activity and, even so, complainant did not identify in his written response to the motion any protected fair employment activity and none could be fairly implied, the FEA charge should be dismissed. Pfeffer v. UW (Parkside), 96-0109-PC-ER, 3/14/97

Respondent’s motion to dismiss was granted where only one of complainant’s allegations of discrimination was timely filed and that one allegation was precluded by an earlier ruling on sanctions which barred complainant from presenting evidence that was the subject of respondent’s discovery request, and where it had been nearly 3 years since complainant’s motion to stay proceedings had been granted pending a decision on complainant’s claim in state or federal court but complainant never filed in court. It was not inappropriate to revisit the motion to dismiss which respondent had filed as part of its request for discovery sanctions where, in its ruling on that motion, the Commission declined to dismiss the complaint "at this time" which implied possible reconsideration of the question at a later stage in the proceedings. Germain v. DHSS, 90-0005-PC-ER, 91-0083-PC-ER, 4/11/97

Where the material facts underpinning a claim were in dispute, a motion for summary dismissal was inappropriate. Jacobsen v. DHFS, 96-0089-PC-ER, 2/6/97

In ruling on a motion to dismiss for failure to state a claim, all facts alleged in the complaint and all facts alleged in opposition to the motion to dismiss were accepted as true. Elmer v. DATCP, 94-0062-PC-ER, 11/14/96

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

Respondent’s motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction was denied where complainant, employed by UW-Parkside’s Physical Plant, alleged race discrimination when UW-Parkside police questioned him about a missing rug and he was required to post $100 bail due to an unrelated warrant which was discovered by the police when they checked complainant’s record. Complainant’s supervisor made a report to the campus police which implicated complainant as a suspect in the disappearance of the rug. Respondent’s contention, that it was acting as a law enforcement agency rather than as an employer, was rejected. Graves v. UW (Parkside), 96-0055-PC-ER, 10/2/96

Respondent’s motion to dismiss, based upon the existence of a pending claim filed in circuit court under Title VII of the Civil Rights Act of 1964, was denied, distinguishing Harris v. DHSS, 84-0109-PC-ER, 85-0115-PC-ER, 8/18/87. The Commission granted a stay of the proceeding until after a determination by the other forum as to whether her Title VII claims will be heard in that forum. Respondent failed to explain how it would be irreparably harmed by such a stay. Doro v. UW, 92-0157-PC-ER, 8/15/96

While respondent did not formally discipline the complainant, its motion to dismiss for failure to state a claim was denied where complainant was directed to appear at a meeting to discuss a possible work rule violation and the letter directing him to appear could be construed as accusatory or even judgmental and complainant alleged that respondent failed to follow established policies for handling potential disciplinary matters. Klein v. DATCP, 95-0014-PC-ER, 12/20/95

In those FEA cases where it is clear that a complaint fails to state a claim, e.g., the complainant is not a member of a protected category, the complainant's retaliation complaint rests on an activity not covered by the FEA, it may be appropriate to dismiss the complaint on the basis of a motion supported by a factual showing establishing the defect in the claim. However, where the parties differ about such things as whether a supervisor's complaints about complainant's work were racially motivated and whether complainant's choice of options presented by management rendered the personnel transaction in question voluntary or involuntary, the claim cannot be resolved dispositively on such a motion and complainant is entitled to have his complaint investigated and then to proceed to a hearing. Masuca v. UW-Stevens Point, 95-0128-PC-ER, 11/14/95

Disqualification of agency counsel was not justified at the prehearing stage where counsel had denied having any involvement whatsoever in the hiring which was the subject matter of the proceeding and it was not clear whether counsel would be called as a witness at hearing. Complainant alleged that counsel had made statements, to others, of a discriminatory nature. Balele v. DNR et al., 95-0029-PC-ER, 6/22/95

Respondent's motion for a hearing to determine the appropriate remedy was granted where the hearing on the merits found employer liability but the issue of remedy was not fully litigated. The parties were permitted to supplement the record, where necessary, with respect to the remedy issue. Keul v. DHSS, 87-0052-PC-ER, 2/3/94

Complainant's request to amend the issue for hearing to add a claim under the whistleblower law was denied where the request was filed four months after the parties had stipulated to an issue limited to sex discrimination and was also filed three days after closure of discovery. Complainant failed to show any reason for the delay and failed to show that the stipulation as to the issue resulted from inadvertence or mistake, and there was no allegation of whistleblower retaliation in the original complaint. Florey v. DOT, 91-0086-PC-ER, 9/16/93

In ruling on respondent's motion to dismiss on the bases of untimely filing and for failure to state a claim, a claim should not be dismissed unless it appears to a certainty that no relief can be granted under any set of facts that complainant can prove in support of his allegations, citing Morgan v. Pa. Gen. Ins. Co., 87 Wis. 2d 723, 275 N.W. 2d 660 (1979). Getsinger v. UW-Stevens Point, 91-0140-PC-ER, 4/30/93

The fact that a test (Minnesota Multiphasic Personality Inventory), which served as a basis for a psychiatric evaluation, had been lost did not preclude testimony by the psychiatrist about the evaluation or the test, but could affect the weight accorded the testimony. Motion in limine denied. Boinski v. UW-Milwaukee, 92-0233-PC-ER, 92-0702-PC, 4/19/93 (Ruling by examiner)

In a handicap discrimination claim, evidence of complainant's employment after his termination could be relevant to the issue of complainant's ability to perform the duties of the position from which he was discharged and to the issue of accommodation, in terms of complainant's ability to perform other positions to which he could have transferred. Respondent's motion in limine was denied. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93

