Chapter DWD 220

DWD 220.05(2) (2) Preliminary determination dismissing complaint. The department shall issue a preliminary determination dismissing any complaint, or any portion of a complaint, that fails to meet the requirements of sub. (1). The department shall send the order of dismissal by first class mail to the last-known address of each party and to their attorneys of record.

DWD 220.05(3) (3) Appeal of preliminary determination. A complainant may appeal from an order dismissing a complaint under sub. (2) by filing a written request with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the preliminary determination. The department shall serve the decision of the administrative law judge upon the parties. If the decision reverses or sets aside the preliminary determination, the complaint shall be remanded for investigation. If the decision affirms the preliminary determination, it is the final decision of the department. The department shall send a copy of the decision and order and notice of appeal rights by first class mail to the last known address of each party and to their attorneys of record.

DWD 220.05 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (3) Register March 2004 No. 579, eff. 4-1-04.

DWD 220.06 DWD 220.06 Testing.

DWD 220.06(1) (1) Conditions under which testing may be done by the department. The department may engage in testing for the purpose of establishing violations of s. 106.50 (2), (2m) or (2r), Stats. by verifying allegations of unlawful housing discrimination or to determine whether sufficient evidence exists to initiate its own complaint. Testing may occur under circumstances including but not limited to the following:

DWD 220.06(1)(a) (a) Where no other means exits for verifying or refuting the allegations contained in a complaint, or where the findings of the investigator would be significantly strengthened by the inclusion of test results.

DWD 220.06(1)(b) (b) Where the number or content of complaints against a specific respondent is sufficient to indicate that a pattern of unlawful discrimination may exist.

DWD 220.06(1)(c) (c) Where demographic statistics would lead a reasonable person to believe that a pattern of unlawful discrimination exists in a particular geographical area.

DWD 220.06(2) (2) Testing procedures. Any person engaged in testing for the department shall do so only after having specific authorization by the department. The results of each test for potential discrimination shall be submitted to the department in written form by those persons who conducted the test.

DWD 220.06(3) (3) Notice of testing. The department may not give notice of testing to the person who shall be tested. If the testing is undertaken as the result of a complaint naming a specific respondent, the department shall delay sending the notice of the complaint to the respondent until after the completion of the testing.

DWD 220.06 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

DWD 220.07 DWD 220.07 Investigations.

DWD 220.07(1) (1) Conduct of investigation. Except as provided under sub. (2), the department shall investigate all complaints that satisfy the review under s. DWD 220.05 (1). In conducting investigations under this chapter, the department may seek the cooperation of all persons to provide requested materials to the department; to obtain access to premises, records, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials; and to take statements of persons reasonably necessary for the furtherance of the investigation. The department may subpoena persons or documents for the purpose of the investigation. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 220.07(2) (2) Dismissal of complaint prior to completion of investigation.

DWD 220.07(2)(a) (a) The department may dismiss a complaint prior to completion of an investigation under the following circumstances:

DWD 220.07(2)(a)1. 1. The complainant has failed to respond to correspondence from the department concerning the complaint within 20 days after the correspondence was sent by certified mail to the last known address of the person filing the complaint, in accordance with the provisions of s. 106.50 (6) (a) 6., Stats.

DWD 220.07(2)(a)2. 2. The allegations in the complaint have been previously dismissed by the department or by a state or federal court.

DWD 220.07(2)(b) (b) A complainant may appeal from an order dismissing a complaint under this subsection by filing a written appeal with the department. The appeal shall be filed within 20 days of the date of the order and shall state specifically the grounds upon which it is based. If a timely appeal is filed, the department shall serve a copy of the appeal upon all other parties. The matter shall be referred to the hearing section of the division for review by an administrative law judge. The administrative law judge shall issue a decision which shall either affirm, reverse, modify, or set aside the dismissal of the complaint. The decision of the administrative law judge shall be served upon the parties. If the decision reverses or sets aside the dismissal, the complaint shall be remanded for further investigation. If the decision affirms the preliminary determination, the complainant may seek judicial review if it is a final decision and order as defined in s. DWD 220.24.

DWD 220.07 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: rn. to be (1) and am., cr. (2) Register March 2004 No. 579, eff. 4-1-04.

