Employee Tip: Probable Cause Determination from ERD- Now What?

Many employees file discrimination complaints with Wisconsin’s Equal Rights Division (ERD) without retaining an attorney. If you are an ERD complainant without an attorney, and you just received a “probable cause” determination, you may be wondering “now what?” Or at least you should be. In the time following a probable cause determination, things will get more formal and legalistic. You should get the most information you can about what’s to come.

Below, I’ll discuss what a “probable cause” (PC) determination means, what a “no probable cause” (NPC) determination means, and what each determination may mean for you. Bad news first.

“No Probable Cause:” What This Means, and What You Can Do

If the ERD determination states there was “no probable cause” of discrimination, this means the ERD investigator believed it was unlikely that discrimination occurred, and he or she decided your case should be dismissed. And your case will be dismissed, unless you appeal the NPC decision. If you appeal your decision, you will be entitled to attend a hearing, at which an administrative law judge (ALJ) will decide whether the ERD investigator erred and there is in fact probable cause of discrimination. At these “probable cause hearings,” the ALJs agree with the investigators the vast majority of the time, and uphold the NPC determination. So the odds of winning a probable cause hearing are low (not to mention the odds of going on to win a second hearing on the merits), although not impossible. In my view, there are occasionally cases with very good evidence of discrimination (e.g. documentation or witness statements supporting that discrimination occurred) that nonetheless receive an NPC finding. On some occasions, an appeal is a good idea.

• How to appeal.

If you get a NPC finding and are considering an appeal, you should immediately read the appeal instructions and the deadline stated in the NPC determination.

To appeal, you need to write a letter, and the NPC determination describes the (brief) information you need to include in the appeal letter.

The deadline for appeal is 30 days. This deadline requires that the ERD receive your appeal letter within 30 days of when the NPC determination is dated. In other words, because of mailing times, the deadline is shorter than 30 days. If you are considering an appeal, pay close attention to the dates, be mindful of mail delays, and act promptly.

• Should you appeal?

Whether or not to continue a legal action is an important decision, involving several factors.

Your decision should not be a knee-jerk reaction, based on a gut belief that you are “right,” or that there is a “principle” that you must keep pursuing. Perhaps these things are true. But you should also consider: (1) how much time could this appeal take?; (2) how much will this appeal cost (in deposition fees, expert fees, fees for an attorney you hire, etc.)?; and (3) what is the risk you will lose?

When you get an NPC decision, that is a bad decision, and should serve as a reality check. Not necessarily a reality check that you’re wrong, but a reality check that, as far as ERD is concerned, you are more likely to lose your case than win it.

Often, this notion- that you can be right, but lose- is a big barrier for many ERD complainants to get over. If this is your first trip through the legal system, you may have assumed that the ERD would feel your pain, and would agree with the facts as you discussed them. Now you see that is not so, and that there is a serious risk you will lose your case, despite your best efforts.

With that said, there are certainly cases where I feel the ERD’s NPC determination was wrong, and where I feel an appeal is warranted. Also, for certain cases and circumstances, there may be an option to remove the case from ERD altogether and file a discrimination complaint in federal court.

Before proceeding with an appeal (again, be mindful of the deadline), you may want to contact one or more attorneys for their opinions, especially if you can do so for free. You can get their opinions whether appealing your NPC determination is the best decision, or whether there are other decent options available.

If you do decide to call an attorney, do it quickly. An attorney can be of much more help if you call on day one after the NPC determination, as opposed to the day before your appeal deadline.

The same is true for those of you who received a PC finding. While a PC decision is good news, that decision will trigger a series of legal obligations that you have to follow. There are several important things to consider after you receive a PC decision.

“Probable Cause:” What This Means, and What You Can Do

If you receive a determination of “probable cause,” this means (1) the ERD investigator decided there was evidence of discrimination in your matter; and (2) you will have a hearing before an administrative law judge (ALJ). At the hearing, the ALJ will decide whether the employer is liable for discrimination, and if so, what monies and relief the employer must provide you.

