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711.4 Determinations of timeliness, appealability

The commission's authority under the WFEA is limited, pursuant to Wis. Stat. §111.39(5), to reviewing the findings and orders of ERD's administrative judges, and not the decisions of ERD investigators or other employees. A petition for commission review is not a substitute for departmental review of the decisions of ERD's investigation bureau. Balele v. State of Wis. Dep't of Corrections (LIRC, 06/13/18).

The question of whether a layoff is permanent and terminates the employment relationship is a fact-specific one. It is inappropriate to resolve a factual dispute regarding the timeliness of a complaint without an evidentiary hearing. Krentz v. Carew Trucking, Inc. (LIRC, 2/7/13).

It is not necessary to hold an evidentiary hearing in a statute of limitations case when the Complainant’s contentions are inherently incredible. In this case, the Complainant’s assertion that she did not have adequate notice of her discharge was not reasonable or credible and could not be the basis of a genuine issue of material fact just because she asserted that it was. Stanitsa v. Med. College of Wis. (LIRC, 09/21/12).

It is inappropriate to resolve a factual dispute regarding the timeliness of a complaint without an evidentiary hearing, unless the Complainant’s contentions are inherently incredible. In this case, the Complainant’s assertions were inherently incredible. They did not warrant further hearing. The dismissal of the complaint as untimely was affirmed. Hootsell v. Waukesha County (LIRC, 06/09/11).

The fact that certain allegations in the complaint were untimely, and thus could not in themselves be found to constitute discreet violations of the Wisconsin Fair Employment Act, does not mean that the events cannot be considered as evidence bearing on the question of whether acts which occurred within the 300-day period were discriminatory. The statute of limitations is not a rule of evidence. Clark v. Friskies Petcare (LIRC, 08/16/01).

An order by the Administrative Law Judge which remanded a case to investigation and which also denied the Complainant's motion for leave to amend his complaint because the proposed amended complaint was time-barred is a final order with respect to the denial of permission to amend the complaint. It does not matter that the Equal Rights Division treats the order as being interlocutory. LIRC has authority to act on the Complainant’s petition for review. James v. Associated Schools, Inc. (LIRC, 03/24/89).

A hearing examiner’s conclusion that a complaint is timely filed is not subject to appeal until the case has been decided on the merits. Fox v. Massey-Ferguson (LIRC, 02/28/83).

Where the Equal Rights Division dismissed a complaint as untimely prior to investigating the complaint, the proper appeal was by writ of mandamus to circuit court rather than to LIRC, since LIRC's jurisdiction is limited by sec. 111.36(3m), Stats. Chester v. Int'l Harvester (LIRC, 06/05/80). [Ed. note: Sec. 111.36(3m), Stats., has been replaced by sec. 111.39(5)(a), Stats.]