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863 LIRC’s lack of authority to determine that a claim or defense is frivolous

[Ed. Note: Sec. 814.025(1), Stats., was repealed by Supreme Court Order No. 03-06, effective July 1, 2005. Sec. 802.05, Stats., was also repealed by the Supreme Court. It was re-created to conform with Rule 11 of the Federal Rules of Civil Procedure.]

The commission has no authority to make its own findings under Wis. Stat. § 227.483. Where the ALJ failed to rule on a request for sanctions, the commission has no option but to remand the matter to the ALJ so that she may do so. Schott v. Lake Geneva Animal Hosp. (LIRC, 08/29/23).

An allegation that the Complainant’s discrimination claim was frivolous requires an evidentiary hearing by the administrative law judge and a factual finding regarding the Complainant’s intent. The Commission does not have the authority to make its own findings as to frivolousness and must remand to the administrative law judge so that the appropriate findings may be made. Jackson v. Klemm Tank Lines (LIRC, 03/26/15).

A party requesting an award of attorney’s fees and costs pursuant to sec. 227.483, Stats., (“Costs Upon Frivolous Claims”) must do so prior to the end of the proceedings before the Administrative Law Judge. LIRC cannot act on a request made for the first time before LIRC. Drabek v. Major Indus. (LIRC, 06/09/11).

Any request for an award under the frivolous claims statute, sec. 227.483, Stats., must be made to the Administrative Law Judge. LIRC can then review the ALJ’s ruling on the request. LIRC cannot act on a request made for the first time before LIRC. Kutschenreuter et al v. Roberts Trucking (LIRC, 04/21/11).

Section 227.483, Wis. Stats., does not address the question of exactly when during a case a party should make a motion for a finding that a claim or defense was frivolous. However, some matters of timing are implicit in the fact that the statute authorizes an administrative law judge to make a finding under the statute “at any time during the proceeding.” From this it is implicit that a party does not have to wait until the end of the proceeding. It is also implicit that a party must request such a finding prior to the end of the proceedings before the ALJ. Other considerations relevant to the timing question arise from limitations implicit in the Wisconsin Fair Employment Act. The authority of the Labor and Industry Review Commission extends only to review of an ALJ’s final findings and orders in a case within the meaning of sec. 111.39, Wis. Stats. From this it is clear that the only way in which LIRC can review a ruling by an ALJ under sec. 227.483, Wis. Stats., is in the course of conducting a review of an ALJ’s final findings and order in a case, when the findings and order include such a ruling. A party who wishes to have a ruling on a request for a finding of frivolousness and an award of costs and fees under sec. 227.483, Wis. Stats., must make such a request before the Administrative Law Judge issues his or her final findings and order in the case. The Administrative Law Judge can then include a ruling on the request in the ALJ’s final findings and order in the case. If this procedure is followed, then the ALJ’s ruling on the 227.483 request will be reviewable by the Labor and Industry Review Commission. Henderson v. DOC (LIRC, 03/19/09).

The Respondent requested that LIRC remand a case to the Administrative Law Judge with directions to grant the Respondent its costs and attorney’s fees on the ground that the Complainant’s appeal of the decision by the Administrative Law Judge was frivolous under sec. 227.483, Stats. LIRC denied the request. While the record evidence did not support the Complainant’s underlying discrimination claim, it also did not support the Respondent’s assertions that the Complainant had no evidence to reasonably support his discrimination claim, or that he had maintained that claim in bad faith or solely for the purpose of harassing the Respondent. Dobberstein v. NSight Teleservices (LIRC, 02/23/07).

The arguments raised by the Respondent in an effort to establish that the Complainant’s position in this case was frivolous were not addressed. It would be superfluous to do so under the controlling decision in Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 849 (Ct. App. 1986). Ring v. Midwest Directories (LIRC, 01/26/96).

Neither Ch. 227, Wis. Stats., nor the Wisconsin Fair Employment Act expressly or impliedly authorizes the Labor and Industry Review Commission to award attorney’s fees to an employer for frivolous employment discrimination claims brought by an employee. Tatum v. LIRC, 132 Wis. 2d 411, 392 N.W.2d 840 (Ct. App. 1986).

The Labor and Industry Review Commission has no authority to award attorney’s fees to an employer after the Complainant withdraws her complaint of employment discrimination. Sec. 814.025, Stats., does not authorize the Commission to make determinations of frivolousness or to assess costs and reasonable attorney's fees against Complainants in favor of Respondents. Jeffries v. Cameo Convalescent Ctr. (LIRC, 08/09/85); aff’d sub nom. Cameo Convalescent Ctr. v. LIRC (Milwaukee Co. Cir. Ct., 09/02/86).

The Wisconsin Fair Employment Act does not impliedly authorize the Labor and Industry Review Commission to award attorney’s fees to prevailing employers in employment discrimination actions. Sec. 814.025, Stats., relating to awards of fees for bringing a frivolous claim in courts, applies only to court proceedings. Niles v. Fleet Farm of Green Bay (LIRC, 07/25/85); aff’d sub nom. Fleet Farm of Green Bay v. LIRC (Ct. App., Dist. III, unpublished summary disposition, 07/16/86).