If you receive a finding of PC, you can take a moment to celebrate. You passed one big step. But before you win your hearing (the second big step), there are several things you should consider or do in the time following the PC determination.

• You should consider what damages (back pay monies) and relief you would receive if you won your hearing.

What is your case worth? If you haven’t asked yourself this by the point you’ve reached a probable cause decision, you should definitely do so. You are at a serious juncture. Going forward, you must make serious decisions, and possibly serious investments of time and expense, into your matter. Before you make these decisions and investments, it makes a lot of sense to figure out what you stand to gain in you win.

You could stand to gain considerable monies and relief if you win. With that said, some parties (despite a PC finding) stand to gain very little at the hearing. In any event, if you are assuming your case is worth hundreds of thousands, or millions, of dollars, chances are you are hugely overestimating what you stand to win.

The main things the ERD can award you if you win your hearing are the following: (1) reinstatement or placement in the job at issue (assuming you want that); (2) repayment of your attorneys fees (assuming there are any); and (3) payment of net wages (“back pay”) lost as a result of the employer’s discrimination.

I have a post here that describes, in the Section Titled “Damages (Monies that May Be Won),” how you can calculate back pay estimates.

• You should consider what your costs are going forward.

Costs? you may ask. Yes, costs. If you want to win your ERD hearing, you will have to invest some of your own money to do so. Even setting aside legal fees (which you wouldn’t have to pay if you didn’t retain an attorney, or if you retained one on a contingency-fee basis), there are other costs you’d have to pay if you want a realistic chance to win your hearing. These costs include: (1) deposition costs (ranging from about $200 to $750 per deposition); (2) expert witness costs (e.g. if you want to win a disability discrimination claim, you must have a medical provider testify- some doctors charge over $1,000 per hour for their time); and (3) witness fees, travel costs, copy costs, and other miscellaneous costs.

Up until the PC determination, your ERD complaint may have been a low-cost affair. But if you want to win your hearing, you’ll probably have to pay some significant costs between the time of the PC determination and the conclusion of the hearing.

The employer will have to pay significant costs as well. Because of this impending financial pressure on both parties, following a PC determination it is common for the parties to discuss settlement or attend mediation.

• You should consider whether to attend mediation (if the employer is also willing to do so).

After a PC termination, the ERD will offer you and the employer an opportunity to mediate- that is, to have a settlement-negotiation session conducted by a mediator. (The mediator is an ALJ, although not the one assigned to your hearing).

Mediation is usually a good idea for both parties. Employee-clients I’ve represented usually agree to go to mediation. Some employers will agree, some will not. If your opposing employer agrees, you should consider mediation.

However, before going to mediation, you should figure out how much your case would be worth if you won your hearing; there are several other important things you should also do before going to mediation.

I have a post about preparing for ERD mediation here.

• You will probably have to respond to written “discovery” requests in the time leading up to the hearing.

After the PC determination- and in the time leading up to the hearing- you will have several important requirements to follow. One big requirement is your obligation to respond to “discovery” requests- that is, written requests from the employer that you are required by law to respond to within 30 days.

There are three common forms of written discovery: (1) interrogatories (written questions) that one party asks and the other party has to answer; (2) “requests to admit” (numbered statements of proposed facts) that the answering party must admit as true or deny; and (3) document requests, where the responding party must turn over copies of important documents (e.g. performance reviews, disciplinary documents, medical records, etc. etc.) to the requesting party.

Discovery is serious business. If you have been served with written discovery requests, you will probably recognize that you’ve entered a new realm of legal formalities. There are more procedural requirements and legalese involved than what you encountered earlier during the ERD investigation phase. There are also legal deadlines and obligations, and if you violate them, there are potential sanctions and penalties.

If you are served with written discovery requests and want to discuss them with an attorney, please don’t wait until day 29 of your 30-day deadline period to do so!

You should also consider filing your own discovery requests (or having an attorney do this), so you can require the employer to provide documents and answers to questions that you want to request. There is a limited period in which you can issue discovery requests- if you wait too long, you may miss out on this opportunity.

