Timothy L. Hoeller v. Wisconsin Equal Rights Division

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 22, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP498 Cir. Ct. No. 2021SC1518

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

TIMOTHY L. HOELLER,

PLAINTIFF-APPELLANT,

V.

WISCONSIN EQUAL RIGHTS DIVISION, HEIDI MARSHALL AND
JAMES CHIOLINO,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
GWENDOLYN G. CONNOLLY, Judge. Affirmed.

¶1 DUGAN, J.1 Timothy L. Hoeller appeals from an order of the
circuit court dismissing his small claims action filed against the Wisconsin Equal

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(a) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP498

Rights Division (ERD), Heidi Marshall, and James Chiolino. 2 The circuit court
dismissed Hoeller’s claims on the grounds of sovereign immunity, quasi-judicial
immunity, and qualified immunity, as well as failure to state a claim for which
relief can be granted. For the reasons set forth below, this court affirms.

BACKGROUND

¶2 Hoeller filed a claim under 42 U.S.C. § 1983 in small claims court
alleging that the ERD, Marshall, and Chiolino violated Hoeller’s statutory rights in
failing to investigate and pursue a complete determination of a charge of
discrimination that he filed with the Equal Employment Opportunity Commission
(EEOC) against his former employer, Carroll University. Hoeller alleged that
Carroll discriminated against him when it terminated his employment in April
2017 and then failed to rehire him in January 2018, with the final act of alleged
discrimination occurring on February 28, 2018. The charge of discrimination that
Hoeller filed with the EEOC on February 25, 2019, listed the ERD as the relevant
state agency, but the EEOC, as the filing agency, ultimately issued Hoeller a
Notice of Right to Sue letter on March 3, 2019, and dismissed Hoeller’s charge as
untimely filed.

¶3 The defendants filed a motion to dismiss Hoeller’s instant complaint,
arguing that sovereign immunity, quasi-judicial immunity, and qualified immunity
required dismissal of Hoeller’s complaint. The defendants also argued that

2
Marshall is an ERD program supervisor, and Chiolino is the director of the ERD
Bureau of Hearings and Mediation.

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Hoeller failed to state a claim for which relief can be granted. The circuit court
agreed and granted the motion.3 Hoeller now appeals.

DISCUSSION

¶4 “A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint.” Data Key Partners v. Permira Advisers LLC, 2014
WI 86, ¶19, 356 Wis. 2d 665, 849 N.W.2d 693 (citation omitted). “[W]e accept as
true all facts well-pleaded in the complaint and the reasonable inferences
therefrom.” Id. Whether a claim is sufficient to withstand a motion to dismiss is a
question of law that we review de novo. Hermann v. Town of Delavan, 215
Wis. 2d 370, 378, 572 N.W.2d 855 (1998).

I. Hoeller’s Claims Against the ERD

¶5 The defendants argue that Hoeller’s complaint against the ERD must
be dismissed on the basis of sovereign immunity. The defendants argue that the
legislature has not consented to suit under 42 U.S.C. § 1983, and the ERD is not a
“person” within the meaning of § 1983. This court agrees.

¶6 The State cannot be sued without the legislature’s explicit consent,
Lister v. Board of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 291, 240
N.W.2d 610 (1976), and the State’s immunity from suit applies to a claim brought
under 42 U.S.C. § 1983, see Will v. Michigan Dep’t of State Police, 491 U.S. 58,
66 (1989). This same immunity from suit for a claim under § 1983 enjoyed by the

3
The circuit court’s oral ruling included dismissing Hoeller’s complaint against the
Department of Justice (DOJ). The DOJ is not a party to this appeal. However, we note that the
same reasons for dismissal applicable to the ERD would be applicable to the DOJ.

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State extends to arms of the State, including its agencies. See Lister, 72 Wis. 2d at
291. The ERD is an agency of the State, and thus, it enjoys the same immunity
from suit for a § 1983 claim as the State, unless otherwise stated by the legislature.
Hoeller has failed to provide any explicit consent to suit by the legislature. As a
result, the ERD enjoys sovereign immunity, and the court has no personal
jurisdiction over the ERD. See Lister, 72 Wis. 2d at 291. Hoeller’s complaint
against the ERD must be dismissed for this reason alone.

¶7 As an additional basis, a claim under 42 U.S.C. § 1983 can only be
brought against a “person” within the meaning of § 1983. See Lindas v. Cady,
150 Wis. 2d 421, 431, 441 N.W.2d 705 (1989). It is well-settled that the State and
its agencies are not “persons” within the meaning of § 1983. Lister, 72 Wis. 2d at
295 (“[S]tate agencies and governmental units are not ‘persons’ for the purposes
of damage suits under that section.”). The ERD, as a state agency, is therefore not
considered a person within the meaning of § 1983 and is not subject to a § 1983
claim. Therefore, Hoeller’s complaint against the ERD must also be dismissed for
this reason.

II. Hoeller’s Claims Against Marshall and Chiolino

¶8 The defendants also argue that Hoeller’s complaint against Marshall
and Chiolino must be dismissed on the basis of quasi-judicial immunity and
qualified immunity. This court again agrees.

