791 Decisions not appealable to LIRC

The commission was unable to review the merits of the complaint where the ALJ’s decision did not dispose of the matter but left some proceedings (a ruling on a motion for sanctions) pending. The petition for review was dismissed and the matter returned to the ERD. Schott v. Lake Geneva Animal Hosp. (LIRC, 08/29/23).

A final decision, which may be appealed under Wis. Admin. Code §218.21(1), disposes of the entire complaint (all claims in the complaint) and leaves no further proceedings on that complaint pending before the division. An administrative law judge's dismissal of an appeal of a no probable cause decision, based on the Complainant's failure to file a timely appeal of the no probable cause decision, is not a final decision within the meaning of §218.21(1) because the Complainant's complaint included other claims which were still being decided before an administrative law judge. As a result, it cannot be appealed as a final decision or order. Wortman v. Verascape, Inc. (LIRC, 05/18/21).

The commission's review authority under the WFEA is limited, pursuant to Wis. Stat. sec. 111.39(5), to findings and orders of the Equal Rights Division’s administrative law judges, and not the decisions of Equal Rights Division investigators or other employees. LIRC cannot accept a petition to review a determination by an Equal Rights Division investigator that was never appealed to the Equal Rights Division’s hearing section. Balele v. State of Wis., Dep't of Corrections. (LIRC, 06/13/18).

Only final decisions may be appealed to LIRC. LIRC is unable to accept an appeal where some issues are still pending before the Equal Rights Division. Ford v. Briggs & Stratton, Corp. (LIRC, 04/19/18).

LIRC does not have authority to consider appeals of actions of Equal Rights Division employees other than administrative law judges; its review authority is limited to review of the administrative law judges’ findings and orders. Therefore, LIRC will not consider an appeal of an action by a section chief of the ERD's Civil Rights Bureau. Balele v. PDQ Food Stores, Inc. (LIRC, 07/03/14).

The Commission continues to take the view that a Complainant who disagrees with rulings of an ALJ is required to proceed with the hearing in order to preserve his right to review of those rulings on appeal, and that if the Complainant instead refuses to proceed with the hearing due to his objections to the rulings, and his complaint is dismissed as a result, he is deemed to have waived his objections to those rulings. This rule is important to the integrity of the system in place for litigation, appeal and review of Equal Rights cases, because it secures the non-appealability of interlocutory decisions of ALJs. Mullins v. Wauwatosa Sch. Dist. (LIRC, 05/17/13).

LIRC’s jurisdiction is restricted to the review of findings and orders by Administrative Law Judges. LIRC does not accept appeals from dismissals of complaints made by the Investigation Section of the Equal Rights Division. Burton v. United Gov’t Serv. (LIRC, 11/21/11).

The Complainant refused to proceed at the hearing because he objected to the Administrative Law Judge’s decision not to postpone the hearing. The Administrative Law Judge dismissed the complaint based on the Complainant’s failure to present evidence to support his case. The Labor and Industry Review Commission rejected the Complainant’s appeal of the decision. The Complainant waived his objections to the Administrative Law Judge’s denial of his postponement request by his failure to proceed at the hearing. Jackson v. Transwood, Inc. (LIRC, 04/27/07).

The Administrative Law Judge issued a ruling concluding that the Complainant’s position as a first-grade teacher was not a ministerial position as that term is used for purposes of considering whether a state adjudication interferes with the free exercise clause of religion under the First Amendment to the U.S. Constitution, and that the Equal Rights Division had subject matter jurisdiction over the complaint. The ALJ’s ruling was not a final decision and order; therefore, the Labor and Industry Review Commission was not authorized to review the Respondent’s petition for review. Ostlund v. Coulee Catholic Schools (LIRC, 03/03/05) ; rev’d sub nom. Coulee Catholic Schools v. LIRC (La Crosse Co. Cir. Ct., 10/20/05). (See sec. 792, infra.)

Interlocutory rulings are not appealable at the time they are made. A party must wait until a final decision is issued in the case and it becomes appealable to LIRC to raise any claim that the ALJ erred in such an interlocutory ruling. Fauteck v. Sinai Samaritan Med. Ctr. (LIRC, 11/09/00).