• You will probably have to have your deposition taken in the time leading up to the hearing.

If you and the employer don’t settle your case after the PC determination and your case proceeds to a hearing, sometime prior to the hearing the employer will probably require you to attend a deposition.

A deposition is a question-and-answer session conducted by an attorney (e.g. the employer’s attorney), who questions a witness (e.g. you). If you are provided with a notice of deposition, you are required to attend. At the deposition, you are required to provide truthful answers under oath. A court reporter is present at a deposition, and transcribes a record (transcript) of everything that is stated . (The transcript- which you will need to prepare for your hearing- is the biggest deposition expense, and what pushes the total costs of a deposition into the hundreds of dollars).

It is unusual for an ERD case to proceed to a hearing without the employer conducting a deposition of the complainant-employee. Often, there are several persons who are deposed in a case. For example, an employee-complainant may decide to depose the supervisor and HR rep who terminated his employment, to see (in advance of the hearing) what answers those important persons will give to important questions. Your matter may need several depositions in order to thoroughly prepare for your hearing and give yourself the best chance to win.

• You will have to submit a witness list and exhibits within 10 days of the hearing, and follow any other deadlines established by the ERD and ALJ.

If your case proceeds to a merits hearing, no later than the 10th day before the hearing you must provide the ALJ with (1) a list of all the witnesses you may bring to the hearing; and (2) copies of all the exhibits (i.e. important documents) you intend to use at the hearing. To prepare for this, you may have to sort through mounds of documents and phone many prospective witnesses. Make sure you allow yourself enough lead time before the witness and exhibits deadline to make these sorts of preparations.

After your PC determination, you will receive a packet of information from ERD which describes the requirements and deadlines above, as well as other legal requirements. Please read those documents carefully, and schedule all referenced deadlines.

• You will have to prepare for the ERD hearing, including witness arrangements and organization of documents and exhibits.

If you wish to attend and win your ERD hearing, you will need to make several important preparations in the time leading up to the hearing. Namely, you will need to review and organize all your important documents and deposition transcripts, and you will need to plan arrangements and questions for witnesses. These detailed preparations are beyond the scope of this post, and will not be described here.

You can refer to Section I. of my post about preparing for an unemployment hearing, to get a general idea of the kinds of preparations you could make for an ERD discrimination hearing (e.g. preparing documents, preparing for witnesses, etc.). Please note that, while an unemployment hearing is similar to an ERD discrimination hearing, there are several large and important differences between these two types of hearings. Thus, the information in Section I referenced above- like all the information in this blog- is intended to give you ideas and information to consider, but is not legal advice that applies to your specific situation. Only an attorney can provide legal advice for your particular circumstances and your particular hearing.

• You should consider whether to get an attorney.

It is very difficult for a complainant-employee to win an ERD hearing without an attorney. (Even with an attorney, an ERD hearing is by no means a walk in the park to guaranteed victory). An attorney can improve your odds of success, and help you present your case in the an effective and legally- appropriate manner.

If you have a chance to consult with an attorney for free- many Wisconsin employee rights attorneys, including me, offer free phone consultations- it is definitely worth your time to do so. An attorney can help assess the potential advantages and disadvantages of your case, and potential monies that could be gained or lost.

Whether or not you retain an attorney and pay out-of-pocket fees (if any are charged) is an important decision. I have a post here about important questions to ask when you are considering retaining an attorney.

Ultimately, you must consider the costs of retaining an attorney versus the potential benefits that attorney can offer. There are several activities described above- particularly, written discovery, depositions, and preparing for and attending a hearing- where an attorney could offer considerable value.

Conclusion

Hopefully, the information above is of help to those of you who have received a probable cause or no probable cause decision from ERD. Again, this information is not legal advice, and cannot replace the informed advice of an attorney who has reviewed your specific circumstances. But I do hope this information demystifies some uncertainties you may have, and gives you a clearer idea of what’s to come, and what are some important things for you to think about following your PC or NPC determination.