An objective standard is used to determine if the employer was correct in concluding that a handicapped employe is unable to effectively perform and that no accommodation is feasible. That the employer may have acted in good faith in assessing the handicapped employe's abilities is not a defense. Accordingly, evidence which postdates the personnel transaction which may have no relevance to the employer's intent when the employer made its assessment, may be admissible as relevant to the employe's capacity to perform any accommodation. Respondent's motion in limine was denied. Keller v. UW-Milwaukee, 90-0140-PC-ER, 3/19/93

Where complainant failed to establish a prima facie case of age discrimination regarding a selection decision, the employer's motion for dismissal, made after complainant had presented his case in chief, was granted Ludeman v. DER, 90-0108-PC-ER, 12/29/92

Although the Wisconsin Administrative Procedure Act does not provide explicitly for a summary judgment procedure, if it can be determined that there are no disputed issues of material fact, the Commission can issue a decision without an evidentiary hearing in what amounts functionally to a summary judgment proceeding. The Commission went on to apply the summary judgment methodology set forth in In re Cherokee Park Plat, 113 Wis. 2d 1212, 116, 334 N.W.2d 580 (Ct. App. 1983). Balele v. UW-Madison, 91-0002-PC-ER, 6/11/92

Where complainant stated a claim under the Fair Employment Act and made a number of contentions which were facially probative of pretext and contributed to a disputed factual issue concerning the subjective intent of those who participated in the selection process, summary judgment was denied. Balele v. UW-Madison, 91-0002-PC-ER, 6/11/92

Respondent's motion to dismiss was granted where it demonstrated that as a matter of law it had an effective affirmative defense that would enable it to prevail on the issue of liability. The complaint arose from respondent's action of removing the complainant from the enforcement cadet register for failing to meet the minimum hearing standard. However, the respondent established by affidavit that complainant's rank on the register ultimately would have been too low to have resulted in certification. The respondent's affirmative defense foreclosed a finding of liability against the employer. Kohl v. DOT & DMRS, 89-0064-PC-ER, 5/1/91

Complainant's motion, made after the commencement of the hearing, for disqualification of the hearing examiner was denied where the complainant failed to supply any grounds for disqualification on the basis of bias or prejudice: the examiner's action of hitting the table with her hand and slightly raising her voice was not an inappropriate response in the context of trying to maintain control of the hearing, the examiner's evidentiary rulings appeared to have been well founded legally and were not indicative of partiality and complainant was properly denied the opportunity to testify in rebuttal after each of respondent's witnesses. Acharya v. DOR, 89-0014, 0015-PC-ER, 9/11/89

Respondent's motion to dismiss for failure to state a claim upon which relief can be granted was ultimately granted as to a discrimination complaint under the Fair Employment Act involving a denial of family health insurance coverage. However, the Commission concluded that the complaint did involve an actual controversy and a claim which DETF had an interest in contesting and was not a "non-justiciable controversy." Phillips v. DETF & DHSS, 87-0128-PC-ER, 3/15/89, 4/28/89, 9/8/89; affirmed by Dane County Circuit Court, Phillips v. Wis. Pers. Comm., 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92

Complainant's motion for summary judgment was denied where there were many disputed issues of fact. Respondent's failure to renew its position on each of the issues of fact and of law in its briefs on the complainant's motion did not operate as a waiver of the defenses presented previously or operate as an implicit adoption of the complainant's version of the facts. Acharya v. DOA, 88-0197-PC-ER, 5/3/89

Appellant's motion for summary judgment was granted in an appeal of an examination where in a previous interim order, the Commission held that the invalidity of the subject examination was deemed admitted by operation of §804.11, Stats. However, the motion was not granted as to companion equal rights proceeding because the underlying interim order specifically limited its application to the appeal and the issue in the equal rights case extended beyond the examination. Doyle v. DNR & DMRS, 86-0192-PC, 87-0007-PC-ER, 11/3/88

Complainant's motion for default judgment was denied where the motion was based on the failure of the respondent to produce at hearing one of the three agency employes who allegedly discriminated against the complainant. Respondent agency appeared by legal counsel at the hearing so the provisions of §PC 5.03(8)(a), Wis. Adm. Code, were inapplicable. Pugh v. DNR, 86-0059-PC-ER, 9/26/88

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

Respondent was not permitted to withdraw its motion to dismiss for lack of subject matter jurisdiction after the motion had been heard and a proposed decision issued, absent a stipulation by the parties. Pfeifer v. DILHR, 86-0149-PC-ER, 86-0201-PC, 12/17/87

The Commission considered arguments raised by complainant in a letter received one day after the time restriction recited in the Commission's scheduling letter but postmarked two days prior to the due date where the period for filing arguments was very brief. Fliehr v. DOA, 85-0155-PC-ER, 12/17/85

The Commission denied respondent's motion to dismiss and directed that the investigation of the matter proceed where the complainant alleged that respondent had discriminated against him when it withdrew an offer of employment and the respondent contended in its motion that there were no approved employment vacancies for which complainant was eligible. The Commission's conclusion was based on the existence of a factual dispute between the parties. Cleary v. UW-Madison, 84-0048-PC-ER, 11/21/85

The Commission granted respondent's motion for an expedited hearing in order to limit damages where respondent did not contest liability except as to the issue of remedy. The Commission established specific truncated periods for holding a prehearing conference, completing discovery and responding to discovery requests. The hearing was to be held "as soon after the... discovery period as is feasible." Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 10/14/85


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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