792 Decisions appealable to LIRC

The Labor and Industry Review Commission has the authority to review appeals from an Administrative Law Judge’s order dismissing a complaint pursuant to a settlement agreement. Fettig v. County of Fond du Lac (LIRC, 07/14/06).

The Labor and Industry Review Commission routinely reviews appeals in cases where an Administrative Law Judge has simply issued an order dismissing the complaint without the benefit of a hearing. Cases of this type include review of an ALJ’s order of dismissal based upon a Complainant’s failure to appear for the hearing; a Complainant’s failure to file a complaint within 300 days of the alleged discrimination, and a Complainant’s failure to respond within twenty days to correspondence sent by certified mail. Fettig v. County of Fond du Lac (LIRC, 07/14/06).

The Complainant was a first grade teacher at a Catholic school. She alleged that she had been discriminated against on the basis of age in violation of the Wisconsin Fair Employment Act. The Respondent filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the question of whether a position serves a ministerial or ecclesiastical function must be resolved because if the position involved is ministerial a discrimination complaint is blocked by constitutional concerns for separation of church and state under the Free Exercise Clause of the U.S. Constitution and the Freedom of Worship Clause of the Wisconsin Constitution. An Administrative Law Judge denied the motion to dismiss, ruling that the position was not ministerial, which allowed the discrimination claim to proceed. The Respondent petitioned the Labor and Industry Review Commission to review the ALJ’s decision. LIRC denied the petition for review because the ALJ’s decision was not a final decision and order. LIRC’s decision was overturned and remanded by the circuit court after the Respondent filed petitions for immediate review and a writ of prohibition to delay any further proceedings until the review was completed. While LIRC’s earlier refusal of review was understandable, constitutional concerns required LIRC to resolve the issue of whether the position involved was ministerial. Coulee Catholic Schools v. LIRC (La Crosse Co. Cir. Ct., 10/20/05).

Cases involving employer retaliation relating to Section 103.10 of the Family and Medical Leave Act of the type listed under sec. 111.322(2m) of the Fair Employment Act are appealable to the Labor and Industry Review Commission rather than to circuit court. Kayler v. Stoughton Trailers (LIRC, 10/27/97).

LIRC has authority to review a decision by an Administrative Law Judge dismissing a case for lack of jurisdiction. There is no right to appeal the ALJ's decision directly to Circuit Court because the order of dismissal of the ALJ is not a decision on appeal to the administrator as contemplated by sec. Ind 88.03, Wis. Admin. Code, for which direct appeal to Circuit Court is provided by rule. Heinritz v. Lawrence Univ. (LIRC, 09/30/93).

The Wisconsin Family and Medical Leave Act prohibits discharging or discriminating against an individual for opposing a practice prohibited under the Act. Other kinds of retaliation relating to the Family and Medical Act are now defined as discrimination under the omnibus anti-retaliation provision of the Wisconsin Fair Employment Act, sec. 111.322(2m), Stats. These cases are appealable to the Labor and Industry Review Commission, rather than to Circuit Court. Roncaglione v. Peterson Builders (LIRC, 08/11/93).

Sec. 808.03(2), Stats., governs permissive appeals to the Court of Appeals. Since Ind 88.14(2), Wis. Admin. Code, provides that discovery connected with hearings before the Equal Rights Division is to be the same as that set forth in Ch. 804, Wis. Stats., LIRC believes that by analogy it has the same authority to review an Administrative Law Judge’s discovery order as the Court of Appeals has to review a discovery order of a circuit court. Bahr v. Levine & Epstein (LIRC, 06/05/92). [Ed. note: This decision was expressly reversed in Callaway v. Madison Metro. Sch. Dist. (LIRC, 01/13/93).]

LIRC has discretionary authority under sec. 808.03(2), Wis. Stats., to review non-final discovery orders and sanctions. LIRC may exercise its discretionary authority to review those matters when it determines that an interlocutory review will materially advance termination of the litigation or clarify further proceedings in the litigation, protect the petitioner from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice. Grounds for discretionary review were not established by the Respondent’s interlocutory appeal of an award of attorney fees as a discovery sanction. Murphy v. Roundy’s (LIRC, 05/11/92). [Ed. note: This decision was expressly reversed in Callaway v. Madison Metro. Sch. Dist. (LIRC, 01/13/93).]

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. (decision on petition for rehearing) (LIRC, 03/24/89).

LIRC has the authority to review a non-final order of an 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. James v. Associated Schools, Inc. (LIRC, 02/03/89).

Where dismissal of a portion of a complaint on statute of limitation grounds is first made by an Administrative Law Judge after a hearing, and no preliminary determination has been made under Section Ind 88.03, Wis. Adm. Code, the untimeliness ruling is properly appealed to the Labor and Industry Review Commission and not to Circuit Court. Couillard v. Am. Family Mutual Ins. Co. (LIRC, 04/14/88). [Ed. note: sec. Ind. 88.03, Wis. Admin. Code, has been replaced by sec. DWD 218.05, Wis. Admin. Code.]

Only final orders are appealable. A final order is one which disposes of the entire matter in litigation as to one or more of the parties. Therefore, the dismissal of certain of the Complainant's claims at hearing because of untimeliness was not an appealable final order. When an appeal of that dismissal was included with the appeal from the final decision on the merits of the remaining allegations of the complaint, it was timely. Couillard v. Am. Family Mutual Ins. Co. (LIRC, 04/14/88).

Where the Hearing Examiner bifurcated the hearing and issued a decision finding liability and ordering that a hearing be scheduled on the remaining issue of remedy, the Commission concluded that it had the authority to accept and address an appeal of the Respondent from the liability finding prior to the holding of a hearing on remedy. Davis v. City of Milwaukee (LIRC, 09/05/86).

An examiner's dismissal of a complaint at a no probable cause hearing for failure of a Complainant to appear is appealable to the Commission, and the Commission may order that testimony be taken before an examiner as to whether the Complainant had good cause not to appear at the hearing. Schneeberger v. A.M.C. (LIRC, 01/27/84); Moore v. Roundy's Industrial, Inc. (LIRC, 02/16/84).

There is no provision for judicial review of an examiner's findings of fact, conclusions of law and order issued after hearing. Such decisions must first be appealed to the DILHR Commission. Foster v. DILHR (Dane Co. Cir. Ct., 02/24/77).