DWD 220.08 DWD 220.08 Initial determinations.

DWD 220.08(1) (1) General. At the conclusion of the investigation, the department shall issue an initial determination which shall state whether or not there is probable cause to believe that housing discrimination occurred as alleged in the complaint. This initial determination shall set forth the facts upon which its conclusion is based.

DWD 220.08(2) (2) Initial determination of probable cause. If the initial determination of the department is that probable cause exists, the department shall issue a charge under s. DWD 220.11.

DWD 220.08(3) (3) Initial determination of no probable cause. If the initial determination of the department is that there is no probable cause to believe that housing discrimination occurred as alleged in the complaint, it shall dismiss the complaint. The department shall notify the parties and their attorneys of record of the complainant’s right to appeal as provided in s. DWD 220.09.

DWD 220.08 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.09 DWD 220.09 Appeal of initial determination of no probable cause.

DWD 220.09(1) (1) When filed. Within 20 days after the date of an initial determination finding that there is no probable cause, a complainant may file a written request for a hearing on the issue of probable cause. The department shall notify the respondent that an appeal has been filed within 10 days of receiving the appeal.

DWD 220.09(2) (2) Dismissal final if no appeal filed. If no timely written request for a hearing is filed, the initial determination’s order of dismissal shall be the final determination of the department.

DWD 220.09(3) (3) Certification to hearing on issue of probable cause; right to stipulate that case may be heard on merits. If a timely appeal is filed, the division shall certify the matter to hearing. A hearing on the issue of probable cause shall be noticed and conducted in accordance with the provisions of ss. DWD 220.14 and 220.16 to 220.23, except that the parties may stipulate prior to the hearing that the administrative law judge may decide the case on the merits.

DWD 220.09 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.10 DWD 220.10 Conciliation.

DWD 220.10(1) (1) Conciliation. Upon the consent of all parties, the department may assist the parties to reach a mutually agreeable and just resolution of the complaint at any time during the proceedings. If conciliation resolves a dispute, the terms of the agreement shall be set forth in a conciliation agreement.

DWD 220.10(2) (2) Remedy for breach of conciliation agreement. If, within one year after the effective date of a conciliation agreement, a complainant believes that the terms of the agreement have been breached by a respondent, the complainant may petition the department to re-open the complaint against that respondent. The department may conduct a hearing to determine whether the terms of the conciliation agreement have been breached. If the department determines that the respondent has breached the conciliation agreement, it may do either of the following:

DWD 220.10(2)(a) (a) Refer the matter to the department of justice with a recommendation that a civil action be filed under s. 106.50 (6) (e) 4., Stats., for the enforcement of the terms of the conciliation agreement.

DWD 220.10(2)(b) (b) Issue an order allowing the complainant to proceed with the complaint starting at the point in the administrative proceedings when the conciliation agreement became effective, provided that the complainant places any monetary proceeds which were received as a result of the conciliation agreement in an escrow account pending the final resolution of the complaint process.

DWD 220.10(3) (3) Stay of proceedings. Any proceedings before the division under this section shall be stayed pending any enforcement action by the department of justice or any contract action to enforce the conciliation agreement brought by the complainant in circuit court.

DWD 220.10 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (2) (a) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

DWD 220.11 DWD 220.11 Charge of discrimination.

DWD 220.11(1) (1) When charge shall be issued. If the department makes an initial determination that there is probable cause to believe that housing discrimination occurred as alleged in the complaint, or if it issues a decision finding probable cause after a hearing, it shall issue a charge on behalf of the complainant and shall refer the charge to the attorney general as required by s. 106.50 (6) (c) 2., Stats. The charge may be incorporated into an initial determination finding probable cause under s. DWD 220.08 (2) or into a decision of an administrative law judge finding probable cause under s. DWD 220.23 (1).

DWD 220.11(2) (2) Exception if civil trial has commenced. The department shall not issue a charge under this section if it has been informed, in writing, that an aggrieved person has commenced a civil action in court under the federal fair housing act, 42 USC 3613, or the Wisconsin open housing law, s. 106.50 (6m), Stats., seeking relief with respect to the alleged discriminatory housing practice, and that the trial in the action has begun. If a charge may not be issued because of the commencement of such a trial, the department shall dismiss the complaint. The department shall notify the parties of the dismissal of the complaint by first class mail.

