As you wonder whether to pursue an employment discrimination claim against your Wisconsin employer, an insurer, or a government entity, you may have questions about how your case will be resolved. How difficult will it be? How long will it take? What will the costs be?
To schedule a free phone consultation with an experienced employment law attorney, contact Alan C. Olson & Associates, s.c., in the Milwaukee area.
Every case has its own timeline and set of steps toward resolution. In many cases, our employment law attorneys achieve a positive outcome purely through negotiations with your opponent. Mediation may be the means of negotiation. Regardless of the method, cases must be prepared as if for trial in order to get maximum recovery.
Depending on the type of case you have, your lawsuit may involve one or more of the following stages:
- Settlement negotiations: if they are successful, you will save time, money, and emotional energy without filing a lawsuit.
- Investigation: including the use of private and governmental investigators to ferret out the facts that support your case.
- Filing a lawsuit: putting your case in writing for consideration by the courts.
EQUAL RIGHTS DIVISION LITIGATION PROCESS
- File Complaint
- 300 day Statute of Limitations for Wisconsin Fair Employment Act (WFEA) cases (111.31 Wis. Stats.)
- 30 day Statute of Limitations for Wisconsin Family and Medical Leave Act (WFMLA) cases (103.10 Wis. Stats.)
- Complaint may be amended up to 20 days before hearing.
- Preliminary Determination
May dismiss if complaint does not meet requirements of DWD 218.05(1)
- Whether the Complainant is protected by the Act
- Whether the Respondent is subject to the Act
- Whether the Complainant states a claim for relief under the Act.
- Appeal of Preliminary Determination
Must be appealed within 21 days of dismissal.
- ERD serves Complaint on Respondent.
- Respondent responds to complaint within time specified by ERD. (approx. 2weeks)
- ERD requests Complainant’s rebuttal to Respondent’s response. (approx 2 weeks)
- ERD issues Initial Determination (ID) of Probable Cause (PC) or No Probable Cause (NPC) to believe Respondent violated WFEA or FMLA.
- Appeal NPC within 30 days of Initial Determination.
- If NPC is appealed, a hearing will be scheduled on issue of probable cause.
- If PC is found either by ID or appeal hearing, a hearing on the merits will be scheduled.
- Discovery may commence after case is certified to hearing except under 227.45 (7) (if person from whom discovery is sought gets an order protecting from annoyance, embarrassment, oppression, or undue burden or expense).
- Discovery to un-represented party: notify ERD 10 days before discovery started and file demands for discovery and answers with ERD.
- Answer: Respondent shall file Answer to Complaint within 21 days of Notice of Hearing on the Merits.
- Witness and Exhibit List must be sent to opposing counsel and ERD 10 days prior to hearing.
- Hearing – Administrative Law Judge may allow or require post-hearing briefs.
- Decision and Order issued by ERD usually 90-180 days post-hearing.
- Remedies under WFEA and WFMLA include:
- Wage loss (minus any Unemployment Insurance Benefits received)
- Benefit loss
- Reinstatement or compensation in lieu of reinstatement
- Attorney fees
- 12% annual interest
- For employment termination after June 30, 2009, the Complainant may file a post-hearing circuit court action to recover emotional distress and punitive damages.
- Appeal: Dismissal Order on WFEA cases may be appealed to LIRC within 21 days of Decision and Order, request briefing schedule.
Dismissal Order on FMLA cases may be appealed only to Circuit Court, not to LIRC.
- Decisions of LIRC are subject to judicial review under Ch. 227, Wis. Stats.
- After 180-day investigation period, Complainant may request Right to Sue letter from EEOC before filing suit.
- If case is dismissed, EEOC will issue Notice of Right to Sue allowing private suit to be filed within 90 days.
STATE CIRCUIT COURT LITIGATION PROCESS
- File Summons and Complaint
- If claim is against governmental entity, must file a notice of injury and notice of claim within 120 days of injury. (893.80 Wis. Stats.)
- Make jury demand at or before scheduling or pretrial conference (best practice to include in complaint)
- Service of Summons and Complaint on Defendant within 90 days of filing.
- Defendant must file written Answer within 20 days on contract claims, 45 days on tort claims.
- Summary Judgment motion may be filed within 8 months of the filing of the Summons and Complaint or as set in Court’s Scheduling Order
- Motion shall be served at least 20 days before hearing
- Opposing papers shall be served at least 5 days before hearing.