¶9 “[Q]uasi-judicial immunity extends to non-judicial officers when
they are performing acts intimately related to the judicial process.” Paige K.B. v.
Molepske, 219 Wis. 2d 418, 424, 580 N.W.2d 289 (1998). The ERD, while it is
not a court, is nonetheless considered a quasi-judicial adjudicatory body to which
quasi-judicial immunity extends, and its members are considered to perform duties

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No. 2021AP498

functionally comparable to those of judicial officers when performing
discretionary functions. See Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir.
1999). The decision to investigate a complaint of discrimination is considered a
discretionary decision to which quasi-judicial immunity attaches. See id.

¶10 Marshall and Chiolino, as members of the ERD, are consequently
entitled to quasi-judicial immunity. Furthermore, assuming Marshall and Chiolino
had any authority over whether to investigate Hoeller’s charge of discrimination
filed with the EEOC, such a decision would have been a discretionary decision
and therefore, a function of their roles to which quasi-judicial immunity attaches.
As such, Marshall and Chiolino are immune from suit as a result of quasi-judicial
immunity, and Hoeller’s complaint against them must be dismissed on this basis.

¶11 Furthermore, Marshall and Chiolino are entitled to qualified
immunity, and Hoeller’s complaint against them must be dismissed on this basis
as well. “Government officials enjoy qualified immunity from suit for damages
arising out of discretionary functions.” Baxter v. DNR, 165 Wis. 2d 298, 302, 477
N.W.2d 648 (Ct. App. 1991). Marshall and Chiolino are considered government
officials in their roles with the ERD, and we have already established that any
potential decision to investigate Hoeller’s charge of discrimination with the EEOC
would have been a discretionary function. Thus, qualified immunity applies.

¶12 To defeat qualified immunity, Hoeller must demonstrate that
Marshall and Chiolino violated a clearly established constitutional right using
closely analogous case law. See Stipetich v. Grosshans, 2000 WI App 100, ¶26,
235 Wis. 2d 69, 612 N.W.2d 346 (citation omitted). Hoeller attempts to use
Eighth Amendment case law involving prisoners and a case in which the court
dismissed a university professor’s claims. This court rejects any argument that

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this authority constitutes closely analogous case law that demonstrates a clearly
established constitutional right that defeats the application of immunity here.4 See
Barnhill v. Board of Regents of UW Sys., 166 Wis. 2d 395, 408, 479 N.W.2d 917
(1992) (defining “clearly established law” as “sufficiently analogous” to provide
the public official with guidance on the lawfulness of his or her conduct).
Consequently, Marshall and Chiolino are entitled to qualified immunity, and
Hoeller’s complaint against them must be dismissed.

III. Failure to State a Claim For Relief

¶13 In the alternative, this court also agrees with the defendants that
Hoeller’s complaint must be dismissed for failing to state a claim upon which
relief can be granted. In short, Hoeller has failed to identify a federal interest
violated by the defendants to serve as the basis for his 42 U.S.C. § 1983 claim.
See Dowd v. City of New Richmond, 137 Wis. 2d 539, 553-54, 405 N.W.2d 66
(1987) (“[T]he plaintiff must have suffered the deprivation of a right or interest
protected either by the United States Constitution or by federal statute.”).

¶14 Hoeller asserts that the defendants’ failure to investigate his charge
of discrimination that he filed with the EEOC—not the ERD—violated his rights
to due process and equal protection, and on appeal, he points to WIS. ADMIN.
CODE § DWD 218.05 as the law violated by the defendants when they allegedly
failed to investigate his charge.

4
To the extent that Hoeller has presented unpublished cases as support for his argument,
this court rejects his attempt to do so. See WIS. STAT. § 809.23(3)(a).

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¶15 Hoeller’s position is untenable because, in making this argument,
Hoeller fails to recognize that the defendants are state actors, and Hoeller provides
no authority to support the contention that the defendants had any duty to
investigate a charge of discrimination that he chose to file with the EEOC, or any
duty to make the EEOC perform an investigation. As the circuit court recognized,
Hoeller’s complaint was “that the [EEOC] essentially did not move fast enough in
its investigation. That is not an entity that is here right now, and indeed there has
been no demonstration of what supervisory role [the defendants] had over the
EEOC.” Holding the defendants responsible for investigating a charge of
discrimination that Hoeller chose to file with the EEOC would be an absurd result
that fails to recognize the basic structure of the ERD and the EEOC and the
distinction between the ERD as a state agency and the EEOC as a federal agency,
each governed by their own rules and regulations for processing allegations of
discrimination.

¶16 Moreover, any argument Hoeller raises must contend with the fact
that his charge of discrimination filed with the EEOC was filed well past the 300-
day filing deadline, and the failure to timely file his charge of discrimination
prevented any investigation that may have happened if the charge was timely filed.
See Hoeller v. Carroll Univ., No. 19-CV-850-JPS, 2019 WL 6352670 (Nov. 27,
2019) (dismissing Hoeller’s charge of discrimination for being filed more than 300
days after the last alleged incident of discrimination). Thus, anything the
defendants could have done to investigate, or make the EEOC investigate, is of no
consequence because Hoeller’s original failure to comply with the filing deadline
prevented any possible investigation that would have taken place.

¶17 In sum, we conclude that the circuit court did not err when it
dismissed Hoeller’s complaint. To the extent that Hoeller has raised additional

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arguments that we have not expressly addressed above, we summarily deny his
arguments as undeveloped and not properly supported by legal authority. See
State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
Accordingly, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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