DWD 220.11 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

DWD 220.12 DWD 220.12 Election of civil action; certification to hearing.

DWD 220.12(1) (1) Election of civil action. If a charge is issued under s. DWD 220.11, a complainant, a respondent or an aggrieved person on whose behalf the complaint was filed may elect, in lieu of an administrative proceeding under ss. DWD 220.14 to 220.23, to have the claims asserted in the charge decided in a civil action under s. 106.50 (6m), Stats. The election shall be in writing and shall be filed with the department no later than 20 days after the receipt of service of the charge by the electing person. The department shall notify the parties and their attorneys of record that an election has been made. Upon the filing of an election, the department shall dismiss the complaint. The order of dismissal shall become effective 90 days after the date the order is issued. The order of dismissal shall state that it is without prejudice to the parties’ rights to proceed on the complaint in another forum. The administrative proceedings shall be concluded upon the effective date of the department’s order of dismissal. The complainant or the aggrieved person shall have 90 days from the date of receipt of service of the notice of election to file a summons and complaint in circuit court. Thereafter, the complaint shall proceed as provided under s. 106.50 (6m), Stats.

DWD 220.12(2) (2) Certification to hearing on the merits of the complaint. If an election is not made under this section, the department shall issue a notice certifying the matter to hearing. A hearing on the merits shall thereafter be noticed and conducted in accordance with the provisions of ss. DWD 220.14 to 220.23.

DWD 220.12 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; corrections in (1) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

DWD 220.13 DWD 220.13 Dismissal of complaint for lack of jurisdiction or other procedural basis following certification to hearing. A complaint may be dismissed for the reasons set forth in s. DWD 220.05 (1) after the case is certified to hearing under either s. DWD 220.09 (3) or 220.12 (2). In determining whether to dismiss the complaint, the administrative law judge may consider documents and affidavits presented by any party and may hold a hearing to allow the parties to establish facts which may have a bearing on whether the complaint should be dismissed. If the administrative law judge issues an order dismissing the complaint under this section, a certified copy of the order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

DWD 220.13 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.14 DWD 220.14 Notice of hearing.

DWD 220.14(1) (1) Content. In any matter which has been certified to hearing following the issuance of a charge under s. DWD 220.11 or an appeal of an initial determination of no probable cause under s. DWD 220.09 (3), the department shall send a notice of hearing to the parties and their attorneys of record, by first-class mail, advising them of the specific time, date and place established for the hearing. The notice of hearing shall fully identify the parties and the case number. It shall specify a time and date of hearing not less than 30 days after the date of mailing of the notice of hearing. The notice of hearing shall specify the nature of the housing discrimination which is alleged to have occurred and shall state the legal authority on which the hearing is based. A copy of the complaint shall be attached to the notice of hearing.

DWD 220.14(2) (2) Place of hearing. The hearing shall be held in the county where the alleged act of discrimination occurred, or at another location with the consent of the parties. For purposes of this subsection, the county where the alleged act of housing discrimination occurred is the county where the housing which is the subject of the complaint is located, unless no specific housing is involved, in which case the county where the alleged act of housing discrimination occurred is the county where the respondent resides.

DWD 220.14 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.15 DWD 220.15 Answer.

DWD 220.15(1) (1) When required. Within 10 days after the date of a notice of hearing on the merits, each respondent shall file with the hearing section of the division an answer to the allegations of the complaint upon which there is a finding of probable cause, along with a certification that a copy of the answer has been mailed to all other parties.

DWD 220.15(2) (2) Content of answer. The answer shall contain the respondent’s current address. It shall also contain a specific admission, denial or explanation of each allegation of the complaint. If the respondent is without knowledge or information sufficient to form a belief as to the truth of an allegation, the respondent shall so state and this shall have the effect of a denial. Admissions or denials may be to all or part of an allegation, but shall fairly meet the substance of the allegation. Any affirmative defense relied upon, including the statute of limitations, shall be raised in the answer unless it has previously been raised by a motion in writing. Failure to raise an affirmative defense in the answer may, in the absence of good cause, be held to constitute a waiver of such a defense.