- Amended Complaint – Complaint may be amended once as a matter of course within 6 months of filing, after that must have leave of the court.
- Defendant must file an Amended Answer 45 days after service of Amended Complaint.
- Court will issue Scheduling Order after consultation with parties, including all deadlines for completion of discovery and motions in the case, and a trial date.
- Depositions on Written Questions
- Written Interrogatories
- Request for Production of Documents
- Requests for Admissions (no limit on number unless court orders otherwise).
- Pretrial conference between attorneys and trial court judge to discuss logistics of trial.
- Trials (May be bench trial to the court or jury trial)
- Default Judgment – If no Answer within 45 days of service of Summons and Complaint, and after filing proof of service,
Plaintiff may submit Motion for Default Judgment for amount specified in Complaint
- Judgment is perfected by sending, with costs added, to Clerk’s Office, with docketing fee
- Satisfaction of Judgment is filed upon the party’s payment of the judgment ordered by the court.
FEDERAL CASE LITIGATION PROCESS
- COMPLAINT is filed in clerk of court’s office with the following documents:
- Civil Cover Sheet
- Certificate of Interest
- CD of Complaint, Civil Cover Sheet, and Certificate of Interest
- Filing Fee – $350
- Service of document upon opponent within 120 days of filing.
- CONSENT OR REFUSAL TO USE MAGISTRATE JUDGE.
- Answer to Complaint filed by Defendant within 20 days of service of Complaint.
- RULE 26(f) CONFERENCE
- Parties to confer 21 days before Scheduling Order is due to establish deadlines in case
- No Discovery may be conducted before Rule 26 (f) Conference.
- MANDATORY DISCLOSURES (Rule 26 (A))
- Each party identifies their witnesses and exhibits
- Due at or within 14 days of Rule 26 (f) Conference.
- SCHEDULING ORDER (Rule 16)
- Ct. orders deadlines in case and usually sets trial date
- Due 90 days after Answer or 120 days after service of Complaint.
- Depositions upon Written Questions (witnesses questioned under oath) (R 31)
- Interrogatories (written questions answered by opponent) (R 33)
- Request for Documents (R 34)
- Requests for Admissions (R 36)
- Responses due within 30 days.
- EXPERT WITNESSES (Rule 26 (2))
- Disclose 90 days before trial or as directed by Court
- Expert Report to include: statement of opinion, basis of opinion, data considered by witness, exhibits, compensation to be paid, other cases in which witness testified.
- SUMMARY JUDGMENT MOTION (Rule 56)
- Motion to have case decided taking non-moving party’s allegations as true
- Plaintiff may file anytime after 20 days of commencement of action and before deadline set in Scheduling Order
- Defendant may file anytime before deadline set in Scheduling Order
- Response brief due within 30 days of service of motion
- Reply brief due within 15 days of service of response brief.
- PRETRIAL REPORT (Rule 26 (3)
- Report identifies trial witnesses, exhibits, motions to exclude evidence, jury instructions, and verdict form.
- TRIAL (Rules 38 – 53)
- Scheduled by Court and usually conducted Monday through Friday 9 a.m. to 5 p.m., or subject to the Court’s calendar
- Jury is selected by parties by striking individuals from the pool
- Opening instructions from the Court to jury
- Attorneys make opening statements
- Plaintiff presents witnesses
- Defendant presents witnesses
- Closing Arguments by attorneys
- Jury Instructions by Court
- Jury deliberates and renders verdict.
Appeal must be made within 30 days after Entry of Judgment
Discovery: gathering statements from witnesses, forensic evidence (such as computer data), documentation, and depositions.
Dispositive Motions: filing of a “Motion for Summary Judgment” by either party. If the judge accepts the motion as evidence that the two sides agree on all important facts, he may make a judgment without a trial.
Pre-trial Order: taking the case to court if the case does not settle out of court; establishing particulars such as lists of witnesses, documents to be used, and proposed jury instructions.
“Jurors have become increasingly an audience waiting to be entertained.”
Trial: selection of a jury; opening statements by lawyers of each side; testimony of witnesses; closing arguments; reading of instructions to the jury.
Appeals: petitioning the courts to review decisions where the parties believe that the judge made a mistake.
A complete case including a trial may take one or more years to complete. Negotiated settlements are often achieved much sooner. To discuss the possible path your case may take, the costs involved, and potential benefits, schedule a consultation with an experienced Wisconsin lawyer.