The administrative rules do not give LIRC the authority to review a Department determination that an initial determination of no probable cause was not timely appealed. Geasland v. Society Ins. (LIRC, 07/27/99).

The Labor and Industry Review Commission will not exercise its appellate authority to entertain requests to review non-final decisions by Administrative Law Judges. Kielas v. Arcade Drivers School (LIRC, 06/17/94).

The Labor and Industry Review Commission has determined that it should not exercise its appellate authority to review non-final decisions and orders by an Administrative Law Judge. Erickson v. City of Menasha (LIRC, 01/27/94).

The Labor and Industry Review Commission will not exercise appellate authority to entertain requests to review non-final rulings by Administrative Law Judges. Callaway v. Madison Metro. Sch. Dist. (LIRC, 01/13/93). [Ed. note: This decision expressly reverses LIRC’s decisions in Murphy v. Roundy’s (LIRC, 05/11/92) and Bahr v. Levine & Epstein (LIRC, 06/05/92), found in Section 792 of this Digest.]

LIRC has generally not accepted appeals of interim or non-final orders. Its rationale for not accepting review in those cases is to avoid disruption of the orderly adjudication of cases before the Equal Rights Division. Mattson v. Green Bay Broad. Co. (LIRC, 08/28/90, amended 09/21/90).

LIRC will not accept petitions for review of non-final decisions, even if a party asserts that there are “compelling reasons” for doing so in a particular case. Here, LIRC declined to accept the Respondent’s petition for review of an order by the Administrative Law Judge denying the Respondent’s motion to dismiss the underlying complaint on the basis of res judicata. LIRC commented that it did so “notwithstanding the apparent meritoriousness of the Respondent's arguments” on the res judicata issue. Local 322, Allied Indus. Workers of Am. v. Johnson Controls (LIRC, 09/11/90).

LIRC will not grant a declaratory ruling which would functionally constitute an appeal from a decision by the administrator of the Equal Rights Division under sec. Ind 88.03(2), Wis. Admin. Code. v. Mequon Care Ctr. (LIRC, 11/13/89).

There is no right to LIRC review of preliminary determinations reviewed by the administrator of the Equal Rights Division under sec. Ind 88.03(2), Wis. Admin. Code. Berntson v. Wis. Winnebago Business Comm. (LIRC, 10/10/89).

The Commission declines review of non-final orders in order to avoid unnecessary delays and disruption of the orderly adjudication of cases. Giese & Field v. Wausau Ins. (LIRC, 10/25/88).

The Labor and Industry Review Commission is without authority to act on a petition for review of an Administrative Law Judge's decision finding that there is probable cause to believe allegations of a complaint and ordering the matter remanded to conciliation. Binder v. Nercon Eng’g & Mfg. Co. (LIRC, 07/23/87).

A complaint was dismissed for the Complainant’s failure to appear at the hearing. The Labor and Industry Review Commission remanded the matter and ordered that a hearing be held to determine whether the Complainant had good cause for his failure to appear at the hearing. A subsequent decision of the hearing examiner that the Complainant did have good cause for his failure to appear at the hearing was not appealable to the Labor and Industry Review Commission because it was an interim order in the case. The Commission has consistently declined to review interim, or non-final, orders issued by department examiners.Vega v. Larsen Co. (LIRC, 07/03/85).

The Labor and Industry Review Commission does not have jurisdiction to review Equal Rights Division decisions issued under sec. 101.055, Stats., regarding public employee occupational safety and health. Marchewka v. Milwaukee County (LIRC, letter ruling, 04/16/85).

LIRC will not accept an appeal from a dismissal of a complaint by the Equal Rights Division’s Investigation Bureau. Its appellate jurisdiction is restricted to review of examiners’ findings and orders. Mathews v. Marc Plaza Hotel (LIRC, 03/31/83).

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.]

LIRC has no jurisdiction to review non-final findings and orders issued by the Equal Rights Division. Opolka v. Kolbe Millwork (LIRC, 12/20/79).

A probable cause finding made by a hearing examiner at a no probable cause hearing is not reviewable. v. AMC (DILHR, 01/30/75).