DWD 220.15 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

DWD 220.16 DWD 220.16 Pre-hearing conference. In any case which has been certified to hearing, a pre-hearing conference may be held in accordance with the provisions of s. 227.44 (4), Stats.

DWD 220.16 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.17 DWD 220.17 Subpoenas and motions.

DWD 220.17(1) (1) Subpoenas. The cost of service and witness and mileage fees shall be paid by the person requesting the subpoena. Witness and mileage fees shall be the same as set forth in s. 814.67 (1) (a) and (c), Stats. Subpoenas may be enforced pursuant to s. 885.11, Stats.

DWD 220.17(2) (2) Motions. Motions made during a hearing may be stated orally and shall, with the ruling of the administrative law judge, be included in the record of the hearing. All other motions shall be in writing and shall state briefly the relief requested and the grounds upon which the moving party is entitled to relief. All written motions shall be filed with the administrative law judge assigned to the case. Any briefs or other papers in support of a motion, including affidavits and documentary evidence, shall be filed with the motion. Any party opposing the motion may file a written response. All written motions shall be decided without further argument unless requested by the administrative law judge.

DWD 220.17 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.18 DWD 220.18 Pre-hearing discovery.

DWD 220.18(1) (1) When discovery may begin. Discovery may not be used prior to the time that a matter is certified to hearing, except that the taking and preservation of evidence shall be permitted prior to certification to hearing under the circumstances set forth in s. 227.45 (7), Stats.

DWD 220.18(2) (2) Discovery directed to a party not represented by legal Counsel. In the case of discovery directed to a party who is not represented by legal counsel, the party seeking that discovery shall, not less than 10 days prior to conducting such discovery, state in writing that it intends to seek discovery. The party seeking discovery shall send this notice to the party who is not represented by legal counsel and to either the chief of the hearing section or the administrative law judge, if one has been assigned to the case. All copies of demands for discovery and notices of depositions shall be filed with the department at the time they are served upon the party from whom the discovery is sought. Copies of responses to discovery by an unrepresented party and the original transcript of any deposition of an unrepresented party shall be filed with the department by the party which instituted those discovery requests as soon as practicable after the discovery has been taken.

DWD 220.18(3) (3) Scope, method and use of discovery. The scope of discovery, the methods of discovery and the use of discovery at hearing shall be the same as set forth in ch. 804, Stats.

DWD 220.18(4) (4) Failure to comply with discovery requests; duty to consult with opposing party. The administrative law judge may compel discovery, issue protective orders, and impose sanctions in the manner provided under ch. 804, Stats. All motions to compel discovery or motions for protective orders shall be accompanied by a statement in writing by the party making the motion that, after consultation in person or by telephone with the opposing party and sincere attempts to resolve their differences, the parties are unable to reach agreement. The statement shall state the date and place of such consultation and the names of all parties participating in the consultation.

DWD 220.18(5) (5) Filing with department. Copies of discovery requests and responses to discovery requests need not be filed with the division, except as required under sub. (2).

DWD 220.18 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. (2) and (4) Register March 2004 No. 579, eff. 4-1-04.

DWD 220.19 DWD 220.19 Disqualification of the administrative law judge. Upon the administrative law judge’s own motion, or upon a timely and sufficient affidavit filed by any party, the administrative law judge shall determine whether to disqualify himself or herself because of personal bias or other reason. The administrative law judge’s determination shall be made a part of the record and decision in the case.

DWD 220.19 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.20 DWD 220.20 Exchange of names of witnesses and copies of exhibits. By no later than the tenth day prior to the day of the hearing, the parties shall file with the division and serve upon the other party a written list of the names of witnesses and copies of the exhibits which the parties intend to use at the hearing. For the purpose of this section, service is complete on mailing rather than on receipt. The administrative law judge may exclude witnesses and exhibits not identified in a timely fashion pursuant to this section. This section does not apply to witnesses and exhibits offered in rebuttal which the party could not have reasonably anticipated using prior to the hearing.

DWD 220.20 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 03-092: am. Register March 2004 No. 579, eff. 4-1-04.

DWD 220.21 DWD 220.21 Hearing.

DWD 220.21(1) (1) Procedure. Hearings shall be conducted in conformity with the act and the provisions of ch. 227, Stats.

DWD 220.21(2) (2) Postponements and continuances. All requests for postponements shall be filed with the administrative law judge or with the chief of the hearing section within 10 days after the date of the notice of hearing, except where emergency circumstances arise after the notice is issued but prior to the hearing. The party requesting a postponement shall mail a copy of the request to all other parties at the time the request is filed with the division. Postponements and continuances may be granted only for good cause shown and shall not be granted solely for the convenience of the parties or their attorneys.

DWD 220.21(3) (3) Appearance of parties. Parties may appear at the hearing in person and by counsel or other representative.

DWD 220.21(4) (4) Failure to appear at hearing. If the complainant fails to appear at the hearing, either in person or by a representative authorized to proceed on behalf of the complainant, the administrative law judge shall dismiss the complaint. If the respondent fails to appear at the hearing, the hearing shall proceed as scheduled. If, within 10 days after the date of the hearing, any party who failed to appear shows good cause in writing for the failure to appear, the administrative law judge may reopen the hearing.

DWD 220.21 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94.

DWD 220.22 DWD 220.22 Record of hearing.

DWD 220.22(1) (1) Method of recording hearing. A stenographic, electronic, or other record of oral proceedings shall be made at all hearings conducted under the act. Any party wishing to have a court reporter present to transcribe the proceedings shall be permitted to do so at their own expense. If the hearing is recorded on tape or digitally, the original recording shall remain in the division for 5 years following the hearing, after which it will be discarded.

DWD 220.22(2) (2) Filing transcripts with the division. Transcription of the record shall be at the expense of any party who requests the transcription. The transcript shall be prepared by an independent, reputable, court reporter or transcriptionist. If a transcript is filed with the division, it shall include a certification by the transcriptionist that the transcript is an original, verbatim, transcript of the proceedings.

DWD 220.22(3) (3) Transcription of record at department expense. The department shall provide, without cost, a copy of the transcript for the purpose of judicial review if a party submits a sworn affidavit of indigency and the inability to obtain funds to pay the cost of a transcript.

DWD 220.22 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; CR 06-062: am. (1) Register November 2006 No. 611, eff. 12-1-06.

DWD 220.23 DWD 220.23 Decision and order.

DWD 220.23(1) (1) Decision and order after hearing on the issue of probable cause. After a hearing on the issue of probable cause, the administrative law judge shall issue a written decision and order which dismisses the allegations of the complaint or which orders that a charge be issued under s. DWD 220.11, depending upon the administrative law judge’s findings and conclusions on the issue of probable cause. If the decision of the administrative law judge concludes that no probable cause exists, a certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

DWD 220.23(2) (2) Decision and order after hearing on the merits. After a hearing on the merits, the administrative law judge shall issue a written decision and an order which shall either dismiss the allegations of the complaint or shall order such action by the respondent as shall effectuate the purposes of the act, depending upon the administrative law judge’s findings and conclusions on the merits of the complaint. Economic and noneconomic damages including, but not limited to, lost wages, medical expenses, the increased costs of alternative housing, and compensation for damages caused by emotional distress, damage to reputation, or embarrassment may be ordered. A forfeiture may be ordered under s. 106.50 (6) (h) 2. or 3., Stats., if the respondent’s violation of the act was found to have been willful. A certified copy of the decision and order and a notice of appeal rights shall be sent by first class mail to the last known address of each party and to their attorneys of record.

DWD 220.23 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction in (2) made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

DWD 220.24 DWD 220.24 Judicial review. Any party may file a petition for review of a final decision and order of the administrative law judge in the appropriate circuit court, pursuant to s. 106.50 (6) (j), Stats. A final decision and order is one which finally disposes of the entire complaint and leaves no further proceedings on that complaint pending before the division.

DWD 220.24 History History: Cr. Register, September, 1994, No. 465, eff. 10-1-94; correction made under s. 13.93 (2m) (b) 7., Stats., Register, December, 2000, No. 540.

DWD 220.25 DWD 220.25 Filing of documents by facsimile transmission or